The Brexit challenge

10 Dec 2019

Brexit without a decent rule-book

I find myself surprisingly stuck on Brexit. The inconclusive struggles thus far cast a light in the dark corner of how the UK is governed, relying on a part-written, uncodified constitution. It does not seem fit for purpose now that the limits of the political system have been tested. This is a conclusion I had not expected to draw.



Brexit trundles on for another year and it is hard to stifle the yawns heard across the world. Meanwhile, the saga tells us something important about outdated constitutions and systems of government reliant on conventions and good sense.

Imagine an Aussie government re-casting the federal division of power and authority across the states following a 48-52 plebiscite, severe intra-party divisions and a Commonwealth parliament that had grabbed the initiative from a government without a majority. Now imagine pulling off something credible and lasting in that vortex. And now imagine doing so with a constitution that laid out about half the rules, even allowing for those that are routinely open to interpretation.

That is the magnitude of the Brexit challenge. It is little wonder it has stalled.

Two lessons apply here. First, no leader should attempt to deliver the borderline under-deliverable – obviously. Second, doing so without a constitution that is fit for purpose would be negligent – unforgivably. 

The structures of Britain’s constitution and politics are creaking and the rivets are starting to pop. You can see the warning lights beginning to blink: a national public inquiry is being mooted, recognition of the enormity of the crisis in policy and governance terms; the Cabinet Secretary has warned that party interests should not be confused with the national interests; a gaggle of ‘constitutional experts’ has advised against the monarch getting drawn into executive-legislative disputes; and a very-late stab at bipartisanship will make the governing and opposition parties splinter yet further.

Using old rope to tie together the rules of the game of politics was always chancy. The model boasted its inherent flexibility that would adapt to circumstances and serve the national interest. But getting out of a 45-year economic and political club could only be done incrementally over five years with agreed milestones.

Brexit is not a moment. It is a process, if anything.

A constitutional fault-line has been exposed in the existing – part-statutory and part-convention – arrangements that hold together the country’s politics. As different parts pull in different directions, there remains scope to bind the nations together through policies that spread decision-making powers and accountabilities. But the Good Friday Agreement and delivering a full-ish Brexit cannot be squared. Brexit also exposes the limits of party discipline as the basis of coherent executive government. Brexit, or the party system as we know it, not both.

It used to be said that wholesale constitutional reform was for enthusiasts only. That was code for fringe parties and a longish line of human rights/civil liberties lobbies. The Brits generally were assumed to be more set in their ways, comfortable with their Burkean attachment to their unique system of government, preferring to “chew the cud and [remain] silent”. With hundreds of thousands on the streets, national police chiefs warning of unrest and ideologically driven Brexit protagonists disappearing into hardened silos, it is time to rethink.

Some plausible scenarios could conceivably lead to the rivets breaking loose. The one that is whispered, for now, is that the turmoil and legacy of Brexit remains with us for a decade, by which time Queen Elizabeth II would have outlived her late mother. The pre-existing doubts that many have about the impending Succession might easily multiply three-fold. To some, that may sound alarmist and irresponsible. If so, consider that it was less than seven years ago that a Tory Attorney-General fought to prevent the full publication of the spider memos that the Heir to the throne had unwisely sent to serving ministers.

Another worry is the personal pressure on some of the senior personalities involved. The Prime Minister has soldiered on diligently for almost three years, and a replacement would mean the British public seeing three PMs installed in three years. That looks like a change too far, and frankly more Australian than British. The Opposition have their own worries, one of which is that their Leader cannot be moved on without igniting the bloodiest of civil wars. And even Mr Speaker can see that he is running out of room in his imaginative contortions with Erskine May.

But the biggest dysfunctions are in the workings of everyday conventions. The governing party has lost successive core policy votes in parliament and remains in office. Cabinet ministers have retained their posts despite voting against their own government. The executive’s control of the parliamentary timetable has been usurped by backbenchers set on taking the initiative. And the conventions surrounding how parliament goes about its business dip in and out of historic precedent with alarming frequency.

Comparable constitutional crises are there. Those in the US in 1974 and in Australia in 1975 stand out. The former centred on an ultimately failed attempt to usurp executive privilege. The latter involved fractious partisan politics being closed down by the dismissal of an unelected Crown representative . But neither crisis carried international treaty components or undoing decades of economic and political integration with neighbouring states. Britain really is on its own, out in the dark but worryingly without constitutional navigation tools that are working.

The evidence in front of us now suggests that a constitutional refresh moment cannot be far away. Unlikely though it may seem, to become governable once again the UK badly requires a new Constitutional Settlement.

Professor Shamit Saggar CBE FAcSS

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