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Government vs politics: could a new constitution fix Britain’s broken democracy?

Brexit has exposed a deep rift in our politics. And it's not just May's government that's under threat—it's a the whole system of British governance

By Tom Clark   May 2019

There's a crisis in British politics—and a written constitution could rewire it. Image: Prospect

“I admit that I wasn’t on top of the British parliament’s 17th-century procedural rules,” Angela Merkel confessed in March. The woman who at that moment probably held more sway over the fate of our nation than anyone else outside it—and possibly inside it too—was being sardonic. She knew perfectly well that neither the British people, their MPs or indeed their prime minister were familiar with the venerable precedents which, with great theatricality, the speaker John Bercow had wielded the previous day to scupper the third “meaningful vote,” which Theresa May had been banking on to finally pass her derided Brexit deal.

Standing up from his great green chair, in his long black robe, the speaker told a stunned House of Commons that under a principle established in 1604—and then reaffirmed most “notably” in 1864, 1870, 1882, 1891 and 1912—May’s plan to grind the House into submission in successive votes would not be “orderly.” And, as a result, it would not be happening, at least until something else changed.

Here, in all its baffling absurdity, was the British constitution in action.

May and her dwindling band of loyalists raged at what they saw as Bercow’s manipulations of Erskine May. Her detractors, meanwhile, felt embarrassed at being rescued by a bolt from the blue summoned up by one man’s whim: they understood why Merkel would take the Mickey. British liberals have long yearned to rationalise the far-flung pieces of parchment and vellum, as well as all the half-forgotten precedents on which our governance often rests (see overleaf). The Brexit crisis ought to be the moment that finally chivvies us into getting around to it.

These somewhat farcical events do not, however, make the case for change self-evident. It needs to be argued for—and with subtlety. Because for all the shambling in the Commons that day, a pathologically stubborn prime minister, who had in effect tried to reduce politics to a staring competition, had been checked, balanced and brought down a peg or two. Within days, she was talking about when she’d quit.

Checking brute power is what constitutions are supposed to do. If quirky old Britain achieves it in a way that also apparently makes for cult viewing in California, then where’s the harm in that? Would exposing or tidying up the hidden wiring that connects our disparate constitution have led to better governance through the Brexit emergency, or more generally?

 

Lesson from America

There is a lot in the argument—which Adam Tomkins presses against Sionaidh Douglas-Scott here—that writing down the ground rules in one neat document does not guarantee reasonable argument or fruitful debate.

What are the ideal conditions for creating a constitution? You’d obviously want a blank slate—in other words, a new country. You’d want a deep well of ideas to draw on, ideally from polymaths like Benjamin Franklin and Thomas Jefferson. And you’d want brilliant draftsmen, ensuring every line counted and cohered: James Madison and Alexander Hamilton spring to mind. It was with these extraordinary advantages, few of them available to Britain today, that the Founding Fathers were able to create the framework for American governance using roughly as many words as this article. Elegant and durable, it is treated with religious reverence at home, and regarded as the paradigm worldwide.

And yet, America is today more dysfunctional than anywhere in western Europe, including Brexit Britain. Today those celebrated checks have made government shutdowns routine, and created what Francis Fukuyama calls a “vetocracy,” where all sides can stop anything happening, and nobody can get anything useful done. Even before Washington lapsed into today’s poisonously partisan culture, fundamental 20th-century reforms had to be rendered from ingenious reinterpretations of 18th-century propositions: legal abortion continues to rest on a right to privacy, which itself was conjured out of a clause about something else; civil rights relied on some bright spark insisting that smooth “inter-state commerce” required them. The displacement of politicians by smart-alec lawyers is arguably not an improvement, even if it isn’t as obviously absurd as Bercow’s bellowing.

