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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
Quite right, thank you Mr. Walker.
Reinforcing my generally cynical and often pessimistic nature is not appreciated.
Carry on.
I’m not questioning the constitutionality (regardless of how we defined that term in the context of Great Britain) of the referendum, although I am perplexed about the notion that Parliament is under a legal obligation to carry through the result of the referendum if it was not legally binding.
What concerns me more is what happens if a clear conflict between the voters’ opinion in the referendum and the voters’ opinion in Parliamentary elections arises. Let’s imagine this current Parliament can’t get its act together on Article 50 (or electing a new PM who will push it through) and new elections are held. What happens if the people elect a clear pro-Remain majority in that election? Does this referendum just disappear? Would a new referendum be required? I don’t think that kind of potential ambiguity is healthy for anyone involved.
How America-centric! (Yes, I’m kidding… mostly.) They do not mean the word in the American sense, quite–but it is still the right word.
Whether you want to call it a constitution or not, there is nonetheless an established set of British traditions and laws that have been referred to as the British Constitution since before anyone ever dreamed of us Americans writing one of our own. The dictionary definition of the word accepts that usage.
Of course it is. It’s just not built on the United States model.
collective group of historical legislation rises to the level of a written constitution–no one is arguing it’s a written constitution. And that’s the point of confusion: the United States Constitution is written, Great Britain’s constitution is not.
Eric Hines
Very helpful post, Claire. I’ll be curious to see what happens to UK law that has incorporated EU law.
I think it was always a non-binding referendum. Therefore, if a new Parliament is elected and still votes to remain, the referendum is essentially nullified. That is way I was so frustrated with the wild market swings last week. All for not much of anything.
Precisely. Another way to express it is that there are formal and informal Constitutional amendments. There’s no way the Constitution’s Commerce Clause ever meant that the federal government can regulate wheat grown by a farmer exclusively for the consumption of his own livestock. Yet in Wickard v Filburn, after getting threatened with court packing by FDR, the Supreme Court’s Justices suddenly discovered that’s exactly what it meant. That’s an informal amendment. The words stay the same, the outcome utterly transforms the power, scope and jurisdiction of the federal government.
Try this as a starter for ten. This is him being serious.
He is an acquired taste. While waiting to follow Boris at a Tory party conference, Arnold Schwarzenegger opined “Who is this guy? He’s fumbling all over the place”.
The American standard is that which by all others shall be measured thus Britain’s loose definition fails to meet our standard.
Not at all. We are, after all, stuck with the ordinary meaning of the words.
Eric Hines
One way to deal with it would be quite straightforward, if unlikely: include in the Article 50 invocation a clause to the effect that upon Great Britain’s departure from the EU, all British law incorporating EU laws are rescinded and without effect.
But the bronze knot unraveling implement is rarely used in politics.
Eric Hines
Agree. I’ve looked it up in the various on line dictionaries (I don’t own a hardback version at the house, just the office). All of them refer to written and/or document.
If we are going to hold ourselves to a conservative standard that words have meaning I think we should do so consistently. While it may be romantic to refer to a British Constitution the reality is it is an emotional amorphous concept bandied about by so called constitutional lawyers in the U.K. and not an actual written document.
That the colonists appropriated the term and elevated it to a written document should be a point of pride we should hold dear and not acquiesce to lesser primitive definitions. Especially as we celebrate the 4th of July.
Make no mistake: FDR had succeeded in packing the Supreme Court beyond his wildest dreams by the time Wickard rolled around. The Justices didn’t “suddenly discover;” they already knew.
Eric Hines
You’re the only one calling it a “British Constitution.” The rest of us have been calling it a “British constitution.”
And it’s theirs, not ours, nor should either be confused with the other.
Eric Hines
The wonders of democracy. As the Conservative party membership and voters were overwhelmingly for Leave, we’d be talking about a hypothetical situation where Labour somehow avoided a split; reconciled its lost voters who want out; did a deal with the SNP and probably the Lib Dems too; and found some money to fight an election with a furious UKIP fighting for their base.
Of course after this last week who is to say what is possible?
Hmm, if Britain had had a written constitution, would the United States have decided to get by with an unwritten one?
I’m having a hard time trying to figure out if you are being serious here?
