One of the strange things about the British Brexit turmoil is that it is scrambling the country’s unwritten constitution. A single clumsily designed referendum has set off a scary chain reaction. The cohesion of the United Kingdom might be at stake.
The latest sign of this unscripted revolution came from Scotland on Wednesday. There, the highest court ruled that Boris Johnson, the prime minister, acted illegally in suspending Parliament for five weeks. Judicial review of executive branch actions, common in the United States but unfamiliar in Britain, has become part of British politics. The case will now be appealed to the country’s Supreme Court.
Britain’s executive has also faced unprecedented challenges from the legislature. Normally, this doesn’t happen, because in a parliamentary system, the executive tends to enjoy a legislative majority — indeed, it is by commanding the loyalty of lawmakers that a leader gets to form a government. But Brexit has divided Britain’s main parties internally and given rise to new parties. Parliament is fractured and rebellious. Another American-style check and balance has become part of the system.
Checks and balances, plus ruptured party loyalties, have given rise to still another American phenomenon: the powerful unelected appointee. If prime ministers can’t trust fellow politicians, they will rely on special advisers who owe their jobs unambiguously to them. Theresa May, Johnson’s predecessor, was criticized for concentrating power too heavily in unelected confidants. Today, politics appears to revolve around the dark genius of adviser Dominic Cummings, Johnson’s Rasputin.
On good days, some of these constitutional developments seem welcome. The Brexit referendum, appallingly designed in that it invited people to vote “Leave” without specifying what Leave meant, divided the country almost evenly. Both the May government and (more egregiously) the Johnson government have wanted to escape the resulting confusion by ramming through a version of Brexit — some version, any version — without the support of the country. Parliament and the courts have so far prevented this. Britain has avoided an irrevocable step that would damage its economy and reduce its global influence.
But the biggest test will soon be on us. The country is heading for an election that Johnson appears determined to frame as “Parliament versus the people.” Never mind that Johnson himself hails from the heart of the establishment. Goaded on by Cummings, he will campaign as a populist anti-system radical.
This means that, at a minimum, Johnson will spend weeks assuring voters that the institutions of politics are rigged against them. The true voice of the people was expressed through the referendum, he will bluster; self-serving snobs in
Parliament are out to smother it. The legitimacy of the courts will be called into question. Just before its recent suspension, Parliament passed a law requiring Johnson to seek an extension to the Brexit deadline; the prime minister’s first reaction was that the law could be flouted. As soon as the Scottish court ruled against Parliament’s suspension
on Wednesday, an unnamed source from the Johnson team insinuated that a ruling in Scotland might be illegitimate.
Until now, Britain has been blessed by a faith in public institutions that allowed it to mix a vibrant private sector with a more or less effective state. The courts, Parliament and the impressively nonpartisan civil service have enjoyed popular deference; not coincidentally, Britain has a sharp tech sector, good public transport and universal health care. The coming Johnson campaign will do its best to degrade this precious social capital. Again, Britain will grow more like the United States, where years of political campaigns questioning the legitimacy and efficacy of government have generated cynicism and gridlock — a self-fulfilling prophesy.
Then there is the question of what happens after the election. One recent poll puts Johnson’s Conservatives at 30 percent, the opposition Labour Party at 29 percent, with an unusually high 40 percent spread around other parties. Another gives Johnson a lead over Labour of 32 percent to 23 percent. In Britain’s first-past-the-post elections, these numbers could translate into an overall majority for the Conservatives in Parliament, in which case, Johnson will get his wish to crash out of the European Union without a negotiated deal. A leader backed by just a third of the country could thus inflict a catastrophic shock upon his people. What might that do to the legitimacy of the British state?
Alternatively, Conservative support at around 30 percent might translate into more of the present confusion: a divided Parliament in which no party commands a majority. In this case, a wobbly coalition will lack the oomph to resolve the Brexit question. Business investment will continue to be anemic. The economy will languish. The electorate will seethe.
What makes this prospect especially alarming is that Britain’s unwritten constitution binds four nations that might decide to go their own ways. By raising the specter of a hard Irish border, Brexit has already destabilized Northern Ireland’s position in the union. By threatening the hardest possible break with Europe, Johnson will further alienate voters in Scotland who wanted to stay in. The legitimacy and decency of the Westminster system is the glue that keeps the United Kingdom united. It is under unprecedented strain.