Observations of an expat: British constitutional crossroads

It has become a current cliché that the British constitution is at a crossroads verging on crisis. .

The catalyst is Brexit. But the blind do or die pursuit of this goal has moved the debate beyond membership of the EU to endanger the values that underpin the foundations of British political life.

The British constitutional rule book appears to be up for grabs from the rule of the law to the role of the monarch, the principle of parliamentary sovereignty and the integrity of ministers.

The unwritten British constitution is a combination of legal precedents established by an independent judiciary interlaced with parliamentary conventions that stretch back 804 years to the Magna Carta. Prior to 1215 the law was a haphazard matter. The king ruled by the principle of vis et voluntas or “force of will;” which basically meant that he did what he wanted when he wanted. In the case of King John this included rape and murder which explains why the barons revolted.

Magna Carta established that there was a law and that the monarch was subject to it. It also provided a fledgling parliament with the power of the purse to insure that the monarch obeyed the law. If he wanted money for wars or ermine he had to go a begging to parliament. And, if he misbehaved the purse strings could be tightened.

Of course, successive monarchs found clever ways around parliament—until Charles I. His free-spending ways coincided with the start of the Age of Enlightenment and a challenge by parliament to the principle of the divine right of kings. The result was the English civil wars and the removal of the king’s head when Charles tried to prorogue parliament. Ironically, Oliver Cromwell, the leader of the parliamentary army, also found it impossible to work with the legislature and ended up dismissing it.

It was not until the 1689 Bill of Rights that that the principle of parliamentary sovereignty was established. Over the following centuries Britain evolved into a constitutional monarchy with an elected representative democracy led by a government which commands a majority in parliament and is accountable to parliament as a whole and—through direct elections—the people as a whole. If the government fails to command a majority in the House of Commons then it loses its mandate to govern. This structure is underwritten by a respect for the rule of law based on precedent and the assumption that the monarch’s ministers act with honour and integrity.

The monarch is the executive. Her powers are vested in a prime minister whose advice she is duty bound to accept. But the laws are made in the name of the Queen. The Queen therefore, relies on the integrity of her prime minister to provide honest advice in order prevent embarrassment or—in the worst case scenario—place her in the position where she would have to reject advice in order to protect the constitution. The Scottish Court of Sessions has ruled that Boris Johnson misled the Queen over the decision to prorogue the parliament. A major embarrassment for the crown.

Respect for the rule of law by the government is absolutely essential, not least because the laws are set by a majority in parliament which the government should represent. It is up to an independent judiciary to determine whether laws are broken and if they are, the punishment for breaking those laws. The prime minister is subject to those laws just as King John was. If Boris Johnson refuses to carry out the parliamentary instructions ruling out a No Deal Brexit than he will have broken the law. If the courts order him to obey the law and he refuses than he will be in contempt of court and a possible punishment is a prison sentence.

The argument in favour of riding roughshod over the constitution is that a narrow majority voted in favour of Brexit in 2016, and that ignoring the “will of the people” will inflict serious damage to British democracy. Conversely, accepting that any ends justify the means threatens to undermine the constitution and create a vacuum which could all too easily be filled by an unrepresentative populist government.

* ToTom Arms is the author of the Encyclopedia of the Cold War and is currently working on a major book on Anglo-American relations. He also broadcasts on foreign affairs for American radio and writes a regular column for US newspapers.

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10 Comments

  • nigel hunter 13th Sep '19 - 9:33am

    Johnson says he did not mislead the Queen. Correct cos HE did not see her ,it was Mogg with 2 other representatives. Disingenuous comments abound.
    Is the rule of law and our Constitution being exploited by those with power that do not agree with the EU Law on Overseas tax avoidance coming into law in January?

  • Laws are only laws if you enforce them. There seems to have been a feeling convention was law, but as they seem to be unenforceable conventions they are just hopes and pretty threadbare hopes at that. So much delusion about what we are, our values and laws being shredded by Brexit, perhaps it’s sole upside, forcing people to face reality (Although many amongst us are still mightily striving to turn back the tidal wave of reality, just take a look at poor Arlene’s Twitter feed for evidence of that). I will leave one of my favourite historical characters to pronounce the final word on laws that can’t be enforced
    Stop Quoting The Laws To Us. We Carry Swords. — Pompey The Great

  • @NigelHunter. Some of us have been pointing to the new tax laws as the principle reason for Brexit for sometime now. Newspaper owners and the Uber rich don’t want to pay tax and the EU is about to force the issue. That’s why Boris and co are desperate to be out before January!

  • Simon Horner 13th Sep '19 - 11:13am

    I dispute the assertion that Britain is a democracy. A voting system that effectively guarantees most votes will have no value in electing anyone is not democratic. The day after a British general election, the vast majority of voters can look at the result in their constituency and see that their trip to the polling station was a waste of time.

    I first realised this 45 years ago (after the February 1974 Election) and have always been perplexed by the fact that I am in such a tiny minority in holding this view. I think it must be because people confuse pluralism, which is strongly entrenched in the British psyche, with democracy. There is also the fact that elections sometimes lead to changes of government, which is a major advantage over totalitarian systems.