It may have the orderly minimalism of Marie Kondo’s home, but America’s constitution has become a prison. Amending it is so difficult it has not been done in 27 years, and not meaningfully in nearly 50. Times change and arguments evolve, and so it is—as the late Bernard Crick warned—unwise to presume you can put power relations and rights “above politics.” At the very least, aspiring British constitutionalists should seek to build in more flexibility than the Americans.

Read: Sionaidh Douglas-Scott vs Adam Tomkins
on whether we need a codified constitution

Nor should they worry too much about getting absolutely everything into one crisp document. The US president’s appointment of Supreme Court justices, and their confirmation by the Senate, makes for a tidy organogram, but—even when US politics is functional enough to fill the bench—it produces a politically compromised judiciary. By contrast, the opaque ways by which the English judiciary replenishes itself are mysterious and less democratic in theory, but in practice work far better.

By this point, you may be beginning to feel the temptations of the conservative argument against change. Rather than coming up with a new paper solution that might not work, wouldn’t it be better to work with Britain’s sprawling, tried and tested constitutional inheritance? After all, recent history is littered with piecemeal reforms—the steady growth of judicial review, the Human Rights Act and Freedom of Information—through which the constitution has evolved to the good, without being entirely recast.

Not long ago, I might have bought that line. The last few months of Brexit chaos, however, have exposed the frightening frailty of both orderly governance and individual rights. The long story of this country can sometimes incline to complacency. Its latest chapter, however, should put the case for radical surgery beyond argument.

The point is not the merits or otherwise of leaving the EU, but the shambolic and at times dangerous way in which this profound change has been attempted. In most democracies, an overhaul this fundamental would have required super-majorities in parliament or the country, and very often for some account to be taken of the views of devolved legislatures, too. In Britain, none of this was required. The traditional argument for the absence of constraints is that it allows for clarity. Today, however, not even the keenest -supporters of Brexit could deny that the sprawling process since 2016 has been dogged not only by acrimony, but also confusion.

Since the referendum, Britain has been struggling unhappily to reconcile the “popular sovereignty” of that result with the parliamentary sovereignty on which our wider system is based. As the former lord chief justice, Igor Judge, wrote on these pages in the last issue, plebiscites can be—and in places like Ireland are—built into a country’s decision-making processes. But in Britain they never have been, and so we ended up with the very thick fog in which our politics has been lost ever since.

The politicians said 2016’s vote was “once and for all,” and that is of great democratic importance. Yet the fact remains that legally speaking, the vote was only advisory. In this, the Brexit vote was different from the only other recent UK-wide referendum, about swapping the voting system to AV: the law would have changed automatically if that had been carried. Given the multi-layered complexities of leaving Europe after so many decades, it would have been impossible to draft all the necessary laws in advance. But some sort of plan about what would follow procedurally from a Leave vote was eminently possible, and would have been a very good idea.

“Cameron was too smug to fret about
what would happen if Leave won”

The referendum could have been structured differently, so that the Leavers were required to spell out a precise “change” proposition—like, for example, the Australian republicans who tried and failed to do away with the queen in a 1999 referendum in which they also had to explain and defend how a prospective president would be picked. Alternatively, as prominent Leavers including Boris Johnson, Jacob Rees-Mogg and Dominic Cummings have floated at times, there might have been a case for a two-part vote, separating the questions about whether to leave and how to do so. Again, if we’d only looked round the world we’d have found pointers. In the 1990s and then again in 2011, New Zealanders were asked separate questions about whether they wanted to change their voting system, and then—if so—what to.

But David Cameron was too smug to give advance thought to the technicalities that would flow from losing, and there was nothing in our make-it-up-as-you-go-along constitution to require him to be prepared. During the campaign it was suggested at some times that Brexit would mean hugging Europe close and at others that it would mean breaking asunder, a useful ambiguity for Leavers ahead of the vote, but a huge headache for everyone the moment it came to making sense of their triumph. All anyone knew for sure was that 52 per cent of the votes, cast on behalf of just 37 per cent of potential voters, had plumped for something or other called “Leave.”

