Constitutional Change Made Easy, UK Edition

As the UK electoral campaign closes, the news from across the pond no longer dwells on the parliamentary chaos that characterized the first few months of Boris Johnson’s prime ministership. Perhaps the December 12 election will provide a clear popular verdict on Brexit, and the country’s political life will now proceed in a more normal manner. But even if it does, we should reflect on recent events to see what they tell us about the weaknesses of the British model of constitutional government without anything that we Americans would recognize as a Constitution. Doing so should make us think very deeply before making changes to our own Constitution as many are now calling for.

The recent chaos resulted from two innovations that weren’t entirely consistent with the underlying principles of the British regime: the Fixed-term Parliament Act of 2011 (FTPA) and the Brexit referendum of 2015.  Both were introduced to solve short-term political problems.

As for the FTPA, it muddied the waters concerning the locus of the paramount power in the system on a day-to-day basis. Although the bedrock principle of British constitutional theory is the sovereignty of Parliament, as a practical matter the real power has resided in the government (the Prime Minister and the Cabinet) as long as it retained the confidence of Parliament.  If it lost that confidence,[1] it was expected to resign.

Although Parliament had the final say, the Prime Minister had an important countervailing power: he or she could, at any time, call a new election (often referred to as a “snap” election) by “advising” the Queen to use the royal prerogative to dissolve Parliament. Thus, a Prime Minister faced with the loss of a major vote could in turn threaten the MPs with the prospect of having to defend their seats in a new election.  Depending on their reading of the overall political situation, a sufficient number of MPs could well choose to avoid the uncertainty of a re-election campaign by supporting the government.

This is the basic parliamentary or “Westminster” system, about which students learn in comparative government classes. Its main advantage, as compared to the presidential system with which we are familiar in the United States, is that there can’t be an unproductive stand-off between the executive and legislative branches that makes it difficult – and, at times, impossible – for the government to function. A government with a majority can enact its program; if it can’t, it must make way for another government or a new election.

This system, with its mutual deterrence relationship between the PM and parliament, was upended, however, in 2011, with the passage of the FTPA. This act took away the power of the PM to call