You are here

OPINION

Brexit has presented a very British constitutional crisis

Brexit referendum is the first time that the majority of the electorate has tried to impose its will on the elite, pitting 'popular sovereignty' against 'parliamentary sovereignty'

file771pn31f4bkaclq28qv.jpg
Anti-Brexit activists, and demonstrators opposing the British government's actions in relation to the handling of Brexit, protest near Downing Street in central London on Sept 10, 2019.

Cambridge, England

THE British do not normally have constitutional crises. One reason is that we do not have a constitution - at least not in the normal sense. There is no single text labelled "The United Kingdom Constitution". Instead, there is an accretion of statutes, conventions and customs - going back to Magna Carta of 1215 - which can be changed fairly easily. So we do not have the regular standoffs between executive and legislature which the United States seems to take in stride, even when (to British astonishment) it means closing down the federal government.

The present conflict between Prime Minister Boris Johnson and a heterogenous majority in Parliament is new to us, exciting, even alarming.

The simplest explanation for the crisis is that it is the unforeseen consequence of our most recent constitutional change: the Fixed-Term Parliaments Act, passed in 2011, which brought our system closer to the American one. Before that, a prime minister who lost control of the House of Commons could call a new general election, and so end the standoff. The Fixed-Term Parliament Act stopped that; a parliamentary term is now supposed to last for five years. To shorten it requires two-thirds of legislators to vote for a new election.

sentifi.com

Market voices on:

And so Mr Johnson's government is trapped: in office, but unable to carry out its policy. A general election would be the way of resolving this. The problem for the opposition is that Mr Johnson would probably win it. So he wants an election, and they do not.

But there are deeper explanations too. One of these - again on a constitutional level - is the conflict between representative democracy and direct democracy. On one hand, the will of Parliament; on the other, the will of the people, as expressed in the 2016 referendum on European Union membership. Most politicians (along with some members of the media, Europe-centred business interests and mainly metropolitan voters) wanted to stay. A majority of the electorate voted to leave.

String of referendums

We have had a string of referendums over the last 45 years, the most important being on whether to stay in the European Common Market in 1975 and on whether Scotland should remain part of the United Kingdom in 2014.

The introduction of referendums into a parliamentary system was always, in theory, a source of potential conflict. But until now, it had never become one - for the simple reason that every referendum vote until 2016 went the way that most of the political class wanted.

The Brexit referendum was the first time that the majority of the electorate tried to impose its will on the elite. The elite was and still is horrified.

The issue of "Europe", though always very important for a minority of people, was rarely at the forefront of politics. It was something that most voters found boring. So why has it suddenly become a seemingly existential question - the defining question of politics, overcoming old divisions of class, region and traditional party loyalty?

Such things happen from time to time. Looking back in history, we can see several occasions in which a crisis, sometimes appearing out of the blue, permanently changed the political landscape and decided who would run the country for decades.

The repeal of the Corn Laws was one such occasion. In 1846, what began as an emergency measure to deal with the great potato famine, by abolishing tariffs on imported grain, turned into an ideological battle. What sort of country was Britain - rural or urban? And who ran it - landed gentry or businessmen? It wrecked the ruling Tory Party, which felt betrayed by its own leaders. A new Liberal Party emerged and dominated politics for nearly 40 years.

Another shock was over the proposal for Irish Home Rule in 1885. What at first seemed a sensible way of calming unrest in Ireland and winning the support of Irish nationalists in Parliament spiralled into a religious conflict and a test of patriotic loyalty. It fragmented the Liberal Party, which was replaced by the Conservative Party as the main party of government. It still is.

What these crises had in common was an unexpected political conundrum that ignited a buildup of underlying political resentments and socio-economic tensions, which both professional politicians and ordinary people felt were threatening to their interests and their identities.

Today these episodes are almost entirely forgotten. I doubt that one person in a hundred could explain what they were about or why they seemed so important, any more than Americans could explain the bimetallism debate of the 1890s.

Waving opposing banners

Similarly, not many more people today could explain the technicalities of European Union trade policy, the technological implications of the Irish backstop, or the legal complexities of parliamentary sovereignty. That does not stop hundreds waving opposing banners outside Parliament.

The original issue - membership of the European Union trading bloc and its accompanying political institutions - has slipped into the background. "Europe" has become an emotive symbol of deeper loyalties, just like the earlier crises. The 2016 referendum seemed a clever way of solving a political problem; no one expected it to open Pandora's box.

The two sides in the debate are coming to loathe each other. For the "Leave" side (which is my side), our national system of democracy is at stake: For the first time since Britain became a truly democratic country, the political and cultural establishment is refusing under a variety of pretexts to obey a legal popular vote. On the "Remain" side, it seems to have become less about loving the European Union than detesting those who are against it, seen as deplorables who must not be allowed to win.

So "parliamentary sovereignty" has been pitted against "popular sovereignty", in this case championed by the Johnson government. It is not yet clear how our constitution will cope with this fight between two conceptions of democracy. Who will have the final say - the people or the establishment?

Parties are being torn apart, sometimes in dramatic fashion. The Conservative Party has ruthlessly ejected its rebel legislators; a few others, including on Thursday the prime minister's "Remainer" brother, Jo Johnson, are simply resigning. The Labour Party's divisions are less prominently on display at the moment, but it remains deeply split over whether it is willing to support a general election to break the deadlock. It is not yet clear how these political alignments will re-form.

This divide between establishment and country might sound familiar to an American readership. Indeed, if I wished to be provocative, I might suggest that it is a sign of the Americanisation of British political culture.

As with the Corn Laws and Irish Home Rule, the political consequences of Brexit may well be profound. People feel so strongly now that they are willing not just to rock the political boat but to capsize it completely. Once they do, it is difficult to say where things could end up. NYTIMES

  • The writer is a professor at the University of Cambridge and the author of The English and Their History