Has Brexit destroyed the constitution?
Published: 2 April 2019
Author: Michael Keating
The Brexit deadlock has not only aired crucial differences in the way the British regard the European project. It has also exposed serious deficiencies in the United Kingdom’s uncodified constitution. The failure to resolve the distinct constitutional requirements of Northern Ireland and Northern Ireland are one aspect, much discussed on this site, but there is also a failure of institutions at the centre.
Historically, the British constitution has been much admired on the continent of Europe. The principle of parliamentary sovereignty defined the source of power, while dangers of over-reach were limited by self-restraint and moderation on the part of the governing class. A first-past-the-post electoral system provided strong and stable governments, while sustaining a viable opposition ready to take over whenever the electorate decided. Two large parties of the centre-left and centre-right alternated in power, while smaller challengers were present to keep them in order. The self-flattering image within the country was of a steady historical process towards liberty and democracy, without the turbulence of revolution.
Reformers have long challenged this complacent vision. Wide powers belong to the monarch, exercised in practice by ministers, including the power to conclude treaties and make war. The electoral system does not reflect voters’ choices. Power is excessively centralized. Ministers are not properly accountable and Parliament is subordinate to the executive. The second chamber is a mixture of appointed, hereditary and clerical members, with no elected element, unless we count the bizarre practice of the hereditary peers ‘electing’ which of them will sit in the House of Lords. Still, it was argued, the system does provide stable government.
Brexit has upended this last defence of the old order. The Brexit process has been chaotic, with the Government struggling to retain control. Constitutional rules and procedures are being made up as we go along. New elements are being added to the constitution without any coherence with existing provisions.
The first innovation was the referendum, a device used only twice before at UK level. Brexiters then declared that the result, a 52 per cent majority to leave, was a mandate from the British people. What had been promoted by constitutional reformers as a democratizing measure was actually used to try and halt deliberation and empower the executive. It was even argued that the referendum outcome was directly binding on ministers, without any need to pass through Parliament - a revolutionary constitutional doctrine. Indeed, if the Government had had its way, Parliament would have been almost totally excluded from the process, reduced to ratifying the consequential legislation. It was the Supreme Court that decided that parliamentary approval was needed to trigger Article 50, giving notice of withdrawal. Parliament itself insisted that a ‘meaningful vote’ would be required on the withdrawal deal and the declaration of the future relationship. It also insisted on getting the Government’s legal advice and impact studies into the open.
Yet Parliament is not equipped to take over the negotiations or steer Brexit to a conclusion one way or another. This is not just the obvious point that it is not the executive. The British Parliament is a forum for adversarial politics, with the power to stop things but not to make things happen. Its committees, while they have improved in recent years, are not deliberative forums or places to broker consensus. The cumbersome idea of ‘indicative votes’ had to be invented just to allow MPs to express their opinions. Were it not for an unusually strong Speaker, the Government could have brought back the same question again and again until MPs were worn down and gave the right answer.
Reliant on the assumption that majority governments will always get their way, the UK lacks a constitutional arbiter in case of deadlock. The monarchy, rightly, has been taken out of politics, but without replacing it with a head of state as in other countries, where a president (or even monarch) has a role in keeping order. In 2010 a process for dealing with a hung Parliament and brokering a coalition had to be invented. A quirk of parliamentary arithmetic (and the electoral system) has meant that the Democratic Unionist Party speaks for Northern Ireland at Westminster, despite the fact that it does not represent Northern Irish opinion, which voted 56 per cent to remain. Backbench MPs have to try and broker Brexit proposals and wrest control of the order paper from a reluctant Government. The deadlock with the Scottish Parliament over repatriated powers was resolved by Westminster simply over-ruling Scottish objections.
A constitutional crisis is the most favourable moment for constitutional reform, but the pace of Brexit hardly allows for that just now. Lessons, however, may be drawn for the future. It may be that the referendum is now part of our uncodified constitution. If so, it will be necessary to think about rules for referendums and the role of Parliament. At least, if the people have been deemed to have spoken, we should know what they have said. In other words, there should be a specific proposal on the table, as with the Scottish independence referendum. There should also be a clearer role for Parliament to convert whatever is decided into legislation that works and that can gain broad support. Referendum results do not implement themselves. For that, Parliament itself could be transformed into a more effective chamber and one more representative of the diversity of opinion in the country.
Brexit did not cause the UK constitution to fail. It merely exposed the weaknesses of an outdated way of governing ourselves.
Michael Keating is Professor of Politics at the University of Aberdeen and Director of the Centre on Constitutional Change.
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