For the first time since 1908, Britain is in a state of constitutional crisis, and I foresee colossal consequences if it is not resolved soon.
The British Constitution is a confusing thing. While most modern political systems are well-defined and fully codified, laid out clearly in a single document, ours is not. Instead it is derived from explicitly passed parliamentary statutes, long-held tradition, and an interesting principle called “Common Law,” whereby legislation exists except it doesn’t exist — it is in the ether: under the principle of Common Law, any tradition or convention that is well-known, old, and generally unopposed and accepted by the public can be enforced and policed, as though it was legislation, except it isn’t. Most of our human rights were Common Laws before they were codified in 2000. It falls to the courts to interpret all of this and rule, obviously.
As a result of Britain’s long reliance on Common Law, large parts — most, actually — of the Constitution are unwritten completely, or very vaguely defined. This includes the precise powers of the government to act without parliamentary consent, and especially the cabinet offices, including the prime minister. What cabinets can and cannot do, and what prime ministers can and cannot do, has changed over time; think of the way Margaret Thatcher dominated the government, or Tony Blair simply ignored proper process completely and took important decisions on the sofa, and compare to the more tame nature of early Twentieth Century executives; David Cameron ruled for most of his career in a triumvirate with Nick Clegg and George Osborne, and everyone else faded away.
The nice thing about all of these grey areas is that they are flexible, and, when the system is working properly, they allow for adaptability. There has never been a revolution in the modern UK, which is impressive when you compare to countries like Germany, or France (now on its fifth republic by my count). The reason for this, quite possibly, is that so little of British law is actually codified that powers simply flowed from the sovereign to the prime minister, peacefully, during the transition from monarchy to democracy. William of Orange, of course, lost lawmaking supremacy, but still retained an enormous amount of influence and — though his authority was not absolute — still went around on the day-to-day business of ruling, waging war and negotiating treaties. He was still the head of state in practice as well as theory. This changed. At what point do you stop remembering famous monarchs and start remembering famous prime ministers? That’s right: Victoria. It was during the late phases of her reign that she had to concede that she and her successors would never again directly appoint ministers, and never again dissolve parliaments for any reason other than tradition, or even really shape government policy in a serious way at all; and surprisingly little was written down in law. Powers flowed into government, and more recently they have made their way upwards inside government to the top offices.
But the system is clearly not working properly. The prime minister wants to flex her muscles and use prerogative powers to begin exiting the European Union; she likely argued that the mandate she received on the 24th was sufficient to legitimise the action, and wanted to push parliament into background, believing it would be superfluous and only impede democracy. The High Court has disagreed. I’m suspicious of the judges’ ties to Europe, but I’ll give them the benefit of the doubt and assume they were honest when they said they only looked at the legal aspects. Their thought process I’m sure was that this kind of thing has not been done — ever — and they want to preserve that other foundation of the British Constitution: parliamentary sovereignty.
You should all know this one, for the amount it’s been trumpeted in the last four and a half months. Parliament is sovereign. Ultimate power lies with parliament, always. It has been this way since the Glorious Revolution. If a parliament decides something, it has to happen. In case you were wondering, this is why entrenching laws (making them mega hard to undo, with supermajorities and whatnot) is not possible here: the one thing a parliament cannot do is bound another parliament to its actions. The most important principle in this country is that a Commons dominated by Labour can undo all of the legislation a previous Conservative Commons passed, so don’t you complain!
I sympathise with the High Court on that level, but allowing them the chance to actually stop Brexit, after a public referendum . . . do you really want parliament to be sovereign to the point it can dictate to the majority? This is not a vote on scrutiny, or on terms, but on actually stopping it.
Either Theresa May will shut up now, and abide, or she will not. If she does, one of two things will happen: either Article 50 will pass through parliament, or it will not. If it does we can all go home happy (at least, those of us who respect either definition of democracy), and indeed it might: 421 of 574 constituencies in England and Wales voted Leave, when counted using First Past the Post, and those MPs will not be received kindly if they stop it; also, most of them, I hope, even if they are Remainers, are also democrats, and people like Ken Clarke are a loud minority. If it does not, however, what happens then?
What happens when the government has an electoral mandate to do something, but parliament is using its sovereign authority to stop them, and the courts are siding with parliament? Seriously, what happens then?
Alternatively, May could challenge the decision. The Judiciary in the UK is not binding, so in theory she could try it anyway, and file a prerogative order to trigger Article 50. This would put the onus on parliament to actively act to stop her, legislating for definite to curb her prerogative powers. It would be a slightly different route and the topic of debate would be slightly different, but the effect would be the same. Only, would they do it? Perhaps they wouldn’t.
For my part, I predict that Brexit has political history on its side — at least from a constitutional point of view, as the electorate always wins — and carries too much momentum to now be stopped. Somehow, it will happen. But make no mistake: this is a constitutional crisis, and if it cannot be solved it is going to do even more damage to the establishment, and that is not always a good thing. It might even destroy the government, or it might even destroy parliament.