The Brexit crisis is now putting the UK unwritten constitution under severe pressure, highlighting various issues that on their own might be problematic but when put together bring into question the viability of the British state unless reformed. It should be asked whether the stranglehold of the Conservative Party grip over British politics will allow that, or whether the crisis will eventually lead to some more root-and-branch change, either by disintegration or by a preservational reform.
A number of serious issues have been raised by the crisis, for which our current constitutional arrangements don’t cater, but which badly need some mechanism or point of ultimate reference to prevent abuse of power.
Brexit was instigated by a referendum in 2016, and the result has thrown politics into chaos. It has therefore been a de-stabilising force. Yet referendums have no settled role in the political system. This one was a simple “yes/no” to staying in the EU. It contained no agreed, negotiated package of changes at the end of a policy-making process that required popular approval in the face of a divided Parliament. That situation did not exist. What we had was a divided Conservative Party and it was Cameron’s ill-judged attempt to quell such division by a vote he thought he could easily win. Yet the vote was caught up in a whole anti-Westminster movement that reflected much more other, more deep rooted issues. Moreover, there are no rules about when and how referendums should be conducted, whether there should be a supermajority rather than the simple majority used in 2016, what their frequency should be, what issues can be put, or whether the result should be binding or advisory. The 2016 referendum was advisory but has been treated as if it was binding by the winning side and not the losing one. Moreover too, the result is in effect disputed, since there is evidence of malpractice and the majority a narrow one. This problem on its own is an issue for the constitution which does not cater for referendums.
Minority government and the Fixed Term Parliaments Act
The current government is trying to push through a massive change, Brexit, while not having a majority except by alliance with another, small party, the DUP. It retains the confidence of the House of Commons but failed to get agreement to its Withdrawal Agreement with the EU by 2030 votes. Normally a government losing such a vital vote would have resigned, but this one is able to stay in office because the governing partnership can unite against their feared opponents led by Jeremy Corbyn. The Fixed Term Parliaments Act 2011 enables a government to stay in office even when it lacks power and the country is faced with the immediate event of a No Deal Brexit. There is no mechanism to remove this government in this situation, which is effectivley paralysing decision-making.
On the other hand, however, the FTPA has proved its worth in the Brexit crisis in relation to preventing abuse of power by the PM. Johnson attempted to bulldoze Parliament into a general election and thus force through a No Deal Brexit during the campaign, but the FTPA ensured he could not do that since he could not gain a two-thirds majority.
The monarchy is above politics and acts on the advice of ministers. No modern monarch has intervened in political controversy since Queen Anne, and certainly not since Queen Victoria. There is no way at present that the monarch would step into this crisis unless May first resigned, and then it would be to follow precedent. One should ask whether the arrangements for the role of the Head of State are serving the UK in this situation.
The power of Parliament and the role of the Speaker
The Brexit controversy has brought Parliament into conflict with the executive, as has been described in this blog. Some describe the relationship between Parliament and the executive as an “elective dictatorship”, a 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 through a backbench cross-party alliance. The Speaker has allowed motions that have enabled this alliance to put several checks in place to try to prevent a No Deal Brexit. There has been some considerable controversy over this, but the Speaker is an activist in support of the rights of Parliament over the executive. However, there’s no point of reference for this other than the concept of Parliamentary sovereignty, and Erskine May. Moreover his opponents amongt the Tories say he is biased and the impression has grown that he is a Remainer. It is considered that the Speaker should be non-partisan and that if this ceases to be the case in future Speakers might be chosen not for their ability to serve the House but to serve the government, as used to be the case until the 17th century.
Problems with devolution and the rise of Celtic nationalism
Above all, the crisis is exposing the weaknesses of the devolution settlement, whereby Scotland, Wales and Northern Ireland have their own devolved assemblies. There are a series of laws outlining the respects rights and obligations central government and these bodies, but there is no over-arching written set of enforceable principles. This is even worse for English local government which is almost totally subservient to Westminster and Whitehall. The context is a rise of nationalist movements demanding independence, most powerfully in Scotland which narrowly failed to win a referendum in 2014. For the sake of the integrity of the UK, the devolution settlement needs to be made to work. However, it is regularly a source of dispute.
