20 BriefingThe British constitution The EconomistJune 1st 2019
2 Mr Blair’s government also used Europe
to provide constitutional protections.
Should Britain leave the eu, the Charter of
Fundamental Rights, which allows judges
to poke their noses into any legislation that
touches eucompetencies, will no longer
apply. Thus Britain is shifting back from a
protected constitution, in which rights are
guaranteed by a judiciary, to an unprotect-
ed one where they are at the mercy of Par-
liament, argues Vernon Bogdanor, one of
Britain’s foremost commentators on the
constitution. But the fact that post-Brexit
Britons will enjoy fewer rights in law does
not mean that judges will necessarily ac-
quiesce in a shrunken role. Some may seek
to step into the breach.
The country may thus see a new conflict
over where sovereignty lies—the constitu-
tional question which, above all others,
Brexit has dragged into the light. The splen-
didly bearded Victorians who sought to
clarify the constitution held that in the
modern world sovereignty, once settled in
the monarch, rested with the crown in Par-
liament. Parliament could thus do what it
wanted, including overturning what previ-
ous parliaments had thought good. This vi-
sion offered little scope for referendums.
The only national referendum held in
the 20th century was called by Harold Wil-
son two years after Britain joined the Euro-
pean Economic Community, the predeces-
sor to the eu. Because some prominent
Labour and Tory politicians opposed this,
the 1974 Labour manifestos promised to
first renegotiate membership and then put
it to a popular vote. Two-thirds of the peo-
ple voted to stay. Mr Cameron presumably
hoped that his Brexit referendum would be
as similar in result as it was in form.
Instead, Parliament ended up with an
instruction most of its members disagreed
with, but about which they seemed unable
to do anything. This is not a problem with
referendums per se. Other countries use
them, sometimes quite liberally, without
collapsing into political disorder. In Ire-
land, for example, the constitution, which
is well codified, says that referendums are
required if the constitution is to be
changed. Voters choose between the status
quo or a fully cooked proposal. But the Brit-
ish constitution, uncodified and long ref-
erendum-averse, makes no such clarifying
provisions.
The decision to resort to a referendum
that produced a result capable of many in-
terpretations cannot take the whole blame
for the current chaos. After all, both the To-
ries and Labour vowed to honour the peo-
ple’s revealed will in the general election of
2017 and between them they took 82% of
the vote. Some of the subsequent mess
rests on the back of the Fixed-term Parlia-
ments Act of 2011. Before this a prime min-
ister whose flagship legislation was voted
down—just once, never mind repeatedly—would have been expected to call an elec-
tion. If he or she had not, a vote of confi-
dence would have followed which a minor-
ity government would have been near
certain to lose. The 2011 act replaced this
convention with statute which says that a
lost confidence vote triggers a two-week
period during which any mpcan attempt to
win the backing of the Commons and form
a government to avoid an election. When
asked what this would actually look like,
the clerk of the House of Commons re-
sponds: “I really don’t know—I don’t think
anybody knows.”
Britain finds itself in a halfway house
which may be the worst of both worlds.
Partial codification has removed a mixture
of predictability and flexibility while pro-
viding neither certainty nor clarity in rec-
ompense. A readiness to change the consti-
tution has provided some statutory andlegal checks and balances to rein in bad ac-
tors. Yet these new rules are weak and may
encourage perverse outcomes. They have
probably also lessened the expectation of
good behaviour and restraint.
Such norms matter. Even countries
with strong, written constitutions and
clear separations of power are at risk with-
out unwritten conventions on how that
power is wielded, argue Steven Levitsky
and Daniel Ziblatt in “How Democracies
Die”. In 1951 a jeremiad offered by Lord Rad-
cliffe, a former Law Lord, warned of Britons
“losing their character, and being left with
their institutions; a result disastrous in-
deed.” It has come to pass with the institu-
tions in disarray.
The situation is made worse by changes
within the parties. The Brexit referendum
weakened the parties; the parties, for their
part, have weakened Parliament. Their
memberships, not their mps, get the finalsay on who leads them and thus who can
become prime minister. As a result, British
politics resembles a selectocracy. Rather
than ending up with a leader designed to
appeal to a wide range of voters, activists
pick candidates who satisfy their own
niche concerns, argue Frances Rosenbluth
and Ian Shapiro in “Responsible Parties:
Saving Democracy from Itself”. Tory mps
can, under some circumstances, depose
their leader; Labour ones cannot be sure of
the same power. When the parliamentary
Labour Party voted by 172 to 40 to remove
Jeremy Corbyn in 2016, the party’s mem-
bers simply re-elected him to his post.
The Tory selectocrats who will choose
Britain’s next prime minister would, poll-
ing suggests, prefer a no-deal Brexit over
staying in the euby three to one; the elec-
torate as a whole swings three to two the
other way. The prime minister will thus
have to either disappoint those who have
given them their job, or those in whose
name they will rule. The dodginess of the
prime minister’s claim to legitimacy will
be seen by many in Parliament as justifying
a selective approach to precedent and con-
vention in order to thwart the prime minis-
ter’s intentions.
John Bercow, the Speaker of the House
of Commons and thus arbiter of its proce-
dure, has shown an elastic attitude to what
had been seen as rigid precedent. He is said
to have reconsidered his previous inten-
tion to resign this summer. “The idea that
Parliament is going to be evacuated from
the centre stage of debate on Brexit”, he said
on May 28th, “is unimaginable.”
The possibility of a crisis in the House,
like the possibility of an outcome that ig-
nores the wishes of Scots so blatantly as to
drive them to independence, underlines
what David Pannick, a lawyer in the Lords,
sees as the central irony of Brexit: it at once
makes constitutional reform more neces-
sary and less likely. It is not just that “the
exam paper is simply too big,” as Robert
Hazell, a professor of government at Uni-
versity College London, puts it. There are
fundamental issues of trust. Though La-
bour and the Liberal Democrats have both
pledged to hold a constitutional conven-
tion if they come to power, the chances of
their creating the space for an honest de-
bate of who has what powers, codifying
their results and getting them agreed is
very small—and any attempts to do so
would be widely interpreted as nefarious.
The relationship between the United
Kingdom’s constituent countries needs to
be settled. So does the position of Britain’s
judges and the further role, if any, of refer-
endums. Britons must decide whether they
are comfortable with a largely uncon-
strained executive in the gift of all-power-
ful party members. But without a stable
constitution, in what forum can this all
take place? 7