As the Covid-19 crisis continues, the UK may be heading for one of the worst outcomes in terms of deaths across Europe. Criticism is rightly mounting of the UK government’s handling of the crisis, not least of the fatally lost weeks before lockdown on 23 March, and the inadequacy of testing capacity and of PPE supplies for the NHS, care workers and other front-line workers.
Yet the UK politics of this mis-managed crisis are curious. With health devolved, and considerable coordination taking place between England, Northern Ireland, Scotland and Wales, there has until now been rather little suggestion that any of the UK’s four nations could have taken a substantially different approach – albeit Nicola Sturgeon said last week Scotland might not take an identical approach on exiting from the lockdown.
But, so far, the growing criticism of the UK’s approach has been mostly targeted at the UK government, rather than asking whether the devolved administrations could and should have done something differently – and earlier – in the crucial early days of March (and also in February too).
Many Smaller European States Did Better
Impact so far has varied across the UK with its total of 16,060 deaths as of 19-20 April (a figure that mostly excludes care home deaths). England has been the worst hit by corona deaths, with 257 deaths per million of population, then Wales – 184 deaths per million, Scotland – 166 deaths per million, and Northern Ireland – 103 deaths per million. Many factors lie behind these differences (and much analysis will be done in the months ahead of that). London is and was, of course, a hotspot. And Scotland was a few days behind England in the spread of the virus. But overall the four nations of the UK were following the same, inadequate strategy.
In comparison, across Europe, countries are at different stages of dealing with the crisis – and have adopted different approaches not least different timings of lockdown, and different amounts of testing of their populations. But Scotland’s total of deaths so far does not compare well to many similarly-sized European states (with all the provisos about comparability of data and different stages of the spread of the corona virus).
Scotland, up to now, has fared worse than Ireland which has 124 deaths per million of population. More striking still are the Nordics: Norway has 31 and Finland 17 deaths per million, while Denmark has 61 per million (all as of 19-20 April). In fact, Scotland’s current position is similar to Sweden, with its less stringent approach to lockdown (and double Scotland’s population size), which has 156 deaths per million.
Clearly, other larger European states have been hit hard apart from the UK – Italy, Spain and France most notably while Germany with its different, high-testing strategy has a much lower 56 deaths per million. And some other smaller states have had high deaths too, notably Belgium with over 500 deaths per million – though this would come down by around half if only hospital deaths were included. But Greece – with twice Scotland’s population – has had just over a tenth of its deaths.
So different countries have had strikingly different experiences, so far, though all now face the very tricky, and vital, challenge of how to go about easing and exiting from lockdown to whatever the new normal will be. One of the striking aspects of the UK’s hesitation in the first half of March was the extent to which a range of organisations started to cancel events or initiate working from home policies – including events that were much smaller than the 500 person limit announced by Nicola Sturgeon on 12 March shortly before the UK government did the same. Civil society moved ahead of the politicians.
It is surely important to learn and understand some of the lessons from March now to inform Covid-19 strategy in the coming weeks. There may be several reasons why the Scottish government and other devolved administrations did not diverge noticeably from UK government strategy – despite health and education being devolved. Certainly, at first sight, it looks sensible to have a coherent, cohesive strategy across a state faced with such a public health crisis.
And the unprecedented economic damage of lockdown is one that the Scottish government may well not have wanted to trigger ahead of the UK, not least given that major economic bail-out policies do not, in the main, sit in devolved governments competence. Control of borders is not a devolved power either. But there could have been – but wasn’t – a public demand from the Scottish government for a two week earlier lockdown in early March; nor were any significantly faster actions taken at the time.
As criticism grows of the UK government’s decisions in March, it puts the Scottish government in a tricky position: they went along with those decisions, and did not criticise them at the time. Overarching responsibility may lie in London but the devolved administrations did not act as a pressure point for faster, earlier, more decisive actions. The Scottish government has been spared from much criticism in this context. This is, in part, as most focus has been on London but also as the Scottish Tories – while questioning some aspects of policy on care homes – won’t criticise a policy in line with the UK government, while SNP politicians will be loath to critique their own government.
Whether the UK government will manage an easing of the lockdown and management of the rolling corona crisis any better in the coming weeks and months is an open question. There appear to be splits in the cabinet over a more or less rapid route out of lockdown, with Boris Johnson, while still not back at work, apparently favouring a more cautious approach.
Nicola Sturgeon has said she will consider a differentiated approach to exiting the lockdown if that looks in Scotland’s best interests. Meanwhile, Scottish secretary Alister Jack has said the UK’s four nations must continue in lockstep. The lesson of the shifting politics of the crisis, so far, is that some differentiation could potentially be a plus (and would have been in March too). The tough challenges of managing testing and tracing, supplies of PPE, capacity of the NHS, and managing the extraordinary economic downturn need a clear and focused strategic approach. A pan-UK approach should not be a given for all elements of this – and indeed should not have been in March.
While yesterday’s Supreme
Court decision upholding parliamentary sovereignty was extremely welcome, it
should never have come to this. Our centuries-old unwritten constitution, based
on gentlemen’s agreements, is not fit for purpose when dangerous populists are
in office. Will the Attorney General therefore consider urgent proposals for a
written constitution, developed with real citizens’ engagement, since our
democracy belongs to all of us, not just those who think they are above the
I have a degree of sympathy
with what the hon. Lady says. I think that, as we depart the European Union,
there is ground for thinking again about our constitutional arrangements and
how they should be ordered. I think that, in doing so, a widespread public
consultation of the kind that she is describing would be essential, because any
new constitutional arrangements would have to be sanctioned by the widest
possible public support and assent, so I do have some sympathy. No doubt over
the coming months and years, this will be a subject of important concern to the
This House of Commons exchange, dating from 25 September, shows that, out of the divisive chaos of the Brexit-era United Kingdom (UK), a strange consensus has begun to form. Various politicians and commentators have begun voicing the idea that, not only is the UK political system functioning at a less than optimal level, but that it might be time to instigate an inclusive process leading to a ‘written’ constitution. This emerging perception presents both opportunities and risks. The following paper discusses how such a document might be brought about for the UK, and its possible contents.