When the UK government attempted to legislate for the repatriation of powers upon Brexit, certain powers were to be passed on to the Assemblies but others retained by central government, controversially, as with agriculture, fisheries, and the environment since they were deemed necessary to protect the integrity of the internal market. There was a long-running dispute, resulting in legal action in the case of Scotland which they lost. However, the clash illustrates a lack of an agreed division of powers with an arbitration machinery.
In the case of Northern Ireland, the issue of a potential hard border between north and south and the threat of this to the Good Friday peace agreement has dogged negotiations with the EU. Brexit poses a risk not only to trade between the rest of the UK and these countries but also is provoking the issue of whether the North should reunite with the South.
Thus the flames of independence movements are being fanned.
There are therefore powerful arguments in favour of a federal system, ideally also including regions of England.
The EU and Britain
It is important to realise that the EU has acted as a uniting force and a guarantor of institutional as well as practical arrangements, and that the removal of the EU is also a constitutional change. Times have moved on since the UK joined in 1973 and to remove the EU from the UK’s constitutional arrangements poses big questions as to what should be there in its place. Otherwise there is a big risk of further and ongoing disputes, alongside the Leave/Remain divide iself.
It is not as though Brexit-related issues have been a problem constitutionally. There are a number of other factors to be remembered, such as
- The FPTP electoral system and the lack of PR, which perpetuates two parties and squeezes out others
- The alteration of constituency boundaries and the introduction of voter ID
- The right to vote, as British citizens overseas for more than 15 years who have no say in Brexit but are impacted by it know only too well
- The lack of controls on lobbying while limiting the role of the unions
- The intention to repeal the Human Rights Act, recently referred to by a minister. A comprehensive body of law would be needed in this area
- The need for reform of the House of Lords, which is currently an appointed upper House of Parliament
The overwhelming point should be that what we have for our constitutional arrangements now plainly isn’t working. Whether the current governing party or the opposition will do anything about it remains to be seen. However if we have a complete upheaval over Brexit, perhaps then in the eventual post-mortem and reckoning this will get addressed in some wholesale review.
The Prorogation crisis
PM Johnson’s announced that the Queen (ie. he) would prorogue Parliament for 5 weeks in early September 2019, ostensibly to prepare for a new session in mid-October but in reality to shut down debate and prevent his opponents from taking action to stop a No Deal Brexit. This action brought the Brexit crisis to a head in a full constitutional crisis. From the point of view of the constitution, it has opened up to public scrutiny the serious weaknesses in our constitution as discussed in this blog.
The crisis has highlighted such issues as
- Control over the start and ending of sessions: this is subject to the royal prerogative. Thus in normal times, the Queen, on the advice of the PM, prorogues Parliament and a new session follows a few days later, starting with the royal State Opening of Parliament and the Queen’s speech outlining the government’s legislative programme for the session. Johnson was able to request that Parliament be prorogued for an extended period based on the royal prerogative, which might be legal but is widely considered to be unconstitutional. It is now considered that the power to prorogue be removed from the royal prerogative and given to Parliament in line with its existing power to adjourn and dissolve.
- The lack of a Head of State as arbitrator in a political crisis when politicians cannot form a government and parties are in dispute. The Queen by convention is “above politics”. In the Brexit crisis, when Parliament has been deadlocked, she has followed the advice of her PM even though her role really required her to intervene, conduct talks with key actors, removing the PM if appropriate and help find a solution, if necessary by calling an election.
- The potential for the prime minister to recommend to the Queen not to give assent to a bill, along with other uncertain powers to block a bill from going to the Queen for the royal consent. These have been raised and legislation is needed to clarify the proper procedure.
