Britain’s missing constitution

The UK in 2019 seems a country lurching from one crisis to another. Brexit is the obvious culprit. The 2016 referendum tore the country into two: no Prime Minister seems able to put it back together again. The glue that holds a country together, however, is complex. Part is the norms, culture and history that citizens share. Another part, however, is a country’s institutions, and the constitutional framework that regulates them. This framework is precisely designed to step in when all else fails. Britain’s crisis is so deep because this framework is falling apart.

Britain’s constitutional settlement rests on two simple pillars. The first – of far greater importance than in Germany – is the sovereignty of Parliament. The UK constitution puts great trust in the ability of Parliament to represent public opinion. The idea here is that, if one simply gives Parliament long enough, competing positions will eventually be heard and sensible policy solutions found. The second is the unwritten constitution – the set of implicit, yet habitually obeyed norms that regulate the relationships between public institutions. The norm that the Prime Minister should never ‘prorogue’ (or shut down) Parliament simply to avoid scrutiny is one such norm. This second pillar allows the first pillar to work (Parliament can hardly be sovereign, for example, if it is not open).

In the last month, both of these pillars have crumbled. Brexit has destroyed the traditional party system, fracturing the parties into new blocks and alliances (and making Parliament an unstable body with a majority for nothing and no-one). At the same time, unwritten norms can only work effectively if the actors subject to them have a shared understanding of what they mean and are willing to follow them in good faith. If this might have worked in a less polarized era, it has quickly melted in the face of a Prime Minister openly willing to bend any and all rules to achieve his goal of leaving the European Union ‘come what may’ by October 31^st.

Most liberal constitutions thus start from entirely the opposite premise as the UK. They assume that politicians are not to be trusted, and that they will bend the rules to their advantage if they can. As a result, the ‘rules of politics’ have to be set and enforced outside the political system itself (usually by Constitutional Courts). The UK starts from the opposite premise – that Parliamentarians, and indeed the government itself, are honest and patriotic individuals, who can be relied upon to enforce the rules of the political game themselves. To put it crudely, this is not a Constitution designed with Mr. Johnson in mind.

In this context, this week’s decision of the UK Supreme Court will be no less than an era defining decision of how it views the UK’s constitutional settlement (and its own role in upholding it). The stakes have been made clearer by competing rulings from the English and Scottish Courts. To follow the English ruling would be to leave the existing order un-disturbed. That decision essentially argued that the Queen carries the right to prorogue Parliament at will, relying exclusively on the advice of her Prime Minister in doing so. The form of that advice is a matter for the PM alone, beyond judicial control. If followed, the precedent would be clear: a PM in political difficulties would carry a new weapon – the ability to ask the monarch to close Parliament once again. This is no mere hypothetical. While Parliament has passed legislation trying to rule-out a no-deal exit, the PM has already signaled his intention to use any means necessary to avoid its implementation.

The Scottish ruling takes a different tack. It argues the PM carries constitutional duties too, namely that he or she must offer advice to the Queen in good faith. The Scottish judges were not alone in viewing with disbelief Mr. Johnson’s argument that Parliament was being closed for reasons entirely un-related to Brexit (namely to prepare the government’s policy programme). The Supreme Court therefore has an important choice to make – does it take the government at its word or does it find a new role for itself in scrutinizing the constitutional merit of the government’s actions. This would be no minor step. Following the Scottish ruling would move the UK Supreme Court far more towards the mainstream of European constitutional courts (who rarely accept the idea that political institutions sit above them in the constitutional hierarchy).

In this, the UK has a lot to learn from Germany. Germany’s constitutional founders would never have dreamed of giving the government the powers Mr. Johnson (an individual without an electoral mandate, or a parliamentary majority) now holds. Instead, important constitutional functions are given either to independent Courts or to the President – an office holder with the political legitimacy to take constitutional decisions (like whether the Bundestag should be dissolved). While the Queen is meant to hold this role in the UK system, her legitimacy rests on staying as far away from politics as possible. She is highly unlikely to interfere in the Brexit saga whichever course it now follows. Without a constitution proper, there is simply no hero outside of politics who can save the UK system from the quagmire in which it now finds itself.

While UK lawyers take pride in their unwritten Constitution and its endurance, Brexit has created a perfect storm – a toxic mix of dishonest office holders, unclear norms and hyper-partisan politics in which there is no guarantee the political system can work through its problems. The British people should hope the UK Supreme Court is brave enough to grasp the perilous condition the country is now in.

This opinion piece first appeared in Zeit Online (in German).