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Brexit Triggers a Constitutional Crisis

B.A. Political Science, Member of®

The United Kingdom has one of the oldest continuous democratic systems in the World. The nation enjoys an unwritten constitution which defines rights, freedoms, duties, and rules about how their national institutions work. The British constitution consists of principles developed over hundreds of years from legislations, precedents, conventions, and customs. These legal principles and statutes found in the unwritten constitution date back to the 1215 Magna Carta which establishes the principle that everyone is subject to the rule of law. Nowadays, the nation is going through an unprecedented constitutional crisis due to the process of Brexit. The Johnson government shut down Parliament to avoid parliamentary scrutiny on Brexit. Besides, a Scottish court claims that Prime Minister Johnson misled the Queen when he advised her to prorogue Parliament. Besides, Brexit shows a struggle between parliamentary sovereignty and people`s sovereignty. Then, the new prime minister keeps social divisions made by the Brexit referendum. Also, the prime minister cannot get the support of the Commons and he cannot trigger elections because he ignores the will of Parliament. In addition, the Johnson government now leads the nation to new constitutional limits.

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                To begin with, British people are very proud of their unwritten constitution. British people perceive their democratic system as being mature and stable compared to some other liberal democracies. Besides, British people expect that their politicians have a good sense of fair play. The University of College London describes the British Constitution as follow: ¨What the Queen in Parliament enacts is law. This means that Parliament, using the power of the Crown, enacts law which no other body can challenge. Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. This is the ultimate lawmaking power vested in a democratically elected Parliament to create or abolish any law.¨ As a result, we expect that a prime minister respect the law and he has to comply with the will of Parliament. Nevertheless, Prime Minister Johnson refuses to delay the Brexit deadline which is Parliament`s request. As well, the executive branch works very hard to lead Britain to a No Deal Brexit while the legislative branch works very hard to prevent the government from doing that. Several experts consider that this is a full blown constitutional crisis which is seen as undemocratic.

                As result, Britain goes through a full blown constitutional crisis. Boris Johnson asked the Queen to suspend Parliament which was viewed as undemocratic by opposition parties. Still, On September 11th, 2019, A Scottish Court ruled that Johnson misled the Queen when advising her to prorogue Parliament. The prime minister told the Queen that prorogation is to make a Queen`s Speech, when in fact, Boris Johnson wants to have some time to make Brexit happen without any parliamentary burden. The Edinburgh court rules that “Accordingly the court will make an order declaring that the prime minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.”  The reason why Johnson suspended Parliament was because he did not want that Parliament interferes in his government`s affairs and Parliament could not hold his government to account. The British constitution prevents Parliament from being suspended if there is no good reason to do so. On the other hand, some Crown ministers strongly disagree with this court ruling. For instance, British Business Minister Kwasi Kwarteng had criticized this court ruling because he thinks judges might be biased about Brexit. Scottish First Minister, Nicola Sturgeon, defended the impartiality of the Scottish court which ruled on that matter. Nevertheless, the British Supreme Court will have the final say about prorogation because it is expected to make a ruling on that matter.

                Furthermore, the real purpose of prorogation was to avoid parliamentary scrutiny about Brexit. Parliament is entitled to scrutinize the government and Johnson cannot run away from being accountable to Westminster. The Financial Times describes this court ruling in early September 2019 as ¨undoubtedly damaging for the prime minister. It gives opposition politicians another opportunity to argue that Mr. Johnson has acted in haste in his first weeks in office and that he is driving the UK into a constitutional crisis in his pursuit of Brexit.¨ As a result, Boris Johnson really damages two key constitutional bodies which are: Parliament and the Queen. These institutions are sources of law and power for Britain and the prime minister should respect these two main constitutional bodies. Dominic Grieve, British MP, argues on BBC that ¨It`s absolutely essential to our constitution that the relationship between the prime minister and the Queen is one of the utmost confidentiality and the utmost good faith.¨ If Johnson misled the Queen, than the prime minister could be in trouble. In that case, Mr. Grieve says: ¨It would then be the moment for Mr. Johnson to resign.¨ Therefore, if the U.K. Supreme Court upholds the Scottish court ruling, than Boris Johnson might have no choice to resign because there would be a breach of trust between the prime minister and the monarch. As a result, he would have to meet Her Majesty and advise her to appoint another person as prime minister.

