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Misrule Britannia

Contrary to the assurances of Brexiteers like the United Kingdom’s new prime minister, withdrawing from the European Union has turned out to be an extraordinarily complicated affair. In fact, it will probably require the UK to draft a standalone constitution for the first time in its history.
Members of the Law Lords, Britain’s senior judiciary take their seats as they wait for Britain’s Queen Elizabeth II to read the Queen’s Speech during the State Opening of Parliament in the House of Lords in London, Wednesday, May, 18, 2016. The State Opening of Parliament marks the formal start of the parliamentary year and the Queen’s Speech sets out the government’s agenda for the coming session.(AP Photo/Alastair Grant Pool)

Britain’s constitution is not “unwritten,” as one often hears. It is, rather, uncodified – written down, but not all in one place. And to its credit, it has proven resilient time and again, sometimes bending, sometimes buckling, but never breaking. Yet that may soon change, for the Brexit debate is testing the constitution’s limits like never before.

Britain’s constitutional framework was conceived during the Glorious Revolution of 1688, when fear of an impending Catholic tyranny led Parliament to invite Mary II and William III to displace James II on the British throne. This bloodless revolution was conducted with the clear understanding that the monarch would no longer reign supreme. Britain became a constitutional monarchy, with statutes such as the Bill of Rights establishing a new lodestar of parliamentary sovereignty.

From then on, the British constitution developed relatively peaceably, sheltered as it was from the waves of revolution that stormed across Europe in the intervening centuries. Indeed, the United Kingdom’s accession to the European Economic Community (EEC) in 1973 was arguably Britain’s first constitutional revolution since 1688. The sovereignty of Parliament – a lynchpin of the constitution – was displaced, with authority passing across the English Channel to the European Commission in Brussels.

At the time, lawyers and politicians worked themselves into contortions to argue that Parliament remained sovereign, insofar as it could take Britain out of the EU. But the reality was that absolute sovereignty no longer rested solely in Westminster. This fundamental shift in the distribution of power was made brutally apparent by the long-running Factortame case (1989-2000), in which the House of Lords’ rulings decided that EU law would prevail over a conflicting domestic statute. Parliament had given up its sovereignty.

Now that the UK is leaving the EU (or at least trying to), the question of Parliament’s future power has come to the fore. Simply returning to the previous dispensation is not an option. The UK constitution has undergone far-reaching change during the years of EU membership, particularly during former Prime Minister Tony Blair’s tenure. Significant power, for example, has been devolved to the legislatures of Scotland, Wales, and Northern Ireland. The 1998 UK Human Rights Act (HRA) has emboldened the judiciary, and in 2009, a UK Supreme Court was established, now physically independent of the House of Lords. These and other changes have shifted Parliament’s authority to other bodies. There can be no return to 1973, no matter what arch-Brexiteers like Jacob Rees-Mogg say.

A LONG CONSTITUTIONAL ROAD
The causes of the current constitutional upheaval, and how they should be resolved, are the subject of Vernon Bogdanor’s Beyond Brexit: Towards a British Constitution.A longtime professor at Oxford who is currently at King’s College London, Bogdanor shows, quite succinctly, that Brexit is no one-off event but the icing on a cake of constitutional developments that have been underway for decades. Gradual reforms, carried out in what he views as a typically British manner, have taken hold organically, owing to pressures that have come to bear on the British state. But now, the European scaffolding around the British constitution will soon be dismantled.

In the absence of an alternative structure, Bogdanor worries that the sudden return of sovereignty to Parliament could lead to constitutional instability. His penetrating analysis of Britain’s EU membership and its implications for individual rights, UK governments’ collective responsibilities, and issues relating to devolution leads him to anticipate that Brexit will force the UK to draft a formal, codified constitution for the first time.