Brexit has created uncertainty about numerous features of
the UK polity. It has broken the existing party system; compromised the
collective responsibility of Cabinet; undermined the relationship between the
executive and Parliament; destabilised the Union; and drawn the courts and the
monarchy into political controversy. At the root of this turmoil lies a tension
created by an exercise in direct democracy – the referendum of 23 June 2016 –
within the context of a representative system. For a period of more than three
years from this point, the insistence by the UK executive that it was a
custodian of an irresistible obligation to leave the European Union on whatever
basis it deemed appropriate and/or was able to obtain from the EU created a
series of constitutional convulsions. Even the most venerated of doctrines –
the sovereignty of Parliament – came under scrutiny, with those who purported
to be its fervent supporters in practice seeking to discard it in pursuit of
The unwritten UK constitution, supposedly a source and
manifestation of stability and continuity combined with a capacity for
incremental change, both allowed the Brexit episode to come about, and has
failed to facilitate a satisfactory response to it. It is becoming
tarnished, with a diminishing band of enthusiasts. Some still hold that the
flexibility and capacity for informal, incremental development that supposedly
characterises our ‘unwritten’ arrangements is an advantage over other ‘written’
constitutions, on the grounds that the UK has been able to avoid greater disruption.
How true such assertions have ever been is debatable. Viewed from the
perspective of controversy and conflict over the status of Ireland, for
instance, claims of a history of constitutional success become less plausible.
They are also difficult to apply to the present.
It is relatively easy to establish wide agreement that the
constitution is performing poorly, or even that it needs a major overhaul. But
views of what, precisely, the problems are, and what new arrangements might be
needed, are likely to vary. The first obstacle that must be overcome in any
project to instigate a written constitution is that, to succeed, it should rest
on the broadest consensus possible. Yet the present salience of this objective
has derived from an issue so divisive – Brexit – that it is likely to infect
any attempt to respond to it. In the exchange quoted at the head of this paper,
the Attorney General presented a written constitution as an entity that would
follow a departure from the EU, that was, from his perspective, a desirable
objective, though attaining it has involved some constitutional difficulties.
For others, the creation of such text would be a response to that disastrous
sequence of events. They might also see it as a means of ensuring close
alignment to the EU after departure, and perhaps providing a basis for re-entry
The particular motives of supporters of a written
constitution are likely to influence their view of its appropriate form and
content. Those who have found favour with the recent performance of the Supreme
Court, for instance, might wish to reinforce its role. Those who regard it as
having acted improperly might wish to diminish it, or subject it to greater
political influence. Indeed, whatever the precise intentions of the Attorney
General, it seems likely that a written constitution that fits with the general
outlook of the present government would be founded on principles that many longstanding
advocates of such a text would find objectionable. What provision, for
instance, might it make for justiciable human rights?
If a movement to establish a written constitution that
crossed the Brexit divide was attainable at all, it probably would not be a
worthwhile version of such a text; indeed, it might serve to lock in some
undesirable features. Nonetheless, it would be possible to build a diverse body
of support for a valuable written constitution, from the various groups that
Brexit has alienated. Indeed, as well as benefiting from their support, it
could help galvanise this potential coalition. Though it has lately made some
progress towards closer cooperation, more is necessarily. A commitment to a
written constitution could be an early and central plank in a shared programme.
But what should such a text comprise? When the idea of a
written constitution comes onto the agenda, many different interests will see
it as a means of entrenching their particular favoured measures. Up to a point,
it is necessary for diverse groups in society and politics to assess a document
as providing for their needs, if they are to be supportive of it. However, if
the task of drafting and securing agreement to the text is to be manageable and
delivered within a realistic timeframe, this pressure to extend beyond a core
set of measures should be firmly resisted. Adding a new item may attain
approval from its sponsors, but also creates the risk of alienating others, and
of diluting the overall document. When approaching the task of a written
constitution, there are two questions to ask. The first is: what aspects of the
political system are so important that the rules pertaining to them require a
special legal status reflecting their significance? Holding to this approach
should avoid the problem of inflation. The object of the exercise should not be
the drafting of a lengthy scroll, but of discerning and fixing the core
fundamentals. Having achieved this objective, the second question is: what precisely
should those rules be? In the following passages, I seek to answer both those
questions, by indicating a series of categories and approaches to take to them.
A task, the urgency of which recent events have
demonstrated, that a written constitution would need to perform would be to
define the functions of the UK executive and the limitations to which it is
subject. At present it operates in a range of important areas under authority
derived from the monarchy, rather than Parliament, using a constitutional power
source known as the Royal Prerogative. All governments, under any system, need
a degree of discretion – for instance in the conduct of diplomacy – but it
would be useful to establish more clearly what the powers are, and the extent
to and way in which Parliament and the courts can supervise them. Some
privileges that currently rest with the executive – including the ability to
prorogue and recall the legislature – clearly should not belong to it at all
and should be transferred to Parliament. Similarly, it should be made clear (if
it is not already) that the suspension of an Act of Parliament by executive
order is entirely prohibited. Furthermore, a written constitution should
exclude the possibility of ministers advising the monarch to withhold Royal
Assent from a bill that has passed through all its parliamentary stages. These
prohibitions address abuses that have either been perpetrated recently or about
which there has lately been speculation. There are no doubt other misuses to
which executive discretion might be put. For this reason it is important that
the whole of the Royal Prerogative is replaced with an arrangement more
satisfactory from the standpoint of democratic oversight.
