Brexit puts the UK constitution under massive strain

The Brexit crisis have underlined a number of serious issues about our unwritten constitution and even the viability of the British state. Arguably our current constitutional arrangements don’t cater effectively for certain problems raised by Brexit, but for which some mechanism or point of ultimate reference is badly needed to prevent abuse of power.

One  such case is the role of the monarchy. We arguably do not have effective government at present. Mrs May on one day, 15 January, was defeated by 230 votes in Parliament on her painstakingly negotiated Withdrawal Agreement, but the very next day wins a motion of No Confidence and can remain in office. In effect we have a government in office but not in power. There is no mechanism for removing her, due to the Fixed Term Parliaments Act. The monarch is non-political and only acts on the advice of ministers. There is therefore no effective arbitrating entity.

In Parliament, her opponents are seeking to block her efforts to threaten and perhaps implement a No Deal Brexit with the support of the Speaker, by taking over some control from the government of the right to initiate and put through legislation. In so doing, the Speaker has been called biased by Tories and this raises the question of his ability to be non-political.

All this is taking place as a result of a referendum in 2016 that has no settled part in the constitution and was supposed to be advisory but is being treated as if it is binding by the government. The referendum took place in controversial circumstances and the result was narrow. It is in effect being disputed by the losing side, which undermines the legitimacy of a massive change like Brexit.

There have been disputes between central government and the devolved assemblies over the central government’s distribution of functions being repatriated from the EU. Yet there is no overarching set of principles to oversee the relationship between these two sets of bodies, thus fanning the flames of nationalist independence movements. This is particularly so with Scotland, where the SNP only narrowly lost a referendum on independence in 2014. Irish nationalists are also feeling justified in renewing calls for the unification of Ireland in the light of the threat of Brexit to the Good Friday Agreement. There is an increasingly strong case for a federal system in the UK, and probably to also include the disempowered regions of England. Many consider that the UK has been over-centralised for far too long.

We have also discussed in this blog what has been called “elective dictatorship”, the power of government over Parliament, which has enabled May, with now increasing difficulty, to push through her agenda. Parliament is now attempting to block it, but there’s no point of reference for this other than the concept of Parliamentary sovereignty, and Erskine May!

Then there’s other areas, like the unelected and oversized House of Lords, the FPTP electoral system and the lack of PR, which perpetuates two parties and squeezes out others, the alteration of constituency boundaries, the introduction of voter ID that discriminates against the poor, immigrants and the young, the right to vote as British citizens overseas who are impacted by Brexit know only too well, the lack of controls on business lobbying while limiting the role of the unions, the intention to repeal the Human Rights Act, recently referred to by a minister.

We badly need a law on referendums , to regulate their use and stop someone like Cameron doing what he did, a catastrophic error of judgement. The Fixed Terms Parliament Act is a bit of a mess on its own. The list goes on.

Yet the overwhelming point is that what we have now isn’t working. Whether the current administration will do anything about it remains to be seen, but if it all goes badly and we have a chaotic No Deal Brexit, perhaps in the eventual post-mortem and reckoning this will get addressed in some wholesale review.

You can read an extended version of this article here.

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