Brexit and the Constitution

It might appear that the current apocalyptic tone in British politics is a unique and contingent result of Brexit, but the claim that "politics is broken" has a long pedigree, while the twin suggestions that the institutions of the state are on the point of collapse and the established political parties are about to be swept away by the winds of change are as old as the institutions of the state and political parties. But just as none of this is really novel, so we shouldn't assume that there isn't change afoot. The archaism of Parliamentary procedure lends an absurd air to contemporary events, but it also obscures the extent to which the unwritten constitution is being dynamically rewritten before our eyes, most obviously in establishing the right of the Commons to seize control of the order of business in extraordinary circumstances. The Queen isn't about to prorogue Parliament, but the fact that this could be seriously suggested indicates the fluid nature of the times.

That the constitution requires continuous but careful reform is the central, motivating belief of British liberalism. Though it has never dominated the parliamentary agenda to the extent that social and economic reform has, it remains the ne plus ultra of liberal parliamentarianism. No liberal administration, from Gladstone to Blair, has been complete without an attempt to refine and improve the constitution in a "progressive" direction. That modern initiatives, such as electoral reform or changes to the composition of the Lords, have often been ridiculous in both conception and execution is irrelevant. They serve a catechistic purpose in reaffirming both the parliamentary road to liberalism and the supremacy of the executive as the engineer of the state. While many have claimed that gay marriage was the signature liberal achievement of the coalition years, the failed 2011 referendum on the Alternative Vote was just as symbolic, and would now be held as the crowning achievement of the Liberal Democrats if it had been approved.

The reconfiguration of British politics, i.e. the emergence of a centre party that will marginalise both Labour and the Conservatives, is obviously a constant desire of a certain strand of media commentary, but it is no more likely today than it has ever been. Just as Renew failed to make an impression in the Newport West by-election, despite the Guardian's hopes and subsequent claims that the 2017 return of two-party politics is now over, we can be confident that Change UK will fail to trouble the scorers come the next general election and probably won't even make much of an impact should the European Parliament elections go ahead in May (not least because they will further split the irreconcilable remain vote with the Lib-Dems and Greens). The realisation that Chuka Umunna is never going to be a British Macron, along with the clear indication from Tom Watson that the Labour right isn't going to split, has helped shift liberal expectations away from an insurgent third party towards the emergence of a pro-EU centre-right grouping from the ruins of the Conservative Party. As this would literally be business-as-usual, it has to be seasoned with the spice of constitutional reform.

Tom Clark in Prospect catches the mood: "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. The Brexit crisis ought to be the moment that finally chivvies us into getting around to it". One thing this ignores is the extent to which liberals successfully altered the constitution in the years immediately prior to the 2016 referendum, most notably in the passage of the Fixed Term Parliaments Act in 2011. It can plausibly be argued that the current impasse is both the result of the FTPA - without which the government's repeated defeat on its Withdrawal Agreement would have been taken as a vote of no confidence, thus leading to a general election - and Theresa May's cynical attempt to circumvent the Act to her advantage in 2017 by calling a snap general election, which backfired and produced a hung parliament.

It is amusing to note the liberal reservations about the Act now that it is in practice, particularly the prospect that a vote of no confidence might produce a new administration. As Clark continues: "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?"

What this points to is an element of continuity in liberal thought: that democratic legitimacy is of less constitutional significance that parliamentary consensus. This is not just an objection to a left-wing Labour leader, i.e. a belief that the judgement of the PLP must trump that of the party membership, but extends to the Conservative Party as well: "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." That "foisted" is the essence of liberal constitutional thought: whatever we do, we must preserve the political settlement from the danger of democracy.

We are clearly in a period of constitutional flux. An "advisory" referendum has been recast as "the will of people" and honouring it has been elevated to the supreme duty of the legislature. A government that lost a parliamentary majority and has been defeated three times on its primary legislation remains in office and could legitimately stay there till 2022. The leader of the opposition has been blackballed not only by the government (recent events notwithstanding) but by the overwhelming majority of the media, retired military figures and even a faction of his own party's MPs, leading to the serious possibility that a general election victory for Labour could result in a literal coup. While a liberal "state of exception" remains unlikely, the heightening of rhetoric - from the hyperbole of Russian meddling to the contempt directed at leave voters - suggests that the style of populist authoritarianism could just as easily be employed by a liberal "strongman".

The likelihood that the UK will see an acceleration of constitutional reform over the next decade has increased. Brexit will have serious ramifications for the authorities and competencies of devolved government, and has already called the value of the union into question. The Supreme Court has become a site of political contest, and one that can only become more fractious as it takes on more responsibility in future. The House of Lords has once again proven itself to be worthless, unless you imagine that giving a platform to the hysteria of Andrew Adonis has been helpful, while the role of the Commons Speaker has clearly been enhanced for reasons that have nothing to do with John Bercow's personal foibles. The legislature has continued its centuries long push to encroach on the rights of the executive and the collective discipline of cabinet (and shadow cabinet) has been further weakened.

The 2016 referendum - which was perfectly proportional and ensured everyone's vote had equal weight, making it superior on at least two counts to traditional constituency elections - has led to a liberal turning away from popular democracy, which is now increasingly characterised as crude and divisive because of its binary nature. Don't be surprised if future referendums are outlawed without the "checks and balances" of citizens' assemblies and the censorship of political advertising on social media (propaganda masquerading as comment in newspapers will, of course, remain untouched). In other words, the constitutional consequence of Brexit is likely to be a redoubled effort to impose a managed democracy, which is ironic as it was the tendency towards this in the decades on either side of the millennium that led to much of the frustration and anger that would eventually find an outlet in the 2016 vote.