The weaknesses of Parliament arising from its vulnerability
to the discretionary powers of government would to a significant extent be
resolved by the extinction of the Royal Prerogative set out above. Affirmative
parliamentary approval, for instance, could be made a requirement for treaties.
The legislature (or one of its chambers) could take responsibility for the
election of prime ministers, if necessary by preferential voting; and could
clearly remove a premier from office, without needing to trigger a procedure
that could lead to a General Election.
This latter provision leads to the question of how the
composition of Parliament is determined. The written constitution should
prescribe the electoral system used for the lower chamber. Not all such texts
internationally deal with this subject. But if the exercise discussed here is
truly to address the difficulties experienced by the UK political system at
present, it must replace the single member plurality (or so-called
First-Past-the-Post) system with a form of proportional representation, such as
Single Transferable Vote or the Additional Member System. The present method
employed for electing members of the House of Commons has had the effect lately
of offering the electorate as a whole a choice between two parties, both of
which have been seized by extremists. Even before they had full control of the
Conservative Party, a minority within its parliamentary cohort were successful
in foisting their Eurosceptic agenda upon it. Under a different system,
phenomena such as entryism and capture would have less salience. This reform
could also force the development of a more mature political culture which
emphasised negotiation and trade-off rather than zero-sum contestation. In
time, it could make the UK more able to participate constructively in organisations
such as the EU. The means by which the membership of the second chamber is
determined are discussed below.
Under the present system, significant responsibilities have
been devolved to Wales, Scotland and (to the extent that is institutions are
functioning) Northern Ireland, and to a lesser extent to parts of England. But
the ultimate legal authority remains at the centre; and the territories do not
have a direct role in decisions made on behalf of the UK as a whole. The
devolved executives and legislatures rely on arrangements such as the Joint
Ministerial Committee and the Sewel Convention, which fail to provide them with
a secure constitutional position. Though the Sewel rule has received statutory
recognition (through the Scotland Act 2016 and Wales Act 2017),
the Supreme Court has insisted that it is not justiciable. Therefore there is
no legal protection against the UK Parliament, if it chooses to do so,
legislating in ways that interfere with the devolved systems. This imbalance
could become particularly significant in a post-Brexit environment in which the
UK government sought to alter the regulatory framework of the UK, perhaps to
diverge from that of the EU, or align with a prospective trading partner. A
written constitution could introduce a firm legal requirement that any UK
legislation pertaining to devolved matters was subject to some kind of devolved
approval. It might also take steps to integrate the devolved legislatures
and/or executives into UK level governance. The most radical version of this
measure would be the replacement of the House of Lords with a federal second
chamber. The handling of England within such an arrangement would require close
attention. It is too large to be incorporated as a single entity into a federal
system without creating instability. The written constitution might create a
mechanism whereby regions within England could, if they chose, take on
self-government and be included within the federal chamber.
UK department from the EU will make the human rights of all
people living here – whether UK subjects or otherwise, since all are human – less
secure. The European Union Charter of Fundamental Rights, which provides
comprehensive protection – is the only aspect of European law that the European
Union (Withdrawal) Act 2018 does not seek to maintain in a post-EU domestic
legal order. Post-Brexit, the Human Rights Act 1998, which incorporates
the European Convention on Human Rights, will be the main means of upholding
rights. Those who have driven Brexit tend to be ill-disposed towards this
supranational mechanism also. It is likely to be next on their list. A
straightforward approach to human rights protection would be to transfer the
Charter into UK law and to make it, and the European Convention on Human Rights,
fully justiciable, up to the point that an Act of Parliament is void in as far
as it conflicts with their provisions. Over the past decade or so there has
been discussion of the idea of a ‘British Bill of Rights’ which modifies the
Convention to make it more acceptable to the UK. Even countenancing this idea
was to accept the premise that there was something wrong with the concept of
‘European’ and ‘human’ rights. Some have advocated it on the basis that it
might successfully mollify the reasonable concerns of people who were in
reality actively opposed to genuine rights protection. This project is doomed
to fail, in the same way and for the same reason that implicitly accepting
Eurosceptic narratives was. Ultimately it merely served to embolden the
opposition and strengthen its credibility. A preferable course of action, that
would avoid exercises in futility, would be to incorporate existing European
texts into a written constitution.
