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Strained to the breaking point – Can Britain’s uncodified constitution survive Brexit?

James Stevens| Europe and Eurasia Fellow

The United Kingdom is embroiled in an existential crisis. The ruling Conservative Party has had three Prime Ministers since 2015. Its current leader - Boris Johnson – lacks a parliamentary majority and was defeated on the floor of Parliament on his first vote. His critics have accused him of subverting democracy and violating the constitution – with many calling for him to resign or even be imprisoned.

The source of this political chaos is an age-old question for the UK – is she apart from or a part of Europe?

The 2016 referendum on EU membership was meant to be an open and shut affair – especially given the almost universal pro-EU stance of the political and business establishment. However, this attitude failed to appreciate how divisive EU membership was to the common citizen.

Despite the victory for the ‘Leave’ vote in the referendum, many MPs across the political divide remained deeply sceptical of leaving the EU. In an attempt to quell internal divisions within her Party and gain popular endorsement for her Brexit approach, then Prime Minister Theresa May went to the polls in 2017. The result was disastrous - costing her 13 seats and ushering in a hung Parliament.

In the aftermath of the election, the Brexit debate stagnated as nobody truly controlled Parliament. May attempted to pass a negotiated withdrawal deal which she had developed with the EU, but it was rejected in three separate votes. Faced with mounting internal pressure from her Party and without a clear path forward, she was forced to resign.

The following leadership contest saw Boris Johnson emerge as Prime Minister of the UK on a platform to “get Brexit done” even if this meant a no-deal Brexit. In pursuit of this goal he decided that one of his first moves would be to prorogue (temporarily discontinue) Parliament for five weeks – an unprecedented length of time.

Johnson claimed that this was solely done to provide him with time to establish a new domestic agenda. His opponents disagreed - arguing that he was acting unconstitutionally and was attempting to prevent Parliament from passing legislation to prevent a no-deal Brexit. They opted to challenge the decision and in September 2019, the UK Supreme Court found the prorogation unlawful and declared it immediately void.

This entire series of events arose out of the fact that, prior to the Supreme Court ruling, there were no constitutional rules regulating prorogation – instead, the Prime Minister was expected to exercise restraint.

This plays into what Professor Meg Russell at University College London describes as the “British sentiments of decency and fair play” within its constitution which assume that “people who reach high office will respect conventions, precedents and unwritten rules.”

Unlike many other nations, the UK does not possess a single, codified constitution.

Instead, the nation is guided by a multitude of Acts of Parliament and court judgments made since the signing of the Bill of Rights in 1689. Each of these has upheld three core principles – the primacy of Parliamentary sovereignty, executive powers enshrined within Royal Prerogative and the retention of a set of conventions that outline the scope of executive and legislative powers.

The strength of this constitutional approach is its inherent flexibility. This can be seen during WWII when both major parties agreed to delay a general election until after the cessation of hostilities – despite the existence of a convention to hold elections every 5 years. However, the largest weakness of this approach is that it heavily depends on political actors operating within a set of informal, unwritten rules.

Johnson has deduced that the electorate is deeply fatigued by Brexit and simply want the country to move forward. A recent survey found that two-thirds of Britons would be in favour of doing “whatever is necessary” to achieve Britain either remaining or leaving the EU - even if it meant breaking constitutional conventions.

This popular sentiment empowered the prime minister to adopt a ‘success at any cost’ approach. Given his lack of a Parliamentary majority, no broad agreement on a withdrawal deal and with the opposition refusing to allow an early general election – instead of accepting legislation preventing a no-deal Brexit which he fundamentally disagreed with, he opted to pull as hard as possible on whatever levers he had left. Prorogation just happened to be that lever.

The use of prorogation in such a brazenly political manner is deeply concerning. It breaks the informal agreement which sits at the heart of Britain’s constitutional framework regarding an acceptance of unwritten limits to executive power. It risks igniting a procedural arms race between the government and the opposition, with each abusing constitutional grey zones to achieve marginal political advantages over each other.

However, this worst-case scenario did not eventuate. The intervention of the Supreme Court and the acceptance of an early election by the opposition buttressed the constitutional framework. The upcoming election on Thursday 12 December is the constitutionally correct instrument to solve political impasses. It provides an opportunity for the political parties to outline their position on Brexit’s next steps and for the British public to endorse one of these views. After the election, one party will have had its plan endorsed – granting them the power to move the country forward.

Upon reflecting upon the Brexit process, some commentators have claimed that a codified constitution is the missing piece of the puzzle in British politics, the silver bullet which would prevent the abuse of power by an overzealous Prime Minister. However, such calls should be viewed with a high degree of scepticism. While they are often expressed in terms of ‘consolidating existing constitutional arrangements’ – this is often a false front, hiding a desire for dramatic constitutional reform.

James Stevens is the Europe and Eurasia Fellow for Young Australians in International Affairs. The views expressed here are solely those of the author.


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