The British constitution is a mixture of statute, conventions, judicial decisions and principles — some are written down, others are not. But many of the most fundamental and most complex areas are now part of the fight for who controls the future of Brexit.
Parliament returns Tuesday from a long summer break. Last week, the government announced that it had asked Queen Elizabeth II to “prorogue,” or suspend, Parliament for four or five weeks, with the suspension starting less than two weeks after members are due to return. The government argues it is simply employing what is a normal mechanism to end one parliamentary session and start a new one, thereby allowing themselves a Queen’s Speech, the traditional means by which prime ministers announce — in a speech given by the monarch in the Houses of Parliament but written by the government — their proposed policy and legislation for the new session.
The problem is that there are only two months until the deadline for Brexit, even if no deal is agreed about the terms or the future relationship between Britain and Europe. Much of Parliament seems opposed to leaving without a deal and had expected to have opportunities to try to force the government to seek yet another extension — the initial deadline was March 29. This suspension of Parliament dramatically reduces their chances, by leaving little time for any alternative proposals to pass.
Conservative rebels are expected to push new legislation to delay Brexit again, but Johnson has threatened that any Tory MPs who vote against the government will not be allowed to run on the party’s ticket in the next election. Johnson could even seek a snap election before the Oct. 31 deadline.
The battle has further damaged the British constitution and the way in which it is viewed. The fight over Johnson’s move has amplified the role of the courts in arbitrating on constitutional matters that had previously been left to politicians alone. The prorogation decision is being challenged in court, with the challenge centered on the advice that Johnson gave to the queen and whether it was legitimate. The courts have not usually gotten into such areas, and many legal experts are doubtful that the challenge will succeed. Either way, it strengthens calls for more of the British constitution, including the role of the queen, to be clarified or changed through legislation.
And so the unusual prorogation also threatens to undermine Britain’s system of constitutional monarchy. It is a fundamental principle in the uncodified constitution that the queen must not be dragged into politics and instead maintains a strictly impartial role. She personally has determinedly stuck to that position for much of her reign. She exercises many of her remaining powers as a figurehead, only carrying out the advice of her ministers — these are, in effect, the executive powers of the government. Her role, therefore, depends on ministers not abusing that power and not asking her to do things that are constitutionally controversial. The request to suspend Parliament was legally permissible, and it would have been highly controversial for her to refuse. But there are other possible scenarios in which she could be dragged into even more difficult choices and might have to go against her ministers. This is something that would have seemed unthinkable only months ago.
It is not inconceivable that events lead to a situation where the queen could be forced to ask Johnson to resign. It is another long-standing convention in U.K. politics that the prime minister must have the support, or “confidence,” of a majority of MPs; if that is lost, the prime minister should go. But those inside 10 Downing Street have implied time and again that if Johnson loses a vote of no confidence, he may refuse to resign, even if an alternative government of national unity can be formed. If MPs voted for the government to go and an alternative prime minister had the backing of a majority of MPs, then the queen might have no option but to dismiss Johnson against his wishes — something that has not occurred since 1834.
This week, MPs opposed to “no deal” will try to force the government to request an extension through legislation. Whether they can do so depends on winning a majority, including support from MPs on the government side, in a series of votes. These will be tight, and it will have to be a very speedy bill — possibly passed through its many stages in only one day in the House of Commons. Crucially, any new legislation by those opposed to a no-deal exit also depends on the upper chamber, the House of Lords, being able to quickly go through its examination and approval of such a bill. Extraordinarily, the government may find itself reliant on using the unelected chamber’s own procedures to delay and undermine legislation from the elected chamber.
The Johnson government is playing to a wider audience than just Parliament — out in the country, Johnson’s clarion call to take on all who might thwart Brexit could be much better received than among the MPs he is challenging. This could well be part of a wider strategy to position the Conservative Party for a sudden election. And it might prove successful — but in the process, the country will wind up with a very different view of the role of the constitution than when the referendum on Brexit was called.
Britain seems to be heading toward the mother of all constitutional crises. Perhaps it is showing flaws in the constitution that were long due for fixing. But rewriting a constitution in the middle of a major battle between the core institutions that lie at its heart is hazardous — as is trying to find solutions without long-term interests in mind. Regardless of the outcome of Brexit, Britain needs a much-overdue evaluation of how its constitution operates and what needs to change.