How Brexit Blew Up Britain’s Constitution

https://www.bloomberg.com/opinion/articles/2019-09-03/boris-johnson-s-brexit-ultimatum-threatens-britain-s-constitution

Gambling.

Chris Ratcliffe/Bloomberg

After weeks of poking and jabbing, Boris Johnson finally looks close to getting the reaction from parliament he seems to have wanted all along. If lawmakers succeed in taking charge of the parliamentary time table Tuesday in order to pass legislation that would block the prime minister from pursuing a no-deal Brexit, he is expected to demand a snap election. A two-thirds majority of parliament would be required to approve a new vote. 

It’s a high-risk strategy befitting a politician who likes to roll the dice. Neither Johnson nor anyone else can predict how it will unfold. What can be said, though, is that when the dust settles, Britain’s constitutional landscape will not be quite the same again.

Tussles between executive and legislature are common in U.S. politics, where the branches are separate and their roles are enshrined in a written constitution. But in Britain the majority party forms the executive and dictates the legislative schedule; the two branches are intertwined and the balance of power between them is largely governed by convention.

The existing order was flexible enough under a workable majority government. But it broke down after the 2017 election produced a hung parliament. MPs opposed to Theresa May’s Brexit deal began breaking with convention, including to seize control of the timetable. Now they are trying to do so again, but this time to thwart an executive that wants to circumvent parliament. The battle is now so totemic for both sides that winning takes precedence over preserving constitutional integrity. The question is how that will change the terms on which future political battles are waged.

Johnson’s decision to suspend (or prorogue) parliament, argues constitutional scholar Paul Craig, is an abuse of the government’s discretionary powers; it “diminishes parliamentary sovereignty as a foundational principle, and transforms the U.K. constitutional order such that the cards become stacked in the executive’s favor.”

QuicktakeConstitutional Crisis

Not everything that is undemocratic is unconstitutional, as my colleague Noah Feldman noted Monday. Most constitution-watchers expect legal challenges to Johnson’s move to fail, but Craig’s arguments suggest it is perhaps more finely balanced and that the effects will be long-lasting at any rate. A ruling against Johnson would, of course, put the Queen in the awkward position of having approved an illegal prorogation.

Johnson’s supporters see his actions as both necessary and proportionate; Remainers, they argue, started down this slippery slope under May’s government. And yet a fair distance has been traveled in constitutional terms. Leaving the European Union was officially about restoring parliamentary sovereignty by reclaiming legislative power that had been delegated to the European Union. Johnson has succeeded in making the central political debate about claiming popular sovereignty over a parliament that is dragging its feet over implementing the 2016 Brexit referendum.

His critics, even among conservatives, see a much more sinister shift afoot as Johnson repositions the Tory party (a shift I described recently 
here
). “Fundamentalism to me is something new and radical and ideological that claims a kind of originalism and conservatism to it. And I think that’s what’s happening now,” argues Carl Gardner, a former government lawyer who teaches constitutional law, speaking in a recent podcast debate with the Conservative journalist Toby Young.

There are myriad ways Johnson’s plan could backfire. At present, his Conservative Party are leading in the polls. But Theresa May had a substantial lead when she called a snap election in 2017, which ended in disaster as her party lost its governing majority. (Of course, she was an abysmal campaigner, whereas a campaign would play to Johnson’s strength.)

Still, the electoral math is dizzyingly complex now. There are four U.K.-wide parties, rather than two, which are polling well. The rebellion of a number of Tory moderates (some of whom might be deselected by Johnson for voting against the government) and the possibility that other parties might strike up electoral alliances to stop a no-deal Brexit all make an election particularly hard to predict.

The biggest wild card is Nigel Farage’s Brexit Party, which says it will field candidates in every constituency, including in Conservative strongholds, but has also said it would make tactical concessions to Johnson if he promises to stay on the path to a “clean” Brexit. It’s also seems that Labour will not play along with early elections without attaching conditions. 

Johnson’s chief argument to more moderate voters in an election would be that he’s closing in on a compromise agreement with the EU that would be destroyed if Brussels believes parliament can stop no deal anyhow. That’s highly dubious, as numerous reports from Brussels and EU-capitals suggest. The EU hasn’t closed any doors, and there are no signs that the U.K. government has advanced new proposals that could replace the Irish backstop provision that Johnson wants scrapped.

His other electoral pitches may be more compelling. To conservative voters who are uncomfortable with a no-deal Brexit, Johnson will claim both parliament and the EU left him no choice. He will argue that anyone who thinks a no-deal Brexit poses economic risks hasn’t met Jeremy Corbyn or read his socialist agenda. For Labour voters from leave-supporting constituencies, there is a raft of new spending promises on public services, making Corbyn’s stale campaign against Tory austerity look very 2012. 

It may be that an electoral majority, if he could secure one, would allow normal parliamentary service to resume as well as Brexit to be delivered. And yet once conventions are broken and power is exercised, it becomes impossible to unlearn those strategies or leave such tools untouched. Should Johnson lose his gamble, another leader will likely seize on the precedents he has set. If he wins, we might as well refer to him as President Johnson. It’s unlikely that Britain’s constitutional balance will be what it was.

Johnson is a big-C Conservative, but these aren’t the moves of one who seeks to preserve an existing order, or change it through accepted process, which would be the hallmarks of true conservatism. He is, as Gardner has it, “aggressively asserting the power of central government over all other institutions — over parliament, over the courts, over the public itself.”

Can a conservative be a revolutionary really? Former U.S. Secretary of State Henry Kissinger wrote in his book Diplomacy that under the right conditions, the combination can be devastatingly effective, at least for a time:

What is a revolutionary? If the answer to that question were without ambiguity, few revolutionaries would ever succeed. For revolutionaries almost always start from a position of inferior strength. They prevail because the established order is unable to grasp its own vulnerability. This is especially true when the revolutionary challenge emerges not with a march on the Bastille but in conservative garb. Few institutions have defenses against those who evoke the expectation that they will preserve them.

He was speaking of Otto von Bismarck – a figure much admired by Johnson’s closest adviser, Dominic Cummings. But he might have been talking about Britain circa 2019.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:

Therese Raphael
at traphael4@bloomberg.net

To contact the editor responsible for this story:

Stephanie Baker
at stebaker@bloomberg.net

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