    I moved from the UK to Ireland recently, because of Brexit, and voted here in the recent European and local elections. Satiisfyingly, both of my ballots contributed to the election of someone. Next year, I’ll be voting for the Dail in the sure knowledge that I now live in a country that is not just pluralist, but democratic as well.

  • nvelope2003 13th Sep '19 - 2:54pm

    Is the Republic of Ireland ruled by the same clique of wealthy landlords, business people and those living on unearned income as the United Kingdom ? If not I can see why the Unionists are so desperate to hang on to the British connection, especially as they receive massive subsidies from the British taxpayers. What would they do if we asked them to form a Government by 31st March 2020 or risk losing those payments from the start of the financial year on 6th April 2020 ?
    I heard the DUP spokesman denying that they wanted any compromise over the backstop but they represent a minority of the people of Northern Ireland, though he did seem to indicate a wish for some deal, no doubt because business people there are desperate for one to save their businesses and that is what will decide the matter in the end.
    It might be interesting to look at the way Southern Ireland is governed to see if anything can be learned in order to reform the system in Britain which seems to be the root cause of our problems. Do the Liberal Democrats have the courage to have a go or are they basically part of the system as many people fear ?

  • John Marriott 14th Sep '19 - 8:23am

    A first step for Northern Ireland might be to get its assembly up and running again. They say it takes two to tango so why doesn’t the DUP give a little and allow the Irish language equal status with English? There used to be an old joke that went the rounds that said; “If they ever solved ‘the Irish Question’ they would just change the question”.

    Some of us on the big island just can’t get our heads around the way what denomination of Christian you are determines where you stand on so many issues, or, indeed, what your career prospects might be. It looks a bit like Shia and Sunni Muslims to me. I dare say that there are a few of us south of the border, who are getting a bit tired of some of those north of the border complaining about their lot – and no, David Raw, unlike Dr Taylor, I’m not referring to you!

    While on the subject of Northern Ireland, I just wish that Sinn Fein could see its way to allowing its MPs to take their places at Westminster at least while the Brexit dispute rages. Surely there ought to be a way round that oath of allegiance. Then we might get a more balanced view of what Ulster really thinks and wants. Perhaps the election of a few more Alliance MPs would help as well.

    We could go further back and speculate whether, had it happened, Home Rule, a Liberal Party idea I believe, largely derailed by Edward Carson and Co and WW1, might have created a United Ireland as part of an eventually Federal United Kingdom. Indeed, despite the conflict, it could be argued that, had the leaders of the 1916 Easter uprising been treated less harshly, the move towards republicanism and the ‘two Irelands’ solution following the bloody civil war might never have gained traction. I’m sure that the usual LDV historians will be anxious to tell me why I’m coming to the wrong conclusion.

    As for a Written Constitution, Reform of Parliament etc. bring ‘em on!

  • Sinn Fein did come over if you remember so they can vote.

  • Sinn Fein have made it clear that their objection is not just to the oath of allegiance, but to the entire notion of participating in a body which extends British rule over any part of the island of Ireland. You can disagree with this stance (as I do) but one can hardly say that it is inconsistent, and the Sinn Feiners have been elected with the full knowledge and approval by their electors of their abstentionist stance.

  • nvelope2003 15th Sep '19 - 9:26am

    John Marriott: The divisions in Northern Ireland are not fundamentally about religion but between the descendants of settlers from England, Wales and especially Scotland who were encouraged to settle in Ireland by the Government of Great Britain in the 17th Century for political reasons and the native Irish people whose land was taken by those settlers and have neither forgotten or forgiven. It just happened that the native Irish were Roman Catholics and the settlers were from the largely Protestant British mainland. The DUP represent the more determined British settlers and have made it clear that a majority vote in favour of uniting Northern Ireland with the South as provided for by the GFA would not necessarily result in that actually happening. Before 1914 the Unionists used the slogan Ulster will fight and Ulster will be right. They were strongly supported by the Conservative and Unionist party who were either actively involved or turned a blind eye to the arming of the British in Ireland. There are similarities with Conservative support for Brexit and opposition to the backstop but maybe the more rational Conservatives might be worried about having to rely on the DUP for a majority in the House of Commons. The old Unionist party were more in tune with the upper class English who are the backbone of Conservatism and did support the Conservatives before 1972.

    Maybe a solution to the Northern Ireland problem would be to make it a Crown Dependency like the Isle of Man or the Channel Islands who do not have representation in the UK Parliament but that could make the Irish even more militant.

    I presume that one of the reasons why Sinn Fein have refused to join a new NI Government is that they want to retain the support of the New or Continuing IRA people until they can win an election outright and appoint the First Minister from their own number in place of the DUP.

  • Peter Hirst 18th Sep '19 - 5:18pm

    Fair enough description, what’s missing is an understanding that the rules are too vague for our present democracy. Also the media and thus the electorate have become cynical about how it works. We need a complete overhaul so that the people feel more trusting, and are more involved in its workings.

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