                Additionally, the rule of law should prevail, but the government seems to ignore the fundamentals of the British Constitution. Nevertheless, there is no convention or statute that the government and lawmakers can rely in order to deal with the process of Brexit. Luke McGee, a CNN journalist, describes well the constitutional crisis:¨Brexit has thrown up so many political abnormalities that with no precedent or written constitution to fall back on, the political class has started trying to make it up as it goes along.¨ Therefore, Brexit sets new rules for lawmakers and the government; No one can rely of case law to cope with Brexit. The prime minister tries to take advantage of this constitutional chaos by proroguing Parliament and refusing to comply with Parliament. In sum, Brexit is an untested area for the British constitution and this is not easy for law experts to understand how British Law applies to Brexit.

                Nevertheless, the constitutional crisis might not only be caused by Brexit. British historian Robert Tombs reveals in the New York Times in September 2019 that the 2011 Fixed Term Parliaments Act might be one of the causes of this constitutional crisis because the prime minister cannot trigger elections whenever he pleases. Mr. Tombs writes: ¨the Fixed-Term Parliaments Act…brought our system closer to the American one. Before that, a prime minister who lost control of the House of Commons could call a new general election, and so end the standoff. The Fixed-Term Parliament Act stopped that; a parliamentary term is now supposed to last for five years. To shorten it requires two-thirds of legislators to vote for a new election. And so Mr. Johnson’s government is trapped.¨ Therefore, Johnson who recently lost his majority government cannot do anything, he cannot call snap elections and he cannot enact new laws. Some experts think that Johnson could win back a majority government if elections were held now. As a result, a general elections could renew Johnson`s government and give more legitimacy to his No Deal Brexit.

                In addition, Brexit reveals a conflict between representative democracy and direct democracy. Representative democracy is about people electing representatives to exercise power on their behalf. These representatives forms governments and enact laws for the general good of the nation. Some people think that representative democracy is a kind of parliamentary dictatorship because elected officials do not have to consult the people during their terms in office. As a result, Brexit might be a good example of the will of the people versus the will of Parliament. Most politicians do not believe in the Brexit project while a majority of the people voted for the project. Therefore, direct democracy could be a source of conflict with MPs because Parliament does not want to lose some power. For that reason, British historian Robert Tombs says: ¨the Brexit referendum was the first time that the majority of the electorate tried to impose its will on the elite. The elite was and still is horrified.¨ Thus, there is a power struggle between the people and the elite which makes Brexit impossible to achieve. Thus, British democratic institutions are not able to settle Brexit. We are now witnessing a fight between parliamentary sovereignty versus people`s sovereignty.

                Finally, Brexit leads the nation to a constitutional crisis in which the prime minister is unable to get Parliament`s approval on anything. For instance, he can neither call a snap election nor implement his Brexit plan. As well, he was found guilty of misleading the Queen by a Scottish court. The prime minister told the Queen that he needed to suspend Parliament to have a Queen`s Speech, but he actually wants to avoid that Parliament scrutinizes his government. Prime Minister Johnson wants too much that Brexit happens, so he jeopardizes the unity of the nation and his government policies damage the U.K. constitution. Above and beyond, Boris Johnson forgets that his main duty is to protect the British constitution. Nevertheless, Johnson`s strategy is to show that he is in command of a people`s government while Parliament is supported by the elite. For that reason, we can expect that during the next elections, he will campaign as the people`s prime minister versus the elite. Johnson is convinced that Brexit is the right thing to do. Nevertheless, Johnson`s strategy and Brexit makes a constitution crisis and British law is not able to find answers into this legal chaos. In sum, Brexit cannot be achieved without damaging the legal framework of the United Kingdom.


September 14, 2019  

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Yannick B. Vallée
By Yannick B. Vallee

Yannick B. Vallee is a political scientist who recently graduated from Bishop’s University (Quebec, Canada) in the BA program of political science. He also has a college degree of Business Administration with a specialization in marketing. Nowadays,  he specializes in American, Canadian... (Read next)

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