Britain’s Crisis Isn’t Constitutional. It’s Political.

In June 2016, the British people voted in a referendum to leave the European Union by 52 percent to 48 percent. Party leaders declared that they would abide by the outcome. In the 2017 general election, both major parties—the Conservatives and Labour—promised to implement the referendum decision, and in 2018, Parliament passed the European Union Withdrawal Act providing for Brexit on March 29, 2019. It still hasn’t happened though.

Remainers dominate Parliament—almost 75 percent of the House of Commons, 80 percent of the House of Lords, and a majority of the cabinet are Remainers. And that arithmetic is the source of Britain’s current political crisis: A Remain Parliament is confronting a Brexit electorate. A supposedly sovereign Parliament is being required to do something that it does not want to do. That is unprecedented in the country’s constitutional history, and it is why Takis Tridimas, a colleague of mine at King’s College London, suggested that the 2016 referendum was the most important constitutional event in Britain since the restoration of the monarchy in 1660.

After much difficulty, Prime Minister Theresa May succeeded in securing a deal with Brussels. That deal has two elements. The first is a withdrawal agreement that provides for a transition or implementation period until December 2020. That is an essential gateway to the final relationship to be negotiated with the EU. It is legally binding, and the European Council has confirmed that it cannot be renegotiated.

The second element is a political declaration. That, unlike the withdrawal agreement, is not legally binding but lays out a set of aspirations for the negotiators. It points the way to a bespoke free trade and internal market agreement in goods while allowing Britain to negotiate independent trade agreements with other countries.

The agreement is perhaps better than Britain had a right to expect. But it has aroused ferocious criticism both from Brexiteers, who argued that it tied Britain too closely to the European Union, and Remainers, who sought either a closer relationship or a further referendum so as to give the people second thoughts.

The House of Commons rejected the composite deal twice by some of the largest majorities in British parliamentary history, making it impossible for Parliament to meet the March 29 deadline for withdrawal. The EU then extended the exit date to May 22, just before the European Parliament elections—on the condition that the British government pass a withdrawal deal. But on Friday, the withdrawal agreement alone—severed from the political declaration—was rejected for a third time by 58 votes.

For most of Britain’s history, one defeat of that magnitude—let alone three—would be enough to bring down a government. Until 2011, any government defeated on a major policy matter would have had to treat it as a matter of confidence and either resign or seek a dissolution of Parliament. Theresa May could, therefore, have told members of Parliament that if they did not support her, they might face a far-left government led by Labour head Jeremy Corbyn. That might have brought them into line.

Prime Minister Edward Heath used that tactic in 1972 to secure passage of the European Communities Act, taking Britain into the European Community, as the EU then was known. By using a threat of dissolution, he brought rebel MPs into line and won the crucial vote by 309-301. But, in 2011, the Fixed-Term Parliaments Act required that a confidence motion could not be attached to any other legislation; it had to be a no-confidence vote and nothing more. Consequently, Britain’s current minority government remains in office but hobbled in its attempt to pass major legislation.

As May flounders, MPs have sought to take control by voting on a series of possible alternatives. That procedure is constitutionally dubious for two reasons. First, almost every alternative proposal has public expenditure implications. But the standing orders of the House of Commons require that, as in any parliamentary system, public spending can be authorized only by a minister responsible to Parliament, not by backbenchers.

Second, the EU can negotiate only with the government, not with a motley collection of backbenchers. And the government cannot be forced to negotiate an agreement that it does not itself support. If it were to do so, it could not be expected to negotiate with much enthusiasm. That is why Parliament has never in its history negotiated a treaty.

So far, the attempt by MPs to take control has not helped. Last week, the House of Commons rejected every single option presented to it. Its stance resembled that of Groucho Marx in the classic Marx Brothers film Horse Feathers, when Groucho, playing Professor Quincy Adams Wagstaff, tells his fellow academics: “I don’t know what they have to say/It makes no difference anyway/Whatever it is, I’m against it.”

MPs will vote again this week. The option most likely to achieve majority support is for Britain to remain in a customs union with the EU. But that idea has, so far, been dismissed as unacceptable by May’s government and the vast majority of Conservative MPs since it would prevent Britain from negotiating independent trade deals with other countries and make Brexit, in their view, pointless. Rather than agree to it, May might seek a general election. But even if Britain were to adopt the customs union option, she would still need a withdrawal agreement in order to achieve Brexit on May 22.

It is not clear what will happen next. It is possible that May’s thrice-defeated withdrawal agreement could be put to a vote yet again. But if it is not, or if it is again defeated, there are just two alternatives.

