Brexit, Speaker John Bercow and the UK constitution | Financial Times >>>
First, some definitions. A “constitution” is not just a document, codified or otherwise. Even nations with “written constitutions” do not have all their constitutional arrangements recorded in one document. That of the US, for example, contains no explicit mention of judicial review, the key check of the judiciary on executive or legislative over-reach. A document may record and even prescribe constitutional arrangements, but there will always be more to a constitution in practice.
Instead, it is the descriptive answer to simple questions. How is a particular state constituted? How are the relationships between the elements of the state regulated? What happens when there is conflict between the elements of the state, or between the state and the individual? What are the mechanisms for resolving tensions so that they do not become contradictions?
So a constitutional crisis occurs when there is a contradiction between elements of the state, or between the state and the citizen, which is not capable of easy resolution; where there is a fundamental conflict the outcome of which cannot be predicted or managed.
There have been such occasions in English history, in the 1640s and 1680s, and the UK came close to one in respect of both the powers of the House of Lords and Irish Home Rule before the first world war.
Brexit had the makings of an immense constitutional crisis, even a constitutional revolution. After the referendum of June 2016, the government did two things that could have created one.
The first step was a matter of principle. The government (and, to be fair, the Labour opposition) interpreted the referendum result as a fixed mandate that could not be gainsaid by parliament. This was a flat rejection of the doctrine of parliamentary supremacy. The “will of the people” had to prevail.
The second step was a matter of practice. The government sought to exclude parliament (and the devolved administrations) from any involvement either in the Brexit negotiations or respect of Brexit policy.
Parliament would have no role in formulating or approving the parameters of the deal. Supposed analyses of the impact of Brexit would not be published. Ministers sought to legislate at will with wide statutory discretions. Whitehall was seeking to take control, but from Westminster and not Brussels.
In terms of principle and practice, therefore, parliament faced the gravest possible challenge to its authority. But the executive failed. The wide statutory discretions were narrowed. A meaningful vote provision was inserted. The Supreme Court held that parliament and not the executive must authorise the Article 50 notification. Mr Bercow ruled that government business motions could be amended. Publication of economic analysis and legal advice from attorney-general Geoffrey Cox to the cabinet was forced on the government by MPs using the ancient means of a “humble address”. The third “meaningful vote” was ruled out of order this week — another decision by Mr Bercow — because of an even older precedent, dating from 1604.
None of these checks were inevitable, and each development had to be fought for. To an extent, the government undermined itself with a general election where it lost its overall majority. And it has often shown itself to be incompetent over procedure. It seems the Speaker’s ruling on the meaningful vote took the government by surprise. The government’s lack of Brexit contingency planning is as evident in constitutional matters as it is in policymaking.
Things could have gone differently (and may still do so), but so far each tension between the elements of the UK state occasioned by Brexit has been regulated and resolved. The government has not got away with its constitutional revolution. The courts and then parliament have asserted themselves.
In a curious way, Brexit has resulted in the country’s supreme parliament “taking back control” — though not in the manner intended by Brexit campaigners. Mr Buckland confuses the government not getting its way with a constitutional crisis. But his complaint is itself the sound of a working constitution. Had the executive succeeded in its intended power grab, that would have been a constitutional crisis. But, so far, that has been avoided.