The United Kingdom is working its way through a crisis in its government focused on its relationship with the European Union but going beyond Brexit. Something similar could be said of a number of other countries, whether in the European Union or beyond it. Russia, which I more usually write about for TAI, would be one example of that, as Putin’s constitutionally sanctioned presidential term ends in 2024. The nature and exercise of sovereignty, whether internally or externally, are critical issues in both these and other cases.
The British System
It is not strictly true to say that the UK does not have a written constitution. But the absence of a single and readily available document setting out its terms makes for confusion abroad and questioning within the country. The United States, by contrast, has an unusually compact written constitution, amended or reinterpreted over time both by formal process and by judicial review. Common Law links both the British and the American ways of dealing with changing realities. Lengthy and detailed written constitutions are typically inflexible and become dated, often quite quickly. France is on its fifth republican constitution over the past two centuries, for example.
It has recently become a commonplace within the blizzard of all-embracing and often cantankerous slogans plaguing British politics to express the opinion that the British system has broken down and needs formal revision. Given the present state of things both political and societal, that would be difficult to achieve in proper focus. But the foundations underpinning the British constitution, known in shorthand as the Crown-in-Parliament, have been weakened in recent years. The division of powers inherent in that concept may be understood, however roughly, as: Her Majesty’s Government encompassing the Executive Branch; Parliament as the Legislature to which that Government is to put legislative propositions as required, with its overall political authority defined by its ability to command a majority in the Commons; the renewal or replacement of that authority at defined intervals by means of general elections through first past the post contests in constituencies whose boundaries are intended to be reviewed independently from time to time to ensure balance; and a Judicial arm responsible for the exercise of justice in accordance with Common Law.
The flexibility of this system to changing circumstances has depended on a historically derived pattern of statute law, precedent, and shared and respected conventions. The 1689 Bill of Rights was a critical factor in securing its nature as the Civil War that had troubled England, Scotland, Wales, and Ireland earlier in that century was brought to an end. The present state of politics in the UK shows, however, that this constitutional pattern is once more under pressure. The Conservative Party is in government but unable to command a majority in Parliament. That Government is prevented by the Labour opposition—with the support of other parties at present unwilling to face the voters—from calling an election. A national vote to resolve a parliamentary deadlock would until recently have been the constitutional answer to restoring effective government.
The immediate constitutionally based reasons for this uncertain and potentially dangerous situation are twofold. A Fixed Parliamentary Act was introduced on September 15, 2011, so as to give assurance to the Liberal and Conservative parties, which were then forming a coalition government, of its future stability. That Act made it mandatory that a general election called before the five-year term of Parliament was up should be approved in Parliament by a two-thirds majority. Second, innovative decisions by the current Speaker have allowed parties opposed to the Government to set the parliamentary agenda when they can command a temporary majority. Divisions within the Conservative Party and the government’s dependence on the Northern Ireland Democratic Unionist Party for a parliamentary majority have allowed those opposed to the Government from time to time to seize control of the parliamentary agenda. The effect has been to undermine or reject Government policies intended to carry through the verdict of the 2016 referendum on the question of leaving the European Union.
The overall effect of these changes has been to paralyze the House of Commons. Those opposing the Government are united in voting against it but divided beyond that. Parliament voted by a substantial majority for negotiations with the European Union, subject to a two-year deadline, to begin to implement Britain’s exit by March 29, 2019. Nearly all Members of Parliament were elected in 2017 on party mandates that undertook to deliver Brexit. The argument since has become clouded, with those shifting to Remain often reluctant to admit the fact. Parliament has three times, and by notable majorities, rejected the Withdrawal Agreement accepted by then-UK Prime Minister Theresa May and subsequently insisted on by EU negotiators as non-negotiable. Parliament has also voted, in less impressive numbers, to rule out the obvious alternative of leaving the European Union on WTO terms, usually described as “No Deal”, if the only one offered from Brussels continues to be the one that has been rejected so decisively and repeatedly by the House.
The next stage of the story is scheduled to be reached by the end of this month, when the negotiating period agreed with the European Union to provide for Article 50 talks to go beyond their previously scheduled date of March 29 will expire. A Commons majority legislated in early September to compel Prime Minister Johnson, very much against his will and in denying his call for a General Election, formally to ask the EU for a further extension up until January 31, 2020, or possibly later if the EU preferred it, unless a Withdrawal Agreement had been reached in good time before October 31. It was a central purpose of the Act to rule out a no-deal UK exit. There is no telling now as to whether or when a General Election might follow, whatever the position by the end of October.