- The competing claims to democracy of the referendum, which voted in 2016 to leave the EU but did not vote on the specific policy to be followed, and that of representative democracy through an elected Parliament, as when in 2017 a General Election took place, no party had a majority and the PM unsuccessfully struggled to achieve consensus behind a polict to leave the EU.
- The lack of a Constitutional Court: In the crisis the courts have been asked to rule on constitutional matters which previously was left to Parliament. Thus the Supreme Court in the Miller Case (2017) ruled that, under the overriding principle of the Sovereignty of Parliament, the government must secure the approval of Parliament to activate Artile 50 to leave the EU. Yet, as the crisis has worn on, more and more there are constitutional points being made that need some arbitrating body to resolve
- The Government not Parliament controls the business of the House: Other countries have their Parliamentary committees to decide business but in the UK the government, under Standing Orders, controls the business of the House. Thus, when a cross-party backbench alliance wanted to pass laws to constrain the seemingly arbitrary actions of the PM, they had great difficulty in taking over business and legislating. Many opponents argued that this was a dangerous precedent and undermining the capacity for strong government but defenders said that unless this was done, the PM and government would take actions that a majority of the House did not agree with.
- Increase the scope for MPs to initiate legislation: as the crisis has shown, the scope for MPs to introduce bills is very limited, usually to Fridays when backbench bills are discussed, usually after a ballot of MPs to decide the small number for which there will be time. Often it is hard to get such bills passed unless the government helps in some way. A small group of Tory MPs have often obstructed such bills, Chope being the most notorious. It is being suggested that this scope be widened.
- The concentration of power in the PM and governing majority is excessive when a rogue government takes actions that threaten vital interests or wide sections of the community, and checks and balances are inadequate. Britain still retains a system that has evolved from a monarch-controlled government and not institutionalised a system to prevent abuse of power
- The relative weakness of Parliament: for a long time Parliament has been relatively subservient to the elected government, so much so that the latter has been referred to as an “elective dictatorship” (Hailsham). The tendency is for the majority party to support its government. One recent example is the use of the power of Contempt of Parliament against Dominic Cummings for his refusal to attend a Select Committee hearing about the abuses of the Vote Leave campaign. While a contempt motion was passed, it has no teeth as it lacked government support in the use of sanctions. Yet Cummings was later appointed chief advisor at No. 10 and then given a Parliament security pass.
As one commentator wrote written, “This incident exposes yet another gap in our uncodified constitution. The constitution is based on parliamentary sovereignty but Parliament cannot even control when it sits. We do not have a working head of state to intervene and arbitrate when there is a government crisis, as is happening currently in Italy. Government, lacking the support of Parliament, claims that its mandate stems from an advisory referendum three years ago, a device unknown to the constitution. As usual, we are making up the rules of the game as we go along.”
The Supreme Court ruling
Subsequently, the Supreme Court on 24 September 2019 ruled Johnson’s prorogation unlawful, null and void, and Parliament resumed its work.
As part of the power struggle, Johnson had attempted to suspend Parliament (prorogation) so as to reduce the time for debate and force Parliament into agreeing his terms for Brexit that he was negotiating with the EU, for fear of the alternative of a No Deal that he threatened. The prorogation (10-24 September 2019) was challenged in the courts by, among others, Gina Miller and Joanna Cherry. The Supreme Court in a historic verdict ruled the prorgation advice by the PM to the Queen to be justiciable by the Court and that the prorogation was unlawful, ruling that the government’s action was a breach of the constitutional conventions of Parliamentary Sovereignty and democratic accountability, the right to scrutinise the actions of the executive and hold it to account. In so doing, as in the earlier Miller case (2017), the Supreme Court has asserted a role in interpreting the British Constitution that has previously been lacking and shifted the unwritten constitution into new territory where the courts arbitrate in constitutional disputes.
A written constitution?
A lot of the concern relates to the abuse of power by the executive, especially in relation to the monarchy and to the reliance on the willingness of politicians in power to respect convention. When they do not do so, as Johnson has shown, they imperil the constitution and may well require firstly additional legislation and probably also a written constitution.