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.
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 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.