At some stage however the issues of who is to govern Britain beyond the immediate present and under what conditions, including constitutional conditions, have to be addressed. This now includes a third and freshly minted constitutional complication, which amounts to a claim by the judicial branch to a significant role in political affairs.
The UK Supreme Court has not before been thought of as filling the same purposes as its equivalent by name in the United States. Nor have its members been subject to questioning by Parliament in the same way as U.S. Supreme Court nominees are by the U.S. Senate. Their political orientations have therefore not been taken into account. The UK court ruled on September 24 that Prime Minister Johnson had acted unlawfully in advising the Queen to prorogue (suspend) Parliament for five weeks to cover annual Party Conferences and to prepare the Queen’s Speech, which is normally presented at the start of a new Parliamentary Session to introduce a new Government’s program. Such a judgement was made, it seems, without convincing precedent. Lower Courts had taken the position that the matter was not justiciable. The Supreme Court ruled otherwise, on the ground that the Prime Minister’s real aim was to prevent Parliament from fulfilling its necessary role in examining issues of deep moment. The Judges clearly had Brexit in mind in this instance. Their ruling introduces, according to a considerable number of authorities, a new factor into the British constitution, with the British Courts reaching out beyond their previous role of exercising justice within the frameworks of Common Law or the Scottish and other legal systems into exercising authority, as they deem appropriate, over parliamentary issues.
The Supreme Court’s September 24 ruling has as yet undetermined consequences arising from its “new legal doctrine,” as a retired Judge from the UK’s highest court put it even while personally approving the verdict as an example of the flexibility of Britain’s unwritten constitution in adapting to new circumstances. Other highly qualified constitutional analysts have agreed that the Supreme Court’s written judgement expresses a new doctrine but dispute the arguments put forward in it as either historically valid or free of political bias. Public and celebratory comments made with Prime Minister Johnson obviously in mind by the President of the Supreme Court as to the judgement reached by the Court would appear to confirm that such political bias was inherent in its decision. The unanimous ruling of the Supreme Court has nevertheless had to be accepted by the Prime Minister. It will certainly make his ability to reach the deal he has been exploring with EU leaders even more difficult—to say nothing of its effect on his repeated undertaking to ensure Brexit by October 31, deal or no deal. There is moreover no reason to suppose that Parliament, which resumed its sittings on September 25, will do anything in concert in order to reach a stable outcome.
The British constitution is not a law unto itself while the UK remains a member of the European Union. EU law is, as I understand it, founded on different criteria from those of the Common Law. The EU authorities evidently see their decisions as being of higher authority in the UK than those of the UK Parliament. At any rate, those negotiating a withdrawal agreement with the UK have so far brushed aside the fact that the British Parliament has so decisively rejected their text. That text, or something like it, if accepted in the end by the UK, would also include a future role for the European Court of Justice in Britain’s affairs. Membership for the UK, as for other EU members, has included the adoption of EU laws into the UK’s legal system.
Restoring the sovereignty of the UK was central to the 2016 referendum result. Qualifying that sovereignty was central to the EU negotiators’ purposes in the negotiations that followed it. That much was predictable. Former Prime Minister Cameron’s recently published memoirs are, according to a number of its reviewers, a telling and distressed account of what he saw as the inflexibility and arrogance of EU representatives at the time of his search for possible EU reform. The Brussels authorities have consistently, with the backing of the more influential members of the European Union, sought to compel mere national governments or their peoples to accept their rulings, including founding members of the European Economic Community. That is the nature of the organization, in its search for ever closer union. The establishment of the Eurozone and the aim of its extension has reinforced that purpose, for good or ill. So too has the so far unfulfilled logic of the need for its institutions to be strengthened and centralized if the euro is to work reliably. The UK’s decision to stay out of the euro has, so far at least, proven to its advantage. But it also made the UK into an outsider whose needs and interests became of lesser concern to the Brussels machine. That would remain the case even if Britain decided in the end that achieving a recognizable Brexit was not worth the candle, and that staying in the European Union after all was therefore its choice.
One of the oddities of the fractious arguments in the UK has been that so little attention has been paid to where the EU is headed, and what that trajectory would mean for the UK’s future prosperity and governance. The political realities strongly suggest that if the UK decided to remain in the EU after all there would be a significant price to pay. Those driving EU policies have shown no signs over the three and a half years of negotiating with the UK that they have become less committed to their protectionist, interventionist or federalist instincts. That is all the more telling for the fact that the question of where sovereignty should lie between the nations composing the EU and its Brussels-centered organs is an important issue not just for the UK but for other members too. More of the same has remained the stock answer to economic and political strains within the European Union. The debate in the UK, for its part, has been concentrated on whether the UK should stay or go, with scant reference to the economic and political difficulties faced at present by the EU and barely a mention of how the EU is likely to develop in the future.