Given Britain’s awkward relationship with Europe before 1973, it was always a safe bet that its experiment with membership would end in tears. Britain certainly recognized the need for a European community, but it did not see itself becoming a core part of it. The British did not have a monopoly on such skepticism and hostility, Bogdanor observes. According to French President Charles de Gaulle, “the nature, the structure, the very situation that are England’s differ profoundly from those of the continental states.” De Gaulle suggested, presciently, that it would be better to have an “accord of association,” and he vetoed the UK’s membership application twice. Only after he left office in 1969 was Britain able to join the bloc.

Of course, de Gaulle was right to point to the incompatibility between the UK’s constitutional model and those of the EU’s continental member states. Even if Britain had joined at the EEC’s founding and enjoyed a greater capacity to “shape the rules to suit (our) own interests rather than those of the Continental powers,” Bogdanor contends that not much would have changed. The overwhelming majority of member states had “constitutional attitudes and political practices” that were “very different” from the UK’s, owing to their “profoundly difficult historical experiences.”

WEAPONS OF MASS DEMOCRACY
In some ways, Bogdanor’s book makes the result of the 2016 Brexit referendum seem inevitable, given the constitutional incompatibility between the UK and the Europeans. The EU’s legal constitutionalism, with its rigid formalism and potent judicial review, could never truly be reconciled with the UK’s preference for “political constitutionalism” and pragmatism. Though Bogdanor does not consider in detail the disharmony that resulted from these competing principles, he shows clearly that accession occasioned a clash of constitutions, one that the EU inevitably won.

Because the UK retained its constitutional pragmatism on the domestic front, it was ill equipped to manage the constitutional novelties that came with accession. Chief among these was the referendum, which, in theory, further attenuated parliamentary sovereignty, creating the potential for a conflict between the will of Parliament and that of the people. Still, Bogdanor rejects the claim that referenda are always, as Margaret Thatcher (quoting former Labour Prime Minister Clement Attlee) called them in 1975, the “devices of dictators and demagogues.” To the contrary, he suggests, they are instruments of “constitutional protection,” ensuring that the people are spared from “major constitutional changes that they do not want.”

But Bogdanor neglects to mention that in continental European countries where the referendum is a longstanding constitutional tool, more rules are in place to manage its use. In many cases, for example, referenda must have clearly stated objectives, and passage requires a super-majority. The UK has deployed referenda without such moderating mechanisms, perhaps owing to its lack of experience with plebiscites. The assumption that referenda would always uphold the wishes of a popularly elected government led British policymakers to ignore the risks.

Former Prime Minister David Cameron, after all, allowed for the Brexit referendum to be held because, with his habitual insouciance, he believed it would be shot down convincingly, just as the 2014 Scottish independence referendum was. One can now understand why Thatcher and Attlee viewed referenda with skepticism. Their rhetoric may have been hyperbolic, but they weren’t wrong to see such mechanisms as a potential threat to Britain’s constitutional order.

THE RISE OF THE COURTS
But an even more consistently potent and intrusive constitutional innovation introduced to the UK by the EU was the judicialization of politics. With accession to Europe, British judges suddenly had more power than ever before. This power was expanded even further when the Blair government adopted the European Convention on Human Rights through the 1998 HRA. Prior to this, British judges had been, in the words of Francis Bacon, “lions under the throne,” with their power greatly constrained by deep-rooted norms and habits of deference.

According to Bogdanor, the combination of EU membership and the HRA woke these lions, conferring upon them “the power to disapply legislation which contravened the human rights guaranteed in it.” Needless to say, it also created a new domestic political debate, over how to reconcile parliamentary sovereignty with this more potent form of judicial review. Until now, the UK has tolerated such judicial review as a necessary concession for the sake of EU membership; after Brexit, however, some will want to do away with it. A challenge to judicial authority seems certain to come with respect to human rights, for example. While the government has promised that the individual rights conferred by EU membership will be retained, it has made no such promise regarding their actual enforcement.

For his part, Bogdanor suspects that the protection of rights may “revert to the constitutional position of 1973,” which means that Parliament, not the courts, would once again have the final say. Such “a process of disentrenchment,” he prosaically notes, would be “quite unique in the democratic world.” Yet, in assuming as much, Bogdanor ignores the workings of the courts, which have not been passive in the face of the UK’s current constitutional upheaval. Decisions in cases such as R(Evans) v Attorney-General(2014) and Privacy International(2019) have potentially laid the groundwork for a more substantive conception of the common law, with common-law rights having been invigorated by EU membership.