“So-called constitutional lawyers” would actually include those who wrote our own Constitution. They talked about the “British Constitution” quite comfortably, and moreover held it in a great deal of respect. Take it up with Alexander Hamilton:
Or James Madison:
The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry… this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty…
On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate…
By what right, then, did the North compel non-secession upon the South in 1861-1865? I don’t recall a Hotel California Clause in the Constitution: You Can Never Leave.
Lincoln labelled it a Rebellion. Is that all it takes—a labeling change—to transform a legal secession into an illegal rebellion?
What’s the difference if Texas says Hasta La Vista to this whole Union thing?
I’ll answer my own question: how many millennials from Ohio, Maine, California, etc., do you think are going to risk life and limb to keep Texas in the Union?
All Hail President Abbott!
It’s a legitimate question, but the politics makes it highly unlikely.
Imagine a combination of William F. Buckley and Newt Gingrich, topped with a distinctly British flavor of deliberate goofiness.
This is a great post, but I think the odds of an orderly and beneficial (for UK) exit are still high.
Sure, there’s a lot of uncertainty now, only 10 days after the vote, but that will start to change.
The tories need to fight out this leadership race and I’m sure that through that a clearer picture of what the exit will look like will start to come into focus.
There’s a vacuum of leadership now, but it won’t last forever. Hopefully May/Gove can offer some smart, strategic leadership. If they do I foresee broad, sunlit, uplands.
This.
I don’t agree that this is so clear. It seems much more likely that Boris was running a heads I win/tails you lose strategy: Brexit or no Brexit he would be sitting pretty. Didn’t count on Gove turning on him though.
To all,
I think we need some more clarification. I think the tenor of this entire debate is absurd. We are discussing a country that has been democratic for close to 4 centuries giving away its government to an unelected foreign tyranny. When Winston Churchill talked about a United States of Europe he most certainly didn’t have the present EU in mind. This is quite ridiculous. If the EU Parliament had the power to write & pass laws and the President of the EU was elected by all 500 million people then there would be something to discuss.
The present anti-democratic structure of EU is unacceptable. It is unacceptable to Britain and it is unacceptable to all 500 million people forced to live under it.
Regards,
Jim
Freedom and democracy will leave the European Union on the ash heap of history.
James, I don’t hear anyone on this thread disagreeing with you on this point, so I’m not sure what you’re trying to tell us. Personally, I think it’s long past time that one of the big EU players bowed out.
The thorny issue I see is one of ends vs. means. The British populace expressed a clear opinion – which we all agree with – but the means to achieve that opinion appear very muddled at the moment.
Perhaps everything will shake itself out in due course, as several people here familiar with British politics are suggesting. But if the politics remain messy, Great Britain will face a genuine dilemma at the heart of any democracy: should the stated will of the people take precedence over established procedures?
I think that question is worth addressing regardless of what we feel about the outcome.
If there was ever a case of “you’re both right” it was this one. We have a capital “C” Constitution; it was an enormous improvement over anything that preceded it precisely because it’s written down in plain language that 18th century small-plot farmers could readily understand. The Brits have a small “c” constitution that leaves elites in charge of deciphering its meaning.
The fact we’ve allowed elites to change the meaning of our plain-language Constitution without actually changing its words is a national disgrace—one that is now and will continue to cost us dearly. Regaining the lost sovereignty that’s resulted from this disgrace will be far more costly than what the Brits are going through. But that’s a separate issue.
By the way, I am not sure whether Michael Gove really is the other leading candidate (there’s no question about May). His maneuver among Johnson may prove to have been a murder-suicide.
To clarify the process for those who don’t know — there are currently five candidates, and MPs vote in rounds, eliminating the one who gets the least votes, until they get it down to two. Then the party members choose between those two.
One of the two will almost certainly be Theresa May. The other will almost certainly be one of the three Leave candidates. MPs aren’t breaking down strictly along Leave/Remain lines in their support, but this does mean that those who think the PM must be a Leaver are split three ways — and that split won’t continue. Andrea Leadsom picked up former party leader Iain Duncan Smith today. I wouldn’t be shocked, from what I see now, if she outpaced Gove under the circumstances.
It would be fun if both he and Trump were in power. It would be the Era of Weird Hair. The image below is from a video I saw on the news a while back, which was my first introduction to Boris Johnson: