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Britain’s Constitutional Crisis
https://www.youtube.com/watch?v=BIWmIb0NnFk
The leading candidates to replace David Cameron as leader of the Conservative Party, Michael Gove and Theresa May, have both said they won’t trigger the Article 50 process until the end of the year. This has annoyed François Hollande, who responded much like a woman whose husband tells her he’s leaving her but refuses to move out. “The decision has been taken,” he said, “it cannot be delayed and it cannot be cancelled. Now they have to face the consequences.” A speedy Brexit, he said, “would avert all the uncertainties and instability, especially in the economic and financial domains. The faster it goes, the better it will be for them.”
The problem is that it can be delayed and it can be cancelled — constitutionally speaking, anyway. Article 50 states that a government planning to leave the EU shall notify the EU “in accordance with its own constitutional requirements.” There is no legal precedent, because it’s never been invoked before, but it’s very clear that only the nation planning to leave the EU can trigger the process.
While the referendum clearly calls for Britain to withdraw from the EU, it offers no guidance about the terms of that withdrawal. The Leave campaign argued that the EU would immediately sign a favorable trade deal with the UK, given that this would be in everyone’s interests. They dismissed the suggestion that the EU might be unwilling to do this as scaremongering. But they seem to have been wrong. Jean-Claude Junker, at least, has said there can be no exit deal that gives the UK access to the single market unless it is willing to accept the free movement of labor. And it makes good sense for France to hold fast. Hollande is trailing in the polls and facing primary and national elections; it’s in his interests to look tough and to persuade as many companies as possible, particularly in the financial services industry, to relocate to Paris.
While the referendum made it clear that the majority of Britain wants to leave the EU, it says nothing about whether the government should accept a deal in which Britain keeps access to the market and accepts free movement.
The situation is particularly fraught because it’s now so clear that Boris Johnson never really meant for Leave to pass. His plan, it now seems, was to use a narrow victory for Remain as leverage for a better deal with the rest of Europe. He envisioned challenging Cameron as the plucky loser of the Brexit bid. His miscalculation, in Tory elder Michael Heseltine’s words, has generated “the greatest constitutional crisis of modern times.”
What does that mean? If a state has no written constitution, how can it have a constitutional crisis?
The constitutional crisis involves trying to figure out who, exactly, has the power to withdraw from the EU. The referendum was merely “advisory,” it didn’t automatically trigger Article 50. But who is it advising? Did it advise the Prime Minister? If so, would he or she have the authority to leave the EU on Britain’s behalf? Or does it advise Parliament? No one is quite sure.
There are, however, key constitutional principles at stake. According to the UK Constitutional Law Association,
the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament. Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.
They argue that without Parliament’s backing, the prime minister would be exercising so-called royal prerogative powers, a collection of executive powers held by the Crown since the middle ages and now in the hands of ministers. These are often used in foreign affairs. But case law, they say, establishes that these executive powers can’t trump an act of Parliament. Legislation, in other words, can only be changed by legislation:
The relationship between statute and the prerogative has long been contentious, and up until quite recently – the 1980s – it was arguable that the exercise of prerogative powers (though not their existence) was beyond the capacity of the court to review; the King could do no wrong. Whilst the courts might not have been able to review its exercise, they certainly could and did rule on whether the prerogative contended for by the Crown existed in the first place. One of the earliest limits on the prerogative was that it could not be used to undermine statutes; where the two are in tension, statute beats prerogative.
Case law is key to the separation of powers in the British Constitution. The seminal case was the 1610 Case of Proclamations. The Government cannot take away rights given by Parliament and cannot undermine a statute. “For the courts to hold otherwise,” they write, “would place the rights of British citizens at the mercy of the Government and would be contrary to Parliamentary supremacy.”
The “obvious intention” of the 1972 European Communities Act, they continue, is to ensure the UK’s membership of the EU and for the EU Treaties have effect in domestic law. Section 2 of the Act provides that “all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties are part of UK law.” Triggering Article 50 would invalidate the Act, and would thus end in the loss, to British citizens, of EU rights. It would also strip British citizens of their rights in relation to the European Parliament, such as the right to vote and to stand in European elections. The Government, they argue, cannot unilaterally strip these rights from British citizens. It can only do so with parliamentary approval.
Other legal scholars base an argument to the same effect on the 2011 European Union Act:
In constitutional terms, this section forms the bedrock of the mechanism for ratifying changes in the UK’s relationship with the European Union, and at the Bill’s Second Reading it was expressly conceded that it would affect the prerogative. The mechanism it envisages is one of dual consent. The consent of the electorate through a referendum is sometimes necessary, but never sufficient. The 2011 Act does not make referendum results automatically binding (in contrast with, for example Section 8 of the Parliamentary Voting System and Constituencies Act 2011). Parliament is, of course, unlikely to ignore the will of the electorate, but it might (and arguably should) use its powers to impose conditions and safeguards, procedural or substantive, on the manner in which the consequences of a vote in a referendum are dealt with.
It has long been accepted constitutional practice, they note, to secure parliamentary consent for matters where there was genuine doubt, even if slight, about the scope of the prerogative. This seems obviously to be such a case.
It gets even more complicated when you consider that a great deal of EU legislation has been incorporated into British law and tested in the courts. It’s thus part of case law, now. This means that even if a statute is removed, its principles would remain in force:
“If some EU law is retained in domestic law post-withdrawal, what would be the mechanisms used to interpret it?” said Prof Douglas-Scott. “Would UK courts revert to pre-1972 understandings of UK law, or would they continue to look at EU law and decisions of the European Court of Justice to interpret British law?”
Furthermore, new domestic laws would have to be introduced to fill gaps where the EU currently has competence — for example, in the licensing of medicines — added Prof Douglas-Scott.
Whatever type of legal divorce takes place post-Brexit, it will tie up resources for years to come. “You have to think of it as a reverse accession [to the EU]. It’s the whole of the civil service for a decade,” said Mr Gleeson.
It’s particularly complicated for the Conservatives, not least because most of them are against leaving the EU and see it as a one-way ticket into the abyss. The overwhelming majority of the financial and business community wants to keep free access to Europe’s single market, but there’s no way this will happen unless Britain accepts the great majority of EU rules and accepts the free movement of workers. The agenda of the party’s funders, in other words, is at odds with the agenda of the people who voted to Leave.
So what odds do you give that no one ever triggers Article 50?
Published in General
Well, then what’s the problem we are addressing? Personally, I think the precise details of the eventual UK-EU trade pact is within the competence of elected MPs, all of whom are subject to the voters’ electoral sanction. But if the next Tory government feels queasy about it, by all means hold a referendum on it. My guess is that the Brits weren’t seeking direct democracy . . . they just want their elected leaders to return a modicum of sovereignty to Britain, especially the right to decide which immigrants might be beneficial and which clearly will not. If there are MPs who can’t understand this simple message, I’m sure they can be made to. That requires an active and engaged electorate. The Brexit turnout suggests that’s not a problem … for the time being.
Thank you. That is good clarification.
I think the contradiction in your opening sentence, even with the link, negates the idea that Britain has a constitution. Words still mean something outside of Washington DC and thus a constitution must be written and properly ratified.
Is Brexit enough? This process is interesting and educational as well as exciting. What really adds fuel to the fire is our own political crises within each political party in the U.S. Is Trump our Boris Johnson, just a different flavor? I’ve been feeling some frustration at the goings on here but now I’m starting to enjoy. It looks as if something new might actually happen. We can work to restore our Constitution or we can consider the direction BrentB67 has outlined.
Not much I can add to this. Peter Oborne documented the takeover by the media-political class a decade ago. He would argue it was rather prescient.
I agree. But people are arguing that Britain should throw its established (if not constitutionally-enshrined) process to the wind based on the results of a non-binding referendum because “the people have spoken”.
Essentially, the people were given two different mechanisms by which to voice their opinion – the normal Parliamentary election process and this referendum – and the people delivered conflicting results. Which one of those two opinions of the people should be granted precedence? I’m reading arguments here that the results of non-binding referendum should take precedence over the orderly established process (because of “the people”), and I hope it doesn’t come to that – even though I agree with the desired outcome.
Except the courts cannot overrule Parliament and the laws it enacts. That Parliamentary Supremacy thing makes Parliament’s laws constitutional because Parliament passed them.
Eric Hines
Theodore Dalrymple had a good piece on City Journal:
If the former Secretary of State for European Affairs looks you in the eye and tells you the EU is anti-democratic, you probably should listen.
Britain will no longer have a trade agreement with the EU. (Cue the sinister orchestral stinger.) Neither do we. Do we trade with the EU nonetheless? Yes, we do. Is there any reason for the EU to cut off trade with the UK other than to make François, Jean-Claude, Martin, and Donald look good? No, there isn’t. Will doing so anyway damage the EU economy at least as much as it damages that of the UK? Yes, it will.
François can go hold his breath; maybe he’ll achieve a compelling shade, though it seems unlikely. Either way, one of the advantages of Brexit is that you will no longer have to tell François to go peddle his papers — it’s implied.
It’s an inconvenience, and as Claire has pointed out, it’s damaging to Labour, but the party can get rid of him, if only by withdrawing support for him and running a Labour candidate against him in his district at the next election.
Eric Hines
Only if the Federals object at gunpoint.
Eric Hines
I have already stated that BREXIT will not happen. The elites rule the world and democracy is dead. It has been dead for a while. It is dead in the UK where the will of the people on BREXIT is and will be ignored. It is dead in the states where SCOTUS constantly over rules the people’s will. Democracy is dead, it is so dead that the elites are not even hiding it any more.
It’s not at all a comparable situation. In the first place, in Great Britain, the people aren’t sovereign, Parliament is.
In the second place we have a written-down, prescribed procedure–the critical advantage of a written Constitution–for how to change/remove things like the 2nd Amendment.