We have lately witnessed the vital role that the courts can
play in upholding constitutional standards. They have done so in the most
difficult of circumstances. Their integrity and decision-making have been
challenged publicly; and questions have been raised about whether they should
be playing such a prominent role, and whether different means of appointing
senior judges should be established. A written constitution could perform a
valuable role in addressing this undesirable circumstance. It could make clear
that it was entirely proper for the courts to be involved in matters of
political controversy, if they were justiciable. The text could define with
greater precision than currently exists what were the powers and scope of the
courts, discouraging them from exceeding their proper remit, and protecting
them from the charge that they were doing so. The written constitution would
also empower the courts to strike down all actions and legislation – including
Acts of Parliament – if finding them in violation of the provisions of the
text. This measure would be one of the most important features of a written
constitution, and would represent a firm break with the doctrine of
parliamentary sovereignty. In recent months, Parliament has at times appeared a
protective barrier against abuse by the executive. However, absent electoral reform,
at some point – possibly in the near future – a government will have a majority
in the House of Commons. If the executive is intent upon action that is
constitutionally problematic, the legislature might become a vehicle for,
rather than obstacle to, the attainment of its ambitions. In these
circumstances, courts able to carry out full constitutional review would be of
For a written constitution to be meaningful it requires some
form of enforcement, often judicial, as is suggested here. It must also be
protected from casual alteration. At present, the UK Parliament can change the
fundamental rules of the system through regular legislation. If a written
constitution were introduced that did not produce a clear break with this practice,
it would be vulnerable to alteration by a future Parliament in way that
rendered its supposed status as fundamental law meaningless. It must be
possible to change the constitution. Excessive rigidity is certainly to be
avoided. However, alterations to the most important rules of a political
community should require a higher than normal level of consensus. Within the
federal context discussed above, there might be a need for each of the
components of the UK – or at least a majority of them – to approve an amendment
to the constitution.
How might a written constitution be achieved? As suggested above, the political environment might seem lately to have become more receptive to this idea. But attaining the necessary combination of support for a constitution that met standards of good practice remains a difficult task. If those currently opposed to the present government – its approach to Brexit and its constitutional agenda – are unable to coalesce, they may find themselves in opposition for a protracted period. But whether they achieve the opportunity to reform the political system in the near feature, or at a more distant point, the appropriate approach to this task will be similar. The best way forward would be to establish a gathering of senior political figures of different parties and territories of the UK to agree some basic principles. It could then present them to a convention, including a randomly chosen group that was representative of the UK public. With access to expert evidence and with moderated input from the wider public, this body could consider the proposals it had received, and potentially add some items of its own to the agenda. It would then report back to the politicians. If they were content with the outcome, a constitutional text could be presented to the UK Parliament and devolved legislatures for simultaneous approval. A process of this type would be the best means both of resolving the problems of substance faced by the UK political system, and ensuring that solutions arrived at were both enforceable, and entrenched.
There was one fully justified Red Line buried amidst Theresa May’s long list of them: that no agreement is permissible that would draw a dividing line within the United Kingdom (see The meaning of Theresa May’s one legitimate Red Line). Drawing such a dividing line, she stated – and stated with a passion unusual to her – would be something that no UK Prime Minister could do, nor accept. One can see in this a thinly veiled meaning that to do such a thing would cross the line of disloyalty to the Realm, something no PM could legitimately do, as the safety of the Realm is always the first charge on HMG.
She was not consistent about this, to be sure. She meant by
this only a prohibition against actively drawing a line of separation, such as
a hard border line or customs line. She neglected to include a prohibition
against serious damage to the sentiment of Union, the foundation of the
continuity of the Realm. She was prohibiting only the most extremely damaging
deal, one that would include a direct action of dividing the Union that is the
United Kingdom; she ignored the fact that any Brexit would imperial the Union
by undermining its sentiment in both Scotland and Northern Ireland.
Johnson’s deal flagrantly breaches even May’s narrow Red
Line. He thereby breaches also Theresa May’s line between loyalty and
disloyalty to the United Kingdom.
The contradiction of Squaring the Circle; the consistency of a Common EU Context
The Johnson deal has Northern Ireland staying in the Single
Market while Great Britain leaves it. This line of division in the Deal is not
erased by its formal language about Northern Ireland staying in the UK Customs
Union de jure, since at the same time it keeps it within the EU Customs Union
de facto. That language simply renders both halves of the equation
self-contradictory. That is to say, it renders the denial of both lines of
division, on the North-South Irish border and in the Irish Sea, a false denial.
The border lines are real in both cases, the denial of the border lines unreal
Mr Barnier indicated as much, when announcing the deal: he
spoke of its contents on this issue as “squaring the circle”. These are words
that mean that it is inherently contradictory and not to be taken at face
More: it means that the patching up that it attempts on both
ends is superficial, and the promises of being alright for both sides is false.
It means that the reassurances for both the intra-Ireland border and the
intra-UK/Irish Sea border are prone to fall apart at any moment, and will be
unable to withstand the shocks they will inevitably run into in the real world.
The only way to get around needing to “square the circle” is
to cease pitting the square against the circle as the only games in town,
facing each other in solitude and requiring mutual adjustment. There is only
one way in turn to do this: to abandon the assumption that the square and the
circle must stand alone in separate customs orders, or else in a unique customs
order all by themselves, and instead keep both embedded within the same larger
customs order. In other words, it requires the UK to remain alongside both
Irelands inside the EU Customs Union.
Nothing less is required for the integrity of the UK.
Nothing less is required for Theresa May’s one legitimate Red Line.
This is why May’s deal did keep both entities inside the EU
Customs Union for an indefinite future. And why that future was to extend until
such time as it could be proven, if ever, that arrangements were in place
enabling the UK to leave the Customs Union without any hard border in Ireland.
To be sure, while this is necessary for the Union, it was
unlikely to be sufficient in the long run. What has proved sufficient is
membership in the EU for Britain and Ireland together.