 

Irksome May

Although the next prime minister had also voted Remain, Theresa May is by temperament closed and controlling, and so it suited her to take a fairly evenly divided vote and divine from it a unified General Will. We saw that, for example, in her instinct that it should be for her alone and not parliament to trigger Article 50, and in her initial reluctance to cede a meaningful vote on her deal to MPs. We saw it again when, during the heightening crisis this March, a premier who had felt it perfectly appropriate to bring vote after vote, gave a weird televised address to the nation in which she condemned other MPs for tabling “motion after motion and amendment after amendment.”

She was often knocked back politically, but constitution and precedent were rarely any constraint at all. She enjoyed an alarmingly free hand to brush parliament out of the way at one especially dangerous moment. Just ahead of the European Council on 21st March, she ruled out requesting a long delay on Brexit although she knew—indeed, because she knew—this refusal would resurrect the no-deal scenario which the Commons had repeatedly rejected.

Britain’s supposedly sovereign parliament could vote for whatever it liked, but—it transpired, at this dangerous moment—it could not reliably tell a prime minister what to do. Had the Council agreed to her request for a once-and-for-all extension until June, it would immediately have closed down any chance of British MEPs taking seats in the new European parliament in July. British MPs would, at once, have been left with a blunt choice between May’s deal and No Deal, despite having previously rejected both. Nothing in the British constitution, and nobody in the UK could rescue MPs from being immediately skewered on that fork. It was the European Council which, ignoring May’s request, devised a flexible extension and salvaged at least the possibility of parliament retaking control. As I write, it isn’t clear how this great power struggle will play out: but that isn’t the point. If we want a sovereign parliament—something many Leavers are particularly insistent on—then we don’t want to leave it in a position where it can be even potentially usurped by a control freak in No 10.

Read: the six silliest things about the British constitution

To the extent that the constitution proved capable of safeguarding parliament’s role, it relied heavily on the assistance of a few determined individuals. As the legal commentator David Allen Green tweeted: “three statues outside Westminster please: Gina Miller, Dominic Grieve, and John Bercow.” Without the court case taken by Miller, parliament would have been cut out at the beginning of the Article 50 process. Without an amendment tabled by Grieve, MPs would have been cut out of the Brexit endgame. And, without Bercow, the PM would have enjoyed a free hand to grind MPs into submission. So hats off to this trio! But the point of a constitution—surely—ought to be that one does not need to rely on the right person being around at the right time.

And in many other respects the hidden wiring has blown a fuse. All sorts of supposed fundamentals have ceased to operate. Rigid collective cabinet responsibility is one which, arguably, will not be missed. Whether change was overdue there or not, however, it would have been better to pause and debate reform, rather than just switch off the old rule purely because it was getting hard to make it stick. Other customs swept out of the way had obvious value in restraining the mighty and protecting the vulnerable.

“The last few months of Brexit chaos have
exposed the frightening frailty of orderly
governance and individual rights”

It is a splendid tradition of our system that our legal rights can only be removed when struck out expressly in legislation. But in the Brexit stampede, as constitutional scholar Vernon Bogdanor and lawyer Schona Jolly wrote in Prospect last year, important protections derived from Europe have been casually diluted. Politicians like Tony Blair wrapped -themselves into contortions to deny it, but the EU’s Charter of Fundamental Rights has real bite in British courts. It conferred new rights—regarding, for example, protection and access to personal data—and also new teeth to entrench these extra protections along with all the established ones in the older (non-EU) European Convention.

As it prepared to take the country away from Europe and its charter, the government could point out that it wasn’t about to rip up any of these rights. But the issue, as elucidated in Bogdanor’s new book Beyond Brexit, is giving future governments a free hand to legislate these rights away without worrying about running up against judicial review. In that sense, British citizens are—in a manner unprecedented in the democratic world—set to move from a constitution which offers them more protection towards one that offers them less. Splendid tradition, then, has not proved to be enough.

