A Brexit nervous breakdown

The fabric of Britain's unwritten constitution has been dangerously damaged by partisan passions over Brexit

During the last five months I have been in London watching with growing astonishment as the world’s oldest democracy (based on an unwritten but well-honed constitution) goes through a nervous breakdown. With Theresa May’s withdrawal bill agreed with the EU being defeated thrice by massive Parliamentary majorities for making the UK, in effect, a colony of the EU for the indefinite future, Ms May reneged on her oft-repeated slogan “No deal is better than a bad deal”, by not letting the UK leave the EU on WTO terms at the end of March. Instead she asked for an extension of the withdrawal date from the EU to the end of October.

In the following interregnum, she was ousted from the premiership of the Tory party, which elected Boris Johnson as the leader and thence prime minister (PM) at the end of June with the pledge that the UK would leave the EU on October 31 (Halloween) with or without a deal (on WTO terms). He was faced by a hostile Parliamentary majority of those who had supported Remain in the 2016 referendum, even though in the snap election of 2017 nearly all stood on manifestos to implement the referendum verdict of leaving the EU by the end of March 2019. 

Surprisingly, Mr Johnson succeeded in negotiating a new deal with the EU, which removed the more objectionable clauses of Ms May’s withdrawal agreement, including the notorious Irish backstop, which would have tied the UK as a permanent vassal of the EU, subject to its laws as enforced by the European Court of Justice. But, instead of supporting and lauding this deal, the Remainers have sought to thwart it by using various Parliamentary procedures (unlawful under the conventions of the unwritten constitution) to legislate delays in the withdrawal date. They have also refused to allow a fresh election despite the Tories losing their Parliamentary majority. So, the polity now is in limbo. How has this extraordinary constitutional impasse been allowed to develop?

The proximate cause was the Shakespearean denouement after David Cameron —who had called the 2016 referendum—resigned as PM after his Remain side lost. In the following election for the Tory leadership and thence PM, Mr Johnson, the leader of the Leave campaign, was fatally stabbed on the morning he was to announce his candidacy by his campaign manager Michael Gove, who chose to stand himself. The other Leave candidate Mrs Leadson committed electoral suicide by making foolish remarks about the childlessness of the other candidate (the Remainer) Ms May who won the leadership election and became PM by default. Uncharismatic but stubborn, with little political nous nor intellectual depth, she foolishly called a snap election which destroyed the Tory majority David Cameron had won and was forced into an electoral pact with the Northern Irish DUP for a Parliamentary majority.

She then conducted the most disastrous negotiations with the EU as a supplicant rather than as the proud leader of a major economy and military power wishing to reassert UK sovereignty and the primacy of its distinctive non-European Common Law. By agreeing to the EU’s sequencing of negotiations, leaving the all-important post withdrawal economic relationship with the EU to the last, she gave an inherent advantage to the EU which Michel Barnier and his team exploited brilliantly to tie the UK indefinitely in the EU without any say. 

Illustration: Binay Sinha

Having escaped this trap, Mr Johnson is now faced by another problem created by Mr Cameron. When negotiating a coalition government with the Liberal Democrats, Mr Cameron — seeking to ensure a five-year term to carry out his legislative agenda — agreed to a LIBDEM proposal for a fixed-term parliament. This went against one of the important rules of Britain’s unwritten constitution, which allowed the prime minister to call an election whenever he deemed it desirable for national or party political reasons. Under this new constitutional law a super parliamentary majority is required for an election to be called before the five-year parliamentary term ends. Mr Johnson has failed thrice to get this majority for an election to clear a parliament dominated by Remainers from thwarting the executive’s will.  

In the past, as part of the unwritten constitution, the judges could be expected to find a way through this constitutional impasse. Here again past unwise constitutional change have led to another trap. In the past the Law lords in the House of Lords along with the Lord Chancellor (from the ruling party) dealt with this legal process. But Tony Blair in his desire to ape the European Court of Justice decided to set up a Supreme Court in which the Law Lords became virtually independent agents. 

The dangers of this became apparent when this new court, against precedent and previous laws, deemed Mr Johnson’s prorogation of parliament illegal. It turns out that Lady Hale (known as Spiderwoman for the brooch of a spider she wore during the legal proceedings) was a Remainer. No impartiality could be expected from this court if the Fixed Term Act was legally challenged.

Then there is the Speaker of the House of Commons, John Bercow, an avowed Remainer who used what is meant to be an impartial position to allow an unprecedented and, according to the unwritten constitution (as pointed out clearly by Jacob Rees Mogg the leader of the House), an illegal ruling allowing parliament to take over the business of the House instead of the executive. This allowed various delaying tactics to be enacted into law. Fortunately, he is retiring at the end of October and this trap may be removed in the future.

But, there may be some light appearing at the end of the tunnel. Forced by a Parliamentary Act passed through the unconventional takeover of legislative business by the Remainer parliament permitted by Mr Bercow, Mr Johnson was forced to ask the EU for an extension to the UK’s current departure date from the EU of October 31 to January 31, 2020. This has just been granted as a “flextension”, to end early if Mr Johnson’s withdrawal deal is ratified by the UK and European parliaments by end November, or after a UK general election in December. Otherwise there would be a “no deal” exit on January 31.

With parliament due to vote (as I write) on a December election based on a proposal by the LIB Dems and the SNP — both want an early election for their own special reasons — for a parliamentary vote, which only requires a simple majority, the current Brexit impasse could end. If Mr Johnson wins the election as expected, he hopefully will have the fixed term Act repealed, the Supreme Court abolished and replaced by the old final Appeal Court of the Law Lords supervised by a political Lord Chancellor, and convert the conventions about the Speaker’s discretionary powers into laws. This would restore the fabric of Britain’s unwritten constitution, which has been so dangerously damaged by the partisan passions of Brexit.