Indeed, it is unlikely that UK courts would stand idly by while the government rescinds individual rights that have now been recognized for decades as a result of EU membership. To be sure, Bogdanor’s suggestion that Brexit will lead to a “home grown British bill of rights” may turn out to be true; but it is equally likely that the courts will respond to the UK’s withdrawal from the EU by asserting their own role in the new constitutional order. As Bogdanor himself shows throughout the book, Parliament’s sovereignty has been eroded substantially during the EU-membership period. The immutability of domestic legislation is no longer considered sacrosanct, and leaving Europe won’t change that fact. It would be naive to expect the courts to return meekly to their obeisant position beneath the throne, ignoring all they have learned over the past 40 years.

THE DISUNITED KINGDOM
Bogdanor’s book comes into its own with his discussion of UK devolution, which brings clarity to the impenetrable thicket of practical issues associated with Brexit. Chief among these is the future relationship between the UK’s constituent parts: England, Scotland, Wales, and Northern Ireland.

The most obvious problem, as has been true throughout the Brexit negotiations, is the border between Northern Ireland and the Republic of Ireland, which will remain an EU member state. The 1998 Good Friday Agreement, which put an end to decades of sectarian violence in Northern Ireland, requires that rights be uniform throughout the island of Ireland, and that there be “no diminution of rights” so long as the accord is in place. The implication, Bogdanor concludes, is that the EU’s Human Rights Charter must “remain incorporated in the law of Northern Ireland.” This could create a hierarchal relationship between the constituent states of the UK, with inhabitants of Northern Ireland having more extensive and substantial rights than Great Britain.

Even more fundamentally, Brexit will affect the free movement of goods and people between the UK and Ireland. Even if some solution to the Irish border issue can be found, Bogdanor points out, the introduction of any new regulatory hurdles will create a “border of the mind.”

The movement of people is arguably more manageable than that of goods. For example, the Crown Dependencies (say, the Channel Islands), Bogdanor notes, are not part of the EU but fall within the Common Travel Area, which could be kept to allow UK and Irish citizens to travel freely throughout Ireland and the UK. The obvious objection, of course, is that this would create an enormous back door for EU citizens entering the UK illegally. Bogdanor, perhaps naively, assumes that such a scenario would be tolerated if necessary.

At any rate, customs pose a much harder challenge than the movement of people. Given new prime minister Boris Johnson’s notorious “have-our-cake-and-eat-it” attitude, it is difficult to see how border controls can be avoided after Brexit. In addition to disrupting trade and violating the Good Friday Agreement in innumerable ways, the return of a hard border in Ireland, he concludes, will make a return to the island’s polarized past inevitable.

In fact, Brexit threatens not just the peace in Ireland, but the integrity of the UK generally. In recent years, the UK government’s relations with Scotland have been driven to a breaking point. Under the 1998 Sewel Convention, which set the terms of devolution, Parliament must not pass legislation that affects matters that have been devolved to Northern Ireland, Scotland, or Wales without securing their consent.

Needless to say, withdrawing from the EU manifestly affects these nations, but it is being done without their consent. In a revealing turn of phrase, Bogdanor observes that the UK’s behavior “may be legal without being constitutional.” Though the Sewel Convention is a core component of the UK constitution, the courts are unwilling to enforce the provisions of a mere “convention.” It is not yet clear what consequences will follow from the flagrant violation of the devolution agreement that Brexit will bring, but pressure in Scotland to launch another secession bid is growing, owing to the constitutional contempt from Westminster.

A CONSTITUTIONAL MOMENT?
Throughout his book, Bogdanor describes the scale of the Brexit project in admirable, if dispiriting, depth. The sheer complexity of the undertaking forms the basis of his argument that a formal constitution will become necessary. The question of what “basic social and economic rights … all citizens of the United Kingdom … are entitled to enjoy” will demand clarity.