At the same time as the rights of British citizens were being quietly diluted, residency and other rights of EU nationals, no matter how long they had been here, were turned into bargaining chips. A modern and civilised constitution would not, one might hope, have allowed this.

 

House of Cards

Disregard for the rights of ordinary people was matched by the indulgence of ministerial privileges, especially over MPs, who were left to fight back with improvised and untested weapons. The supposedly-sovereign parliament had no serious opportunity to test whether it had a much-mooted potential majority for a softer Brexit until two days before we had been originally scheduled to leave. As it turned out, even with no time to organise and an unhelpful No 10, MPs who wanted a permanent customs union found they were only a few votes away from carrying the House.

How could it be that this crucial information could emerge so late, and perhaps too late to count? It is because British MPs are not normally free to set the terms of their own discussion, and this was a debate May wanted to shut down. A cursory look at other parliaments including that in Scotland (see opposite) reveals that a Parliamentary government is perfectly compatible with MPs exerting collective influence over how they spend their time. But May warned her MPs that any attempt to loosen her iron grip on the timetable would be the end of civilisation, and until very late she was able to bully them into line.

Members were left scrambling for straws to clutch. Labour’s Yvette Cooper produced a plan to commandeer a day or two in order to pass a Bill to instruct the PM to request an extension from Brussels. It was an ingenious long shot—but, before the European Council’s own intervention, nobody knew whether things would have gone sufficiently smoothly in the Commons and the Lords to pull it off. The idea that the fate of the nation could turn on a procedural wing and a prayer is disconcerting.

The Brexit legislation handed ministers extraordinary powers to make regulations. The aim was to fill the legal void that quitting Europe would otherwise create, but another effect was to accelerate the established drift away from the requirement that their policies needed to be set out—and scrutinised—in primary legislation.

The government has also dragged its heels on the basic requirement to keep parliament abreast of its plans. It had to produce a rapid update following its big defeats on the floor of the House, but only because of Grieve tabling rebel amendments, and Bercow making the improbable, precedent-defying decision to call them. A constitution defined by traditions was here kept on the straight and narrow only because of an eccentric speaker’s willingness to dispatch with them.

Ministers also tried to sit on advice from the attorney general about the risk of being stuck in the “backstop” forever, a matter of keen political interest. It invoked legal privilege, as if it were advice from a solicitor to an ordinary private client, rather than on behalf of the public. It was forced to back down and publish only after being defeated by another rebellion.

Whatever the eventual outcome of the almighty tussle between No 10 and a fractured Commons, it is surely objectionable that any prime minister—especially a minority prime minister—could even try to disdain the elected House to which she owes her legitimacy. It is objectionable, too, if MPs’ authority ends up being salvaged by foreign governments, instead of being respected by their own.

When it finally seized temporary control of its own proceedings, parliament had to dream up from scratch the rules for the “indicative votes” on the very same day it was to stage them. This sort of haste must have retarded the chance of a fruitful conclusion emerging. So do some deeper traditions.

The very architecture of the Commons—the two green benches two swords’ lengths apart—works against compromise, and indeed the consideration of multiple rather than binary choices.

The palace could have been designed for May’s “my way or the highway” mould, and without a clear statement of what Britain’s constitution actually requires, the people in office can make up the drill. Having scrapped her own social care plans and grammar schools from her 2017 platform, May knew perfectly well that election manifestos have little constitutional force, and none when they fail to win a majority. And yet the moment it began to look as if parliament might soften the Tories’s 2017 Brexit plans, both the prime minister and her Brexit secretary Stephen Barclay, behaved as if any difference between the House and their manifesto would represent a “constitutional clash.”

The comforting thought would be that people in power always play a bit fast and loose in a crisis, and that this is a storm our 1,000-year-old constitution will soon enough weather. Sadly, there is reason to think that most fundamental tensions exposed during the Brexit saga will flare up again and again.

