Brexit Is Destroying Britain’s Constitution

Whatever the outcome, Brexit has triggered an irreversible collapse of Britain's political, legal, and social order.

Prime Minister Theresa May s greeted by Britain's Queen Elizabeth II at a ceremonial welcome for King Willem-Alexander and Queen Maxima of the Netherlands in London on Oct. 23, 2018. (Matt Dunham/AFP/Getty Images)
Prime Minister Theresa May s greeted by Britain's Queen Elizabeth II at a ceremonial welcome for King Willem-Alexander and Queen Maxima of the Netherlands in London on Oct. 23, 2018. (Matt Dunham/AFP/Getty Images)

Two events last week changed the Brexit game. On Monday, the European Court of Justice ruled that the United Kingdom could unilaterally cancel its decision to leave the European Union before signing a withdrawal agreement. Then on Wednesday, Conservative members of parliament called a vote of no confidence in their leader Theresa May (who leads the party as well as being prime minister)—and lost. They only mustered 117 votes to unseat her, while she secured the backing of 200 Conservative MPs. According to Tory party rules, she now can’t be challenged for another year: Instead of deposing her, they’ve given her a year of magical leading.

The first development strengthened remainers, and the second gave the prime minister vital breathing space that could theoretically be used to advance their agenda. But despite the fervent hopes of remainers, nothing that happened last week makes an “exit from Brexit” more likely. Instead, Brexit compromises conceivably capable of bridging the country’s divides, such as the “Norway plus” option proposed by moderate Conservative MP Nick Boles, are now harder than ever to reach. Meanwhile, Britain is teetering more wildly than ever on the edge of an outright constitutional crisis.

Lacking a written constitution, Britain has always relied on what we might call “alternating majoritarianism” for political stability. One party gets in and is allowed free rein to do what it wants. The fact that the British public generally has taken a dim view of parties it considered too extreme has generally forced these supposedly all-powerful majority parties away from their members’ views and toward the political center. And under Britain’s first-past-the-post electoral system, centrist third parties face structural hurdles that prevent them from making headway.

That system is now broken. It relied on the big Conservative and Labour parties being able to win “working majorities” that limited MPs’ ability to rebel against their party lines. There’s no point in 10 or 15 MPs rebelling when a government has a majority of 50. All it achieves is to damage the rebels’ prospects of promotion. But that system has been fatally undermined from multiple directions.

First, the strength of the Scottish National Party has made working majorities a thing of the past. It made its breakthrough in 2015, after an independence referendum it lost, but at which it vastly exceeded expectations. Its geographical concentration allows it to win Westminster seats in Scotland, and without Scottish seats it’s almost impossible for the two big England-based parties to win a working majority.

Without a working majority, party leaders must pay attention to their hard-liners, or, as some Conservative Party members have been known to call them, “swivel-eyed loons.” The loons forced David Cameron to offer a referendum on Britain’s EU membership, which he, as everyone knows, narrowly lost. Normally, Britain’s flexible political system could accommodate one party’s indulgence of extremism: if the Conservatives found themselves advocating something radical such as leaving the EU, this would typically open up space in the center for Labour to position itself as the defender of economically pragmatic close relations with it. However, Labour is currently led by the far-left and anti-European Jeremy Corbyn, keen to facilitate Brexit and take advantage of the economic chaos to implement a radical socialist agenda.

Superimposed on these new, more polarized parties are the new, essentially sectarian political identities created by the Brexit referendum itself. Leavers and remainers move in different social circles and have different understandings of the central facts of Brexit. Though there are still pragmatists in the center, political careers are now made by appealing to the tribes’ core beliefs. Thus Foreign Secretary Jeremy Hunt, a remainer in 2016, has now declared himself unafraid of the harshest, “no deal” Brexit, while former Education Secretary Justine Greening has been working on bringing about a new referendum since Theresa May sacked her in the summer.

This is the context in which to understand the rampant reports of conspiratorial plots within the cabinet: remainers plotting a new referendum (and seeking legal advice on whether Britain’s decision to leave could be revoked by executive action, without consulting Parliament) and anti-Europeans threatening to resign from the government, reject the withdrawal agreement Theresa May negotiated with the EU, and leave without any sort of deal at all. (The Bank of England estimated that such a “disorderly” Brexit would cause unemployment to almost double, inflation to rise to more than 6 percent, house prices to fall by 30 percent, and the pound to fall below parity with the euro.)

Britain’s constitutional crisis running in parallel to its Brexit debate has made it much harder for any of these plots to come to fruition. There is no majority for any policy at all in Parliament. Whereas cabinet resignations were once accompanied by the prospect of the resigned minister and her entourage joining the leader’s opponents in a vote of no confidence, May’s year of immunity  has closed off that option; resignation will just produce ex-cabinet ministers, fuming on the back benches without a ministerial car and salary.

The true limits of their power now revealed, no-deal Brexiteers are now contemplating a legislative strike, which would deprive the government of its majority for everything except confidence votes, or even forming a new hard-right party. That would allow them to vote against the government in a confidence vote and provoke an election. The effect of a new party would, however, be to split the anti-Labour vote and give Jeremy Corbyn a good chance of entering Downing Street.

But nor is there any easy path to a second referendum, as remainers hope. If nothing changes, Britain will leave the EU on March 29, 2019. Holding a referendum requires an Act of Parliament, and thus continuous control of the legislative timetable to avoid a filibuster. In practice, that too requires a change of government, as well as for the EU to grant an extension to the Article 50 negotiating period to allow one to take place. Even if remainers managed to get this far, referendum proposals would be accompanied by intense and polarizing debates about the referendum question (or questions—a two-stage referendum has been suggested), the franchise (one prominent anti-Brexit group wants to give EU citizens in the U.K. and British citizens in the EU the right to vote in it), the regulation of political spending, and the conduct of a campaign. Extreme Brexiteers have already begun civil disobedience, though their competence leaves something to be desired.

The only certainty is that Britain’s political rewards now go to men and women who promote polarization, not compromise. And because the country is divided in two almost exactly equal halves, neither side can win decisively. Just as remainers have not accepted the legitimacy of the 2016 referendum, leavers won’t accept the legitimacy of a plebiscite held in 2019. Expect divisions to deepen and radicalization to progress further. David Cameron’s decision to hold this referendum about a question so fundamental to Britain’s national identity opened up this chasm in the country.

It will remain unsealable until the baby-boom generation is no longer with us. This group, who grew up in the glow of the Allies’ victory in World War II but who missed out on the bloody fighting itself, is disproportionately pro-Brexit. The relatively few old enough to remember the war are considerably more likely to oppose leaving the EU. Meanwhile the young now identify as pro-European in a way that would never have occurred to them before the 2016 vote. The weight of their increasing numbers will eventually tell. Yet the boomers’ demographic albatross will press further still if, as is in my view probable, English political chaos stimulates Scotland to choose independence and (though this is less likely) Northern Ireland to unite with the Irish Republic. Losing those two pro-EU territories would allow Brexiteers to keep up the fight for perhaps another five or 10 years longer than they otherwise could.

A decade of intense political conflict is a grim prospect for a country with few formal institutions and weak legal oversight of the political process. The desire to seize positions of power and hold them against equally matched enemies is more associated with countries on the descent toward civil war than mature liberal democracies like the United Kingdom. A different American government would make the resolution of conflict in one of its most important allies a major foreign-policy priority. It only compounds Britain’s misfortune that the Trump administration has neither the attention nor inclination nor ability to get involved.

Garvan Walshe is a former national and international security policy advisor to the British Conservative Party and the Executive Director of TRD Policy.

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