That is why any form of Brexit undermines the sentiment for
the Union in Northern Ireland. The importance of the EU for the peace in
Northern Ireland is profound. There is a mediating value of being part of a
greater Union, one within which the English are not a hegemon as they are
within the British Isles alone. This is important in softening the tension
about Union for Scotland and Northern Ireland alike. For the latter, it is also
important for allowing the duality of identity, at once Irish and British, to
be accepted calmly. That duality was inherently problematic as long as the UK
remained alone with Ireland; the problem was manifested in the troubles. Once
both islands were in the EU, the duality of Norther Irish identity became far
The open border within Ireland is important not only in
itself, but as an indication that the duality of identity is no longer being
contested, constrained, or fought over. Catholics can identify with nationalist
Ireland and move about in it freely, yet remain UK citizens, and live alongside
Unionists who identify as Britons. Remove the mediating role of the EU, and the
Irish border turns into a sharp symbol of the identity issue. Harden the
border, even mildly, and the sharpness of the issue become potentially fatal
Conversely, harden the border in the Irish Sea, and the
identity of the Unionist community becomes troubled, their acceptance of the
existing order problematic. That is why Theresa May’s Red Line against any such
hardening was necessary, if not sufficient. Its less than complete sufficiency
does not detract from its necessity, rather it adds to it. The dangers of the
breach in the Red Line are increased, not lessened, by the fact that it
compounds a deeper identity issue.
Who will stand up for the Realm?
Theresa May has every right to denounce Johnson’s deal as an act of disloyalty to the United Kingdom. Indeed, MPs thought it remiss of her to fail to speak out against Johnson’s Deal, shouting on Saturday from the backbenches at her to rebel. They offered her an opportunity to save her soul. In refusing it, she confirmed our earlier diagnosis: that she suffered an unwillingness to take responsibility for making painful choices, and her Red Lines were dictated by her internal mental red line against taking the blame for the damage to the UK, rather than by a will to draw an adequate line against the damage itself (see Theresa May on the Couch).
Nigel Dodds, spokesperson of the DUP Parliamentary group,
recalled Theresa May’s words about the inviolability of the Red Line on the
integrity of the UK, and recalled that Mr Johnson had repeated her strong
words, which he is now traducing. Mr Dodds stood up for the former PM, at a
time when she would not stand up for herself. It remains for Theresa May to
find the courage to stand up at this time for herself and for the survival of
the United Kingdom.
Probably she will not. But perhaps Parliament itself will.
It clearly wants to. It is a question of whether it can sustain, in face of a
seemingly rogue Government in No. 10 and its ongoing campaign of intimidation,
the will to stand up for itself and for its country by uniquely autonomous,
innovative, and strict legislative means.
The Benn act was an important beginning in this regard.
Beyond it beckons a need for further follow-up steps along its lines. There
might be a need for measures that reduce the Government in several future
matters of Brexit to a legal courier between Parliament and the EU, so the
Government cannot act as an independent actor that could destroy the UK. This
might encompass tying down this or any Brexit deal to a confirmatory
referendum; tying it down also to fully complete implementing legislation,
securing an extension from the EU long enough for the referendum; and establishing
regular channels of direct communication with the EU.
The cloud over Northern Ireland, too, is not without its
silver lining. The DUP is being forced into a shock therapy. It is seeing for
the first time a profound reality: that Brexit is going to be its damnation,
not the salvation it dreamed it could be.
Brexit will not bring back a long-gone UK where the Unionist
community had the numbers and clout to dominate, and where England had the will
to rule. It will bring only a reduced England, spiraling inward in its
nationalism, while in Northern Ireland the Unionists will be left face to face
with an emerging Catholic majority.
Britain plus Ireland in the EU, with fully open borders in
both the Irish sea and across the isle of Eire, is the maximum salvation
feasible for the Unionist community. Any Brexit is its damnation; the question
is only the degree of damnation. May’s Brexit was recognized and denounced by
the DUP as a damnation; so is Johnson’s. While a full reversal of views is
unlikely all at once, it is possible that the shock is great enough to bring
the DUP to genuine wisdom in its policy; enough perhaps to support a second
referendum, that being the only face-saving way for it to save its community
Let us give credit where credit is due. If Johnson’s plan is defeated in Parliament and if a lengthy extension is obtained, he will have wasted only a few months’ time, dispelling in that time most of the illusions he and the hard Brexiters had fostered, and bequeathing an extension with a potentiality for bearing fruit. That compares favorably with May’s record of wasting three years and bequeathing a worse situation than she started with. If all the dangers and illusions of Brexit could be dispelled so quickly, the Brexit saga might yet come to a happy ending.
The prorogation is not an ordinary coup, but it is indeed a
part of a coup d’etat. It is not a quick-topple coup in the classic mold, but a
multi-year process, growing through cumulative phases into a coup far more
radical than the usual military take-over.
The coup grew out of the unanticipated consequences of the
referendum. Politicians felt compelled to stick to their lines about
implementing the results of the referendum, which were originally throw-away PR
lines as they expected the result that they supported anyway. This compulsion
— partly a political PR compulsion, partly as with Theresa May a psychological
compulsion — grew into an attack on the traditional British political norms:
deliberation, parliamentarism, and the most basic of all freedoms, the freedom
to think again. A series of red lines, or public mental blocks, was set forth.
Suppression of parliamentary deliberative norms grew month
by month. The PM came to pit “the people”, meaning the fraction of the people
who agreed with her, against the Parliament.
It was this practice, accompanied by an increasingly
demagogic anti-parliamentary language on the part of the PM and inherited by
the new PM, that was carried to a new level with the prorogation of Parliament.
It gave a punctuation mark to the coup.
Was this the punctuation point that we find in the theory of
“punctuated evolution”, one in which a gradual accumulation of specific changes
morphs, with a sudden jerk, into a change in the overall character of the
animal? Does it raise the prospect of undoing the British tradition?