The first is for Britain to leave the EU without a deal. Although a majority of MPs are opposed to it, that is the legal default position, unless Parliament legislates to alter it, since the withdrawal act remains on the statute book. Even if one rejects the much-discussed terrifying scenarios of food and medicine shortages, there would be an immediate impact in that the EU would be required to treat Britain as it does all nonmember states by immediately imposing tariffs and regulations on British exports. Since Ireland remains a member of the EU, there would be a hard border on the island of Ireland, and this would contravene the spirit of the 1998 Good Friday Agreement, which has brought peace there. A no-deal Brexit, therefore, is not a happy prospect. It would force many hard-pressed companies into bankruptcy and unemployment.

The second alternative is to seek from the EU, by April 12, a longer extension to avoid a no-deal scenario. But the EU is not required to grant Britain’s request. It needs unanimous agreement from all 27 member states; any member state could veto it. They would certainly not be eager to grant a further extension since it would require Britain to participate in the European Parliament elections. The European Charter of Fundamental Rights gives every EU citizen the right to stand and vote in these elections; if May’s government sought to deny this right, it could be sued in the courts.

Were Britain to take part in the European Parliament elections, there might well be large gains for Nigel Farage’s new Brexit Party, fueled by voters frustrated with the failure of the Conservative government to deliver Brexit. In the 2014 European elections, two years before the Brexit referendum, the UK Independence Party, then led by Farage, won more votes than any other British party. Other member states, already plagued by their own populist parties, would hardly welcome the accession of a British contingent in addition to their own. They might decide they have had enough of British dithering and that no further extension is possible. And if the EU does grant a longer extension, it has declared that it will do so only if the government presents it with a viable alternative strategy. Presumably a request for an extension because Parliament cannot make up its mind would not count.

There are three possible strategies. The first is for Parliament to call a general election. “I fear that we are reaching the limits of this process in this House,” May declared on Friday, after her deal was defeated for the third time. But May can’t call an early election herself; that requires either a no-confidence vote in the government or a two-thirds vote by Parliament. In practice, if the government seeks an election, the opposition could hardly declare that it was opposed to one, and a two-thirds majority triggered an early election in 2017. But Conservative MPs are unlikely to vote for it today. In 2017, they were 20 percent ahead in the polls, but the party lost its overall majority resulting in the current hung Parliament. Currently, the Conservatives are trailing Labour in many polls or barely ahead.

Another general election is unlikely to break the deadlock because both parties are deeply divided. The Conservatives are divided between those who favor the prime minister’s agreement and those who favor a no-deal Brexit. The latter is particularly strongly represented among the constituency associations whose members would choose the next Tory leader after May’s resignation, which is likely to occur soon. Labour is divided between predominantly middle-class Remainers and predominantly working-class Leavers.

Furthermore, it is rarely possible to deduce from the outcome of a general election which issues determined the result. The parties might declare Europe to be the overriding issue. But Labour voters might choose to support the party not because of its European policy but because of concerns about austerity and the National Health Service. And Conservative voters might be voting out of fear of a Corbyn government rather than out of support for May’s Brexit policy. That is why it is so difficult to regard a general election as providing a specific mandate for any particular course of policy. Only a referendum can yield such a mandate.

A second strategy would be to hold a second Brexit referendum. But it would take Parliament some time to agree on the enabling legislation. The act providing for the 2016 referendum took seven months to draft and pass. It could take even longer today since there would be disputes about the options to be presented and about who should be entitled to vote. Meanwhile businesses would be in limbo, with investment plans on hold, and jobs at risk. And if a referendum led to a narrow Remain majority with a lower turnout than in 2016, which is a possible outcome, it would lack legitimacy.

A third strategy would be to remain in the EU, renegotiate the political declaration so as to achieve a softer form of Brexit with a closer relationship to the EU or even full membership of the customs union and internal market, and then, once again, seek to pass the withdrawal agreement—the essential gateway to the negotiation on the final relationship. But under this strategy, Britain could remain in the EU for a very long time, perhaps even forever, since, whatever the virtues of the EU, speedy negotiation is not one of them.

All of these strategies, therefore, put Brexit at risk. As Liam Fox, the pro-Brexit international trade secretary, predicted, the Tory hard-liners—by voting against the prime minister’s deal—may have succeeded in snatching defeat from the jaws of victory.

Some have suggested that Britain faces a constitutional crisis. It does not. It faces a political crisis because MPs will not follow through on the logic of their decisions. Having passed the EU Withdrawal Act, they have consistently rejected the means of implementing it—nor have they been willing to repeal it. So they have willed the end without willing the means. They are, as Winston Churchill characterized the governments of the 1930s, “decided only to be undecided, resolved to be irresolute, adamant for drift, solid for fluidity, all-powerful to be impotent.”