 

Back to basics

Among the first tasks for any functional democratic constitution is to settle who gets to be in charge, when an election is called, and who has to be consulted about major changes. It is not only because of Brexit that the answer to all three of these questions has been getting blurred in Britain.

Devolution has been a deepening fact of life for 20 years, and as they sought to hold the Union together in the 2014 independence referendum, all the UK party leaders made a “vow” that the “people of Scotland will be engaged directly” with changes to “the way we are governed.” But London has not seen Scotland’s 62 per cent Remain vote as reason to offer it any particular sway over Brexit. Northern Ireland, by contrast, has enjoyed special rights, but only because of May being propped up by the factional, and unrepresentatively anti-European, Democratic Unionists: the province’s 56 per cent vote against Brexit actually counts for less than nothing. Lacking comprehensive reform, London’s attitude to the nations and regions continue to be defined by passing flukes of parliamentary arithmetic, and the Union will never be stable.

As to when elections are called, the partial “reform” embodied in the Fixed-term Parliaments Act has the sort of perverse consequences associated with piecemeal tinkering in the tax system. Fixed terms were meant to shift power out of the hands of the PM by ending their ability to threaten colleagues and opponents with an election. But within a few years of its passage, May was able to short-circuit the law and force an opportunistic ballot. By removing the ability to crystallise “confidence questions,” it has removed a traditional means of forcing a crisis to resolution. At the same time, by narrowing the range of motions that can topple a government, it has entrenched a zombie administration in office.

The fixed-term law also introduces dangerous ambiguity on the last of our fundamental questions: who gets to be in charge. In years gone by, the loss of a no-confidence vote triggered an election, and that was that. But now, even if the terms of the Act are fulfilled, there are 14 days for someone else to try and cobble together a majority, but no guidance or precedent about who enjoys this chance. The assumption has been that the first chance would go to the leader of the opposition, but is that necessarily right? -Tradition has it that the monarch should send for whoever is best placed to command the confidence of the House—which probably isn’t Labour leader Jeremy Corbyn. Just three years ago, his own benches voted for him to quit, and many of them continue to mutter he isn’t fit for No 10; Tories who agree on nothing else can all agree on that.

In theory at least, it seems more plausible that someone like an Amber Rudd figure on the Tory left or Yvette Cooper on Labour’s centre-right would stand a better chance of securing the cross-party acquiescence required to sustain an administration through the emergency. But who is to say whether they will get a go? In extremis, the decision could fall back on the queen. She would not be amused. She had hoped that she’d finished with picking prime ministers back in 1963, when the palace and the “men in grey suits” controversially settled on Alec Douglas-Home. Soon after that the Conservatives dragged themselves into the 20th century, and allowed their MPs to elect their leader.

But in 2019, neither Conservative nor Labour MPs have the final say on their leader. It has been impossible to disguise the seething mood of mutiny on the Labour side since the selection of Corbyn—and it is much easier to get away with chaos in opposition. But it is on the government side where zealous party activists are—now that May has signalled she’ll go—set to pick a serving prime minister for the first time in history. If a Johnson or a Rees-Mogg emerges, as they very well could, moderate Tory MPs could refuse to recognise them, leaving a minority government to crumble away. Under Conservative rules, the parliamentary party could soon table a vote of no confidence in a leader foisted on it by the voluntary party. Who would then get the next go at being PM? Nobody knows.

 

An ordinary country

Underlying the Brexit impasse in parliament and our constitution, then, is the breaking of the pivot between the parliamentary and membership wings of our political parties. Fixing that pivot looks formidably difficult on both sides, and seeing as parties are fundamental in how any modern constitution operates in practice, this greatly ramps up the chances that the old rule book in Britain will continue to throw up strange and perhaps disturbing results. It is time to rewrite it.

This moment of panic is not the time to finalise all the details—and those details will matter. While their form proclaims permanence, the sad reality is that most constitutions don’t last long at all. A tally at the University of Chicago a decade ago calculated that the average constitution to come into force since the French Revolution had lasted just 17 years; only a tiny minority of them endure more than a few decades, with many coming unstuck on small snares in the drafting.