Brexit, after all, has exposed the fact that the UK not only lacks a codified constitution, but operates according to at least four different constitutional interpretations. As Lord Bingham, a former Master of the Rolls and Lord Chief Justice, observed after the adoption of the HRA, devolution, and the Good Friday Agreement, Britain has been wandering in a “trackless desert without any map or compass.” And now that Brexit is in the offing, it finds itself more disoriented than ever. A written constitution may be the only camel out.

Still, any written constitution that Britain adopts would be anomalous. Constitutions tend to emerge from what Bruce Ackerman of Yale University has called “constitutional moments,” and Britain hasn’t had one of those since 1689. Such moments tend to arrive as a result of revolution or violence, or what Bogdanor describes, rather woodenly, as a “concatenation of inter-connected political problems.”

While Brexit may have emerged out of such problems, the true anomaly consists in the motivation underpinning it. A more fundamental element of constitutional moments is a desire for political progress, an opportunity to lift a country out of its undemocratic malaise. The problem with Brexit is that it represents the opposite impulse. The entire goal is dissolution and disharmony. Any constitution that emerges from this moment will not just have to clarify the relationship between the UK’s constituent nations. It will also need to suppress the Brexiteers’ populist, emotion-driven politics with reforms that can actually work in the real world.

LEAVE AND LET DIE
In How Democracy Ends, David Runciman of the University of Cambridge notes that many of today’s democracies are now held together primarily by negative values, with constituencies uniting on the basis of shared opposition to something. This tendency can pose a problem even in democracies where people are generally satisfied with their political system. For Britain, the threat is greater still, because dissatisfaction with the EU can serve as a backdrop for all social, economic, and political ills. And as Bogdanor points out, that dissatisfaction can be traced back to a fundamental incompatibility between British and continental European political frameworks and social structures.

During most of the UK’s time in the EU, this fissure was papered over by growing prosperity. Nowadays, most British citizens forget that the UK was the “sick man of Europe” when it joined the EEC. Between then and the Brexit referendum, it went from being one of the poorest to one of the wealthiest member states (in terms of per capita GDP). But over the decades of membership, deceptive propaganda and opportunists like Johnson stoked a loathing of the EU.

Moreover, certain elements in both the Conservative and Labour Parties have long harbored hostility to the European project, albeit for very different reasons. Still, it took the collapse of those two parties for the virus of Euroskepticism to infect the bloodstream of the larger body politic. Each party has succumbed to its own Trotskyite insurgency – by real Trotskyites in the case of Labour, and by far-right nationalists in the case of the Tories.

Big-tent political parties are – or at least were – one of the guardrails of democracy, insofar as they set the terms of acceptable discourse and filtered out the more malevolent aspirants to political power. But the party system has now faltered, not just in the UK, but in much of the West. The US Republican Party now belongs to Donald Trump, just as Labour has become the party of Jeremy Corbyn, and the Conservatives the party of Johnson.

Runciman takes us beyond the immediate, however, to consider the fate of democracy more generally, as well as how we have reached this point. We are not at democracy’s demise, he thinks, but we are now beyond its middle age, with the horizon darkening as we glimpse its twilight years. The institutions on which we rely to “confront the political emptiness that we feel” are being “hollowed out” by the institutions and industries rising around them. Their long-term fate depends on how they react to this encroaching technocracy.

Robert H. Jackson, a former Associate Justice of the US Supreme Court and a prosecutor at the Nuremberg trials, famously wrote that a constitution is not a “suicide pact.” But in the UK – and in the US, if the Supreme Court continues to issue hyper-partisan rulings – the constitution may yet become a suicide vest, just waiting for someone mad enough to pull the cord. In Britain, he may just have arrived.

(Vernon Bogdanor, Beyond Brexit: Towards a British Constitution, Bloomsbury, London 2019 and David Runciman, How Democracy Ends, Profile Books, London 2018.)

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