It does raise this prospect, in two of the three major parts
of the tradition:
First part: Does it threaten the parliamentary
representative system of government? Probably not, although it has done harm
not easily reparable to the balance of the system, and even more harm to the
civility between factions.
Second part: Does it raise the prospect of undoing 800 years
of the evolution of the country from England to Britain to Great Britain to the
United Kingdom? Yes. The odds are worse than even for the survival of more than
the lesser Britain.
Third part: Does it raise the prospect of undoing the traditional moderation and progressing evolutionary course of the country? Yes. We can see this already in the two leading parties.
An internal rolling coup has been going on in both major
parties at the same time. Their extreme wings and outside related extremist
groups have been infiltrating, taking over, and expurgating each party of its
traditional views and leaders. This began before Brexit and helped motivate the
Brexit referendum, among Conservatives motivating the holding of the referendum
and among Labour motivating Mr Corbyn’s failure of campaigning for Remain. It
was in turn raised to a qualitatively higher level by the outcome of the
referendum and the subsequent Brexit processes.
Nevertheless the final outcome of the coup remains uncertain. It is in the hands of Parliament to decide whether it will acquiesce in its undermining, and in the undermining of the United Kingdom whose patrimony lies in its trust. It is aware of its other options, and of the need to act on the harder of them not just easier ones that risk failing. And it knows from the coup itself that it has only days, no longer months, to muster the will to act on them.
by Professor Sam Whimster Associate Director and Head of UK Futures Programme, Global Policy Institute
22nd July 2019
This is a commentary in response to the blog by our Senior Research Fellow Dr Andrew Blick: Brexit – By Royal Appointment?, published on 12th July 2019
Andrew Blick in “Brexit – By Royal Appointment?” provides a lucid insight into the mysteries of the British constitution as it relates to the monarch and the appointment of the Prime Minister. He notes a (probable) Johnson premiership from the outset could become untenable and this could place the Queen “in an uncomfortable position”. This could be stated more strongly: the Queen could be faced with the most difficult decision of her reign. While the newspapers just assume a seamless succession, the Queen must know that the outgoing prime minister, Theresa May, will be less than sincere in advising her that her successor can form a stable (?) government.
A major problem for public debate, indeed
public knowledge, is the lack of clarity on the constitutional rules governing
the role of the monarch. A certain romantic mystery has deliberately shrouded
the second “Elizabethan Age”, but under the unremitting glare of
Brexit politics this may prove to be inadequate.
The monarch is the Head of State and this
is obviously true in a ceremonial and symbolic sense. But is the monarch a head
of state in a political sense, in the
way that many advanced republics and constitutional monarchies have a head of
state? Heads of state are given discretionary powers, under a constitution, to
give assent or refuse a government coalition and aspects of its formation,
including personnel. Heads of state sometimes make comments about the tenor or
direction of governments – as happens in the Federal German Republic, for
example. At certain points then, every so often a head of state is forced to
intervene politically. The “understanding” of the UK’s monarch is
that she is above politics. But what happens when the tide of politics reaches
the threshold of “the Palace”? The monarch is in a double bind: not
acting politically could bring disrepute to the Palace (and the realm), yet at
the same time the monarch is above politics.
At the institutional level of Parliament,
the civil service, and the opaque nature of Councils of State and the monarch’s
office, everything is done to shield the monarch from any involvement in
politics. Yet Dr Blick outlines a number of very plausible scenarios where the
monarch would have convincing reasons not to give Royal Assent to a Johnson
government. Some have said that we have already been in this situation. In June
2017 Prime Minister May presented the Palace with the assurance that the
Conservative Party’s coalition with the DUP was a done deal. A
confidence-and-supply agreement was announced on 9 June and the Queen invited
Mrs May to form a government on 11 June. But considerable haggling took place after
the royal assent was given and before Northern Ireland’s future budget and the
final agreement was reached.
This in turn raises question about the role
of the civil service. In February 2010 the Cabinet Secretary published a
cabinet manual intended to remove ambiguity and uncertainty in the functioning
of the executive, especially the handover of governments. In particular it
would remove the Palace from any involvement in who to invite to form a new
government in the event of the predicted hung Parliament. In depoliticising the
Palace the rulebook placed the onus on political parties to reach coalition
agreements, quickly. Some thought at the time that the Coalition government
should have been given more time – it had 5 days – to discuss their political
arrangements, and this may have compromised the Liberal Democrats’ demands.
This last point is of course open to debate, as were the options facing the
outgoing prime minister. However, the Cabinet rulebook did ensure that the
Palace was kept above the fray. Did the Cabinet rulebook get deployed to the
same extent in July 2017 – to the extent that the Palace was seen to have behaved
impeccably? There is a suspicion that Mrs May duped the Palace. The political
role of a head of state remains, indeed it might be a desideratum if there was
a Palace rulebook.
I will switch the argument at this juncture
to legitimacy. There are quite a few in play. By legitimacy I mean the the
belief held by voting citizens in the legitimacy of those who exercise power
and authority. The legitimacy of government is based on party political
competition, universal franchise, general elections of MPs representing their
constituents, and parliamentary approval of the executive. This has been the
arrangement up to now.
In addition, Parliamentary leaders are these
days commoners. In claiming to possess a parliamentary majority, a would-be
prime minister can also draw on his or her electoral legitimacy – and not take
too kindly to any objections raised by the Palace. Blair and Thatcher are
recorded as being somewhat impatient with the niceties of the role of the
monarch as head of state. Likewise Mrs May herself probably felt fully
justified in June 2017 in giving an assurance to the Palace that she was able
to put together a majority in the House of Commons.
