What price Brexit: is it worth the constitution?

British political system

The debate over Brexit has included extensive argument about the financial costs and benefits of departure. Less has been said, however, about the damage being done to the long-evolved British political system by the actors on both sides.

Like a sports team falling out over whether they should continue playing in a local league, the players have broken up the equipment and taken it to their respective homes, but not yet come to a conclusion.

Britain claims to have parliamentary government, in which the cabinet arises from, gains its powers from, and is accountable to the Commons and Lords.

By convention an administration which loses key votes leaves office and faces an election.

Now a government repeatedly defeated in the Commons is kept in office against its will but resists parliamentary decisions.

Blair, Brown and Cameron all suffered defeats on key policies in the Commons, but they all accepted the outcomes.

Cameron reacted immediately to the rejection of his proposed attack on Syria in 2013 saying: “it is clear to me that the British Parliament, reflecting the views of the British people, does not want to see British military action. I get that and the government will act accordingly.”

The Johnson administration has sought to substitute popular sovereignty for parliamentary sovereignty on the issue of Brexit.

Attorney General Geoffrey Cox told the Commons that it was part of a “dead parliament” with “no moral authority.”

Iain Duncan Smith said on Sky News that “people are sovereign, they lend their sovereignty to parliament for a period of whatever the number of years for that parliament and then it is returned to them. But when parliament returns that sovereign choice to the British people, they are sovereign in making that choice.”

This is at odds with the traditional interpretation of MPs’ role as mediators of public opinion famously set out in Edmund Burke’s 1774 address to his voters in Bristol.

In that speech he asserted that whilst an MP should work for the interests of his constituents, “his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.”

It is also a novel interpretation of the doctrine of the statement of parliamentary sovereignty by Prof. A.V. Dicey cited by the Supreme Court in the Miller case, which assumed that popular authority was transferred at general elections.

Smith’s view opens up unanswered questions as to how referendum results are to be interpreted and what their ‘shelf life’ is.

Is parliament debarred by the referendum from discussing UK-EU relations? And can we assume that the public instruction to withdraw from the EU constitutes an approval of any specific scheme?

The government’s assumptions are closer to those underpinning a presidential system than a parliamentary one.

This contest between executive, parliament and the referendum result has brought the judiciary into a role which some politicians regard as political activism, and which takes it beyond its independent status.

Following the Miller case of 2016 (over the triggering of Article 50), judges were condemned in the national press as “Enemies of the People” in a famous headline which critics, including the Bar Council, argued threatened the rule of law.

The courts have since declared on the legitimacy of the revocation of Article 50, the prorogation of parliament, and will now consider the accusation that the Prime Minister’s additional letter to EU leaders frustrates the purpose of the Benn Act.

Lastly, Britain’s party system is under real threat.

Traditionally made up of two major parties which were broad enough churches to aggregate a wide range of interests and opinions, they are behaving increasingly like sects, adopting hardline positions and expelling heretical dissenters.

The resulting decline in support has given purpose to new or previously minor parties, from the Liberal Democrats to the Brexit Party, in a way which the first-past-the-post system will be unable to reflect at any coming general election, thereby robbing its result of authority.

Many of these institutions and relationships have been under pressure for some time, but the Brexit process has given the those threats critical mass.

It is ironic that those opposed to Brexit are usually from the political tradition critical of Britain’s constitutional arrangements; those bringing it about have previously been attached to the principles currently being tested to destruction.

Whilst there is an understandable focus on the day-to-day battle over Brexit, when the argument is over we may find the sports team has no equipment left to play with, whichever league it is in.

By Dr Matt Cole, research fellow in History at the University of Birmingham. He is the author of Democracy in Britain and Political Parties in Britain and works regularly as a BBC political analyst.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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