What we should be able to settle soon, however, are the basic principles and processes. This country is lucky in that the fundamental ideas to enshrine are familiar and broadly shared: the accountability of parliament to the country, of ministers to parliament and of everybody to the rule of law. For all the talk of division, it should be possible in a mood of consensus to celebrate these inherited ideals, while acknowledging the traditions and processes we have inherited are inadequate to defend them.

To build a new set of effective ground-rules we must be willing to draw on parliaments and constitutions around the world. The box (“Beg, borrow and steal, p22”) contains a few tips we could start weighing up: including the more collaborative approach to parliamentary timetabling seen in Scotland; and the express and pro-active role of the Bundestag in Germany in picking a new chancellor. When it comes to the relations between nations and regions, myriad federal states have a great deal to teach us.

An enduring constitution cannot, however, be the preserve of professors of comparative government. It must be rooted in the values of the people it is designed to serve. Traditionally, it has been a struggle to persuade most busy citizens to care about questions of process rather than the substance of policy. But after seeing, with Brexit, just how badly things can go awry without the right rules there is a growing appetite for kicking democracy into shape.

At a recent Oxford conference on “remaking the constitution,” seasoned campaigners described the mood as more invigorating than anything they had experienced in Britain. The positive example of Ireland harnessing ordinary citizens’ voices in its own constitutional processes has encouraged new faith in the possibility of getting ordinary citizens directly involved in the deliberation. Seeing as virtually nobody, on either side, is happy with the direction of Brexit, virtually everybody should—surely—have a new interest in seeing our politics renewed.

Many Remainers view the prospect of departure from the European Union as an anachronistic statement of British exceptionalism. That is as may be. But it could just be that the convulsions we have experienced along the way will finally persuade this country that its venerable heritage does not exempt it from the usual requirement that modern states run themselves according to a coherent rule book. Should that happen, it will represent the shrugging off of another form of exceptionalism. And be very much to the good.

***

Beg, borrow and steal: Bright ideas for fixing Westminster from around the world

Scotland: parliament controls the agenda

The government’s iron grip on the timetable of MPs has distorted the Brexit debate. In many other countries it is not dictated but brokered through a “business committee” reflecting the majority but also the broader balance of forces in the legislature. In some parliaments, including Scotland’s, the agenda also has to be put to the whole chamber for approval. This makes it much more difficult to close down important discussions ministers would rather avoid.

Germany: choosing a new prime minister

It is impossible to have a chancellor without a majority in the Bundestag. At the start of each term a single candidate—the leader of the winning party or coalition—is formally proposed by the president and members of the Bundestag vote in a secret ballot. If the chancellor ever loses the support of parliament, a no confidence vote can be called, but a successor must be elected at the same time.

Ireland: getting citizens involved

Ireland’s Citizens’ Assembly was formed in 2016 to consider a series of questions, most famously abortion but also climate change, referendums, aging and fixed-term parliaments. It allowed a selection of 66 randomly-chosen citizens, plus 33 representatives from political parties, to suggest a range of constitutional amendments—providing a means for ordinary people to feed into Ireland’s governing document.

South Africa: protecting rights

Arguably the most progressive constitution in the world, the South African document places “human dignity” and “the achievement of equality” at its heart. The bill of rights not only bars discrimination on the grounds of sex, race and religion, it was the first such bill to outlaw discrimination on the grounds of sexual orientation. The reality, unfortunately, has not so far matched the aspiration.

United States of America: line of succession

No one knows who becomes PM if Theresa May resigns. That’s not the case in the US where there is a clear line of succession. Should the president quit or die, he—and it has always been a he—will be replaced by the vice-president. If he is unavailable too, next in line is the speaker of the House, followed by the longest-serving member of the Senate, before scrolling through the cabinet, starting with secretary of state and ending—at number 17 in line—with the secretary of homeland security.

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