We also have the peculiarity that Johnson,
or Hunt, will become party leader on the choice of a miniscule electorate of
Conservative party members that is way out of line with the overall electorate.
Political parties are free associations and their specific rules are perfectly
legal. But the next Conservative party leader, if he becomes the next prime
minister, will be given a far harder time than Macmillan, Callaghan, or Gordon
Brown. He will face the charge of illegitimacy.
What is the legitimacy of the monarchy? In the
long run it is a form of charisma that has become routinised through
succession. Monarchy inherits the original charisma of kingship. And as
Hobsbawn argued the traditions and trappings of monarchy – the magic bit – are
also invented and reinvented. Overall, though, it is a charismatic inheritance
handed down and revitalised through coronation – and considerable effort went
into Elizabeth II’s coronation. Younger royals seem to be exchanging charisma
for celebrity culture, a recognition that inherited charisma has a fading
legitimacy in a time of popular culture and social media.
A third type of legitimacy is the “will
of the people” and populism. The will of the people must be obeyed by
parliament and here legitimacy of representative democracy is directly
challenged. A constitutional monarchy is part of the institutional architecture
of parliamentary democracy. Faced with a populist prime minister – if Johnson adopted a populist strategy as PM, or
Farage became PM – the monarch would be moulded into an Anglosphere figurehead
with no constitutional importance.
The present monarch almost certainly can
ride out quite a lot of upcoming and unavoidable turbulence. The next Prime
Minister may be only a two week wonder, and the Leader of the Opposition may be
called to form a government. This is part of the argy-bargy of parliamentary
politics. But there will be more damaging consequences if Johnson, or whoever, calls
a General Election and then claims an alliance with some other party which has
yet to be transacted; or, if an assurance is given to the Palace that
Parliament will not be shut down while a new Brexit deal is concluded. A Boris Johnson assurance may not command the
full confidence of the Palace.
The Queen’s legitimacy as a Head of State rests on being above politics, but this makes her vulnerable to challenger legitimacies and adventurers. Having a Palace rulebook on prime-ministerial succession should be considered with some urgency rather than trusting to the Palace’s fallible judgement and discretion. Charisma itself is infallible but is also conditional on success – as even Chinese emperors found out when geomancy failed to deliver.
by Dr Andrew Blick Senior Lecturer in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust
26th February 2019
It is an irony frequently remarked upon that the Brexit
process, though embarked upon partly in the name of the sovereignty of
Parliament, has seen this institution marginalised. Some of this exclusion from
meaningful involvement in Brexit has been self-imposed. Parliament approved
legislation, the European Union
(Referendum) Act 2015, providing for an open-ended question to be put to
the public which it subsequently accepted as producing a binding requirement,
in some form, to leave the EU. It then provided the Prime Minister, through the
European Union (Notification of
Withdrawal) Act 2017, with the statutory authority required to trigger
Article 50 of the Treaty on European Union, without attaching any conditions to
the exercise of this power. Parliament has subsequently proved more effective
at asserting that it should have power than actually exercising it. It has lately
been willing to reject options it finds undesirable, most dramatically the deal
secured by the UK government in negotiations with the EU. But even when
expressing negative views, parliamentarians have voted in the same direction
for different and opposing reasons. The imposition of a positive course of
action – a function that is surely the essence of a ‘sovereign’ body – has not
Is there a way out of the Brexit chaos, asks Iain Begg (LSE)? With still no solution in sight for Brexit, the time has come for a more imaginative approach, he writes. The UK’s politicians need to look beyond partisan positions and tactical manoeuvring to find a way of reconciling the many trade-offs – democratic as well as economic – around Brexit.
Instead of a focus on the national interest and how to meet the daunting challenges of maintaining faith in the democratic process, the debate on the end-game of the United Kingdom’s efforts to conclude a deal for its withdrawal from the European Union has been dominated by largely procedural matters. The talk has been of meaningful votes, confidence votes, the likely effects of obscure and incompatible amendments, the details of the Irish border backstop, transitions of fluctuating durations, facilitated customs arrangements and so on. Empty rhetoric on how ‘Brexit means Brexit’ and about the ‘settled will of the people’ adds to the confusion.
Now, the government has executed one of the most spectacular ‘u-turns’ of recent times by postponing a vote in the House of Commons, despite repeatedly saying it would not. By doing so, Prime Minister Theresa May has belatedly accepted what everyone has been telling for weeks: she could not win the vote for the deal she has secured from Brussels.
Yet as the latest episodes of the saga unfold, it has become increasingly clear that the UK political system has failed to comprehend the two fundamental questions it needs to answer. First, what sort of relationship does it want with the EU. Second, what is the mechanism for deciding, given the apparent inability of Parliament to muster a majority for any deal?
The shape of a future economic relationship between the UK and the EU has been under discussion since well before the 2016 referendum. Although there are many variants, four underlying models can be distinguished.
Remaining in the EU is the first, while the second is the UK being no different from the great majority of the EU’s other global partners inhaving either no privileged access or a trade deal that does not preclude similar deals with other parts of the world. For many advocates of Brexit, this was the choice posed in the referendum and, given the vote to leave, a full (or hard) Brexit should be the outcome.
The trouble with hard Brexit is that it creates obstacles to trading with the nearest neighbours and thus implies lower prosperity. The more sanguine Brexiteers believe any costs will be only short-term and the UK economy will soon benefit from new relationships with dynamic parts of the world, but the consensus is that there will be an economic price to pay forhard Brexit.