Eric Hines
BTW – Don’t you think the voters generally understood there would be negotiations and—although “access to the single market” is certainly going to happen—that all negotiation involves compromise? If it didn’t, it wouldn’t be called a negotiation.
The implicit point here seems to be that somehow 52% of Brits thought they could have all the benefits of EU membership AND regain unfettered sovereignty. I think the opposite is true: they knew it would cost them something, but they valued their sovereignty higher than the EU’s economic benefits. So now it’s up to politicians to get the voters the best deal they can. That’s what they get paid for, no?
The people never had a direct vote before Brexit addressing the issue of retaining or relinquishing sovereignty. So, although non-binding, it seems incumbent on Parliament to move forward on Brexit. I’m not schooled sufficiently in the British system of government to say what happens if the votes are not there in Parliament to start the leave process. Someone tell me what happens.
No, a Constitution is written, but Great Britain is constituted–and so has its constitution–based on an accretion of documents like the Magna Carta, the Bill of Rights of 1689, the Crown and Parliament Recognition Act of 1689, the Acts of Union of 1707, the Act of Union of 1800, the Parliament Acts of 1911 and 1949, and a potful of others, and accumulated Common Law.
Eric Hines
Probably a dissolution of Parliament followed by a general election.
If imagining how Boris might answer this question doesn’t bring a smile to your face, you’re probably not as familiar with his rhetorical gifts as you ought to be. }:-))
That was certainly my understanding.
I understand this as well. But in both systems – indeed in any rule-based system of democratic government – the procedures cannot work unless the people respect the need to stay within those procedures.
Progressives in America are increasingly pushing the notion that the wishes of the majority should become law, and if the process is preventing this implementation then the process should be ignored. I am hearing echos of this argument from conservative Brexit supporters.
Claire,
I think your headline is misleading. This is not a constitutional crisis. This is a decision that must be made. Of course, the sour grapes contingent of Remain is using every opportunity to try to sabotage the whole enterprise. I don’t think it really is proper to attribute evil to Gove or malintent to Boris. For whatever reason, their signals got crossed and they have fouled the situation momentarily. Theresa May is a stealth Remain candidate and would be unacceptable. There is a dark horse in this who appears to have her head tightly affixed to her shoulders. According to IF a poem by Kipling, this is a good idea.
Leadership Hopeful Leadsom: UK Could Leave EU As Early As Next Year
If only Lord Heseltine had read IF to Boris before he pulled out.
https://youtu.be/JWvcwVWCcnY
Regards,
Jim
No one knows, which is exactly why it’s a constitutional crisis.
It works differently here. Progressive strategy is to rely on the Supreme Court to keep the outer shell of words from the Constitution but hollow out the inside and replace it with new content. Watch what will happen with the 2nd Amendment after another liberal justice joins the Court. The Amendment will still nominally “exist”, but not in substance.
None of which is a constitution.
I think we soil our own constitution by saying that a collective group of historical legislation rises to the level of a written constitution.
Yes We Can! Start here.
The Constitution enables us to restore it without any interference from those for whom the status quo is sine qua non (aka Congress).
I’d amend this a bit to Progressives pushing the notion that the wishes of the majority should become law, if they accord with the wishes of Progressives. If not, the Courts are a backstop to overturn the wishes of the majority (see, for instance, Prop 8 in California). I don’t like it but have to admit it is a brilliant strategy – heads we win, tails you lose.
And one of the perennial crutches of liberal jurisprudence – at the Supreme Court and other levels – is to claim “public opinion has shifted” or “a majority of Americans clearly want this” when overturning long-standing precedent or traditions.
I would like to see more vocal reiteration of the well-established observation that making individual laws based on simple popular majorities – whether through referendum or court-as-ersatz-Ecclesia – typically leads to poor outcomes.
No, that’s not really the question. The difficulty is that the party at large still apparently wants him, and yet the MPs can’t work with him. The Party chose, and may choose again, someone who can’t currently fill a Shadow Cabinet. That’s not just inconvenient, it’s an irreconcilable problem which may result in a complete party split.
I am not familiar with his rhetorical gifts, clue me. I only lately began to realize that he is considered a little flakey by some.
Referenda are a fairly novel innovation in British politics, this was only the third national one. They only occur when Parliament cannot resolve the question, essentially abrogating their power of decision back to the electorate. Once they have spoken it is then Parliament’s job to carry out the result.
As the referendum was in the Conservative party manifesto there is nothing unconstitutional in this. Nor is the current state of affairs a crisis, apart from in the Labour party of course.
To all,
Just as a point of clarification. Britain does not have a written Constitution, so use of the term Constitutional Crisis seems out of place. However, as the chief objection to EU is its ability to supersede the sovereign law making capability of its member Nations and impose the dictates of an unelected bureaucratic autocracy with rubber stamp parliament for decoration, I think Britain ought to think long and hard about the loss of its whole legal history to the Global Governance Goblins of Brussels.
There that clarifies it.
Regards,
Jim