Not Just Brexit
The UK Parliament has lost itself in often angry and unproductive debate about Brexit since the 2016 referendum. The hung Parliament that robbed Theresa May of the Conservative majority she inherited from her predecessor David Cameron made that inevitable. So too did the manner in which Parliamentary rule in the UK has evolved away from what had long been in effect a two-party system, the one that remains the familiar pattern in the United States to this day. The opposition parties currently represented in Parliament may for now be united in their efforts to force Prime Minister Johnson to ask for a further extension of negotiation with the European Union on a withdrawal deal, and to reject a no deal outcome, but their motives for doing so are varied and conflicting. The Scottish National Party’s (SNP) interest has been in reviving its pursuit of a further referendum on Independence. Labour has to recent date called regularly for national elections while keeping its Brexit policies imaginatively opaque. The party leadership has now taken to declaring elections undesirable in present conditions. The Liberal Democrats have consistently argued for Remain, most recently positing that, if elected to Government, their first act would be to ensure that the UK would remain a full member of the EU by revoking Article 50. None of these could unite in forming a lasting Government.
There seems to me to be two constitutional issues going beyond normal inter-party struggles worth reflecting upon. The first is how compatible referendums are with the British constitution. Referendums are intended to carry decisive weight but rarely do so over time. Second referendums in the European Union are generally designed to get voters to revisit propositions that they have rejected once in order to get them to give the “right” answer a second time. There are calls for a further referendum on Brexit in the UK under various pretexts. The precise questions to be put to the electorate have yet to be revealed by any of those arguing for them as a way to resolve the Brexit issue to the proposers’ satisfaction. The Labour Party is inclined to prefer such a referendum to be held before a General Election, apparently in the questionable hope that this might better clear their way of Brexit debris for success in an eventual national contest for No. 10 Downing Street. Referendums, which necessarily set simplified binary questions before the electorate, almost inevitably provoke more issues to be settled by future popular votes. General Elections are at least meant to produce governments able to take decisive action when needed, and for successor and similarly elected governments to revisit those decisions as needed or desired in their turn.
The second question is how best to address the questions arising from the pattern of relationships between the nations of the United Kingdom that has come about from previous decisions to devolve power in differing degrees from Westminster. The SNP have consistently signaled that they would not accept as final the September 2014 referendum’s rejection of Scotland’s independence from the UK. The SNP now argues that the fact that a majority of Scotland’s population voted to remain in the EU in the 2016 referendum indicates that a vote on Scotland becoming a member of the EU in its own and separate right should be held. The SNP leadership are at the same time cautious as to the question of when such a second referendum should be held.
The Brexit saga now often feels like the Uncle Remus story of Brer Rabbit and the Tar Baby; the more the UK struggles with the EU tar baby, the closer it is entangled. Stringing Brexit out by yet another negotiating period of undefined length and unclear purpose would not make the constitutional strains on the UK—or the EU for that matter—easier to bear. The UK needs a General Election sooner rather than later, and a new Speaker in Parliament to accept the essential mandate of his or her office, which is to oversee debate in the House impartially and without personal political agenda. Such a Speaker would also have a care to regard the accepted conventions of Parliament that have been and remain necessary to the effective operation of the constitution in past years. Parliament cannot be an effective government in its own right. It is essential that the authority of the Executive Branch should be restored, which cannot as things stand be achieved without an election. It is also essential that the 2016 referendum result should not be brushed aside, in extremis whether or not a definitive break with the EU is achieved. It is further desirable that at least a minimum of courtesy be restored to British politics.
When and if withdrawal from the European Union is achieved, there will be further and quite possibly contentious matters to be addressed as to the future relationship between the UK and Europe. Failure to do so with mutual respect would be needlessly tragic for both the United Kingdom and the European Union. My own convictions are that if the UK leaves, the chances of its later applying to return to the EU fold would be minimal; that if the UK remains, discontent will remain too, within both the UK and the EU; and that the governance of Britain will continue to evolve much as it has done throughout its history, without a freshly written constitution somehow covering the full field. Adjustments in particular areas might well prove to be another matter, depending on how and when an effective Government is restored to the United Kingdom.