This is why two other models have come to the fore. The withdrawal deal May has, for now, opted not to put before the House of Commons included a short and non-binding political statement setting out the expectations of a new arrangement and including provisions for avoiding a hard border in Ireland, an aim all sides agree to be vital.
While it will require long and hard negotiations, the essence of the May deal for a future relationship is that the UK would no longer be part of the single market, delivering an end to free movement of EU workers, but would stay close to the customs union. The UK would also no longer be bound by the EU’s common policies on agriculture and fisheries. However, until mutually acceptable arrangements for the Irish border can be devised, the UK would have to accept a ‘backstop’, which could mean a border between Great Britain and Northern Ireland.
Latterly, objections to the May deal have seen a resurgence of interest in a model similar to the one Norway has with the EU. It would preclude more than token curbs on free movement of workers, require the UK to continue paying into the EU and would mean the UK having to conform to many EU rules it had little scope to influence. But it would mean relatively little economic disruption and costs. Some of those calling for the Norway model have the rather fanciful view that it could be an interim arrangement.
How to decide?
The binary choice in the referendum did not allow for the latter two options, both of which have been vilified as ‘BRINO’ – Brexit in name only – and it is worth recalling that May insisted shortly after becoming Prime Minister that there would be ‘no attempts to sort of stay in the EU through the back door’. But because they are adjudged to be less damaging for the British economy, they offer a potential compromise.
As a representative democracy, the ‘normal’ means of decision-making in the UK is through Parliament voting by simple majority on legislative proposals from the government. In the 2016 referendum, Parliament chose to delegate the decision to the people, but since then government ministers and party politicians have been unable to decide how to implement the result.
As things stand, there is no majority in the House of Commons for any of the four basic options. Tinkering with this or that detail, clarifying the exceptional circumstances in which the Irish backstop would be triggered or amplifying some of the vague promises in the political statement about the future UK-EU relationship will not alter this fact.
Procedural rules in Parliament further complicate matters, but breaking the deadlock will ultimately require the House of Commons to ‘take back control’ and to assemble, and legitimise, a majority for some way forward. It could be to establish a national government (a government of national unity seems implausible…) with a primary mandate of deciding what the country wants as the outcome.
Hard choices will be needed on some of the key elements of the relationship with the EU, such as free movement, the Irish border or the scope for trade and investment deals with other parts of the world. Parliament would then have to decide which of the four models best reconciles the tensions between the different priorities.
There would then be two options. Either Parliament would have to assert its constitutional right to decide and enact the required legislation, or it could revert to asking the people in a further referendum. Accusations of betraying democracy would abound and the national government would have to brace itself for waves of protest, but is there a credible alternative?
In this lecture our Director Brendan Donnelly takes stock of the Brexit negotiations. He argues that the painful progress of these negotiations is largely due to the fundamental weaknesses of the current British state about which Stephen Haseler wrote so eloquently. Prominent among these weaknesses are national exceptionalism, constitutional immobility and over-centralisation. Brexit is submitting the U.K.’s institutions to an existential test which they have no guarantee of surviving intact.
Professor Stephen Haseler (9 January 1942 – 20 July 2017) was the founding director of the Global Policy Institute and a Council Member of the Federal Trust until his death in 2017. In honour of his memory, the Federal Trust and the Global Policy Institute will host an annual Stephen Haseler Memorial Lecture. These annual lectures will focus on themes and issues that were close to Stephen’s heart.
Joint event by the Federal Trust and Global Policy Institute
Wednesday, 15th November 2017 17.30 – 19.30, followed by a reception
84 Moorgate London Metropolitan University London EC2M 6SQ
Launch and panel discussion of the late Stephen Haseler’s last book England Alone: Brexit and the Crisis of English Identity, which he completed shortly before his death in July.
The themes of England Alone as set out by Stephen Haseler are:
The Brexit referendum result represents the end product of a crisis of English identity and confidence that has been building for over a century as the UK lost its role as a world empire.
The Brexiteers live in a fantasy-land about our negotiating position and power in relation to the EU, and about the viability of a new ‘global role’. They have consistently overestimated the importance of the UK in the new global order.
Brexit – the final result of a century of this delusion of grandeur – will, as we leave the world’s largest Single Market, leave us much poorer. And, as separatism grows in Scotland and Northern Ireland, it will also de-stabilise the Westminster state itself, including the monarchy, as the UK breaks up.
So devastating was the EU referendum result that the existing Parliament, where there is an anti-Brexit majority, should, as an act of real as opposed to phoney patriotism, re-align the parties and reverse Brexit in order to stay in the EU.
Behind these four themes are four critical issues that were examined by the panel: Sovereignty, Citizenship, English Identity and English Futures.
Welcome & Introduction:
Professor Chris Dixon, Acting Director, Global Policy Institute
Chair:Brendan Donnelly, Director, The Federal Trust
On general principles of good governance yesterday’s decision of the Supreme Court must be welcomed. Most Parliamentarians are profoundly uneasy at the erratic course Mrs. May and her government have steered over the past six months in response to the ill-defined outcome of the advisory European referendum on 23rd June. It was politically convenient for Mrs. May to claim to believe that a modern version of the divine right of kings dispensed her from the obligation to involve Parliament in these matters. Happily, the Supreme Court has rejected such pretensions. Nevertheless, any pleasure at yesterday’s verdict must be tinged with disappointment that the Court needed to take such a decision in the first place. Continue reading The Supremes say “Stop in the name of Parliament”→