How Brexit blew up Britain’s constitution


AFTER weeks of poking and jabbing, Boris Johnson (picture) 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 yesterday 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 US 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 UK constitutional order such that the cards become stacked in the executive’s favour”.

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.

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 travelled in constitutional terms.

Leaving the European Union (EU) was officially about restoring parliamentary sovereignty by reclaiming legislative power that had been delegated to the EU. 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. “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.

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. Can a conservative be a revolutionary really?

Former US 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 defences 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 advisor, Dominic Cummings. But he might have been talking about Britain circa 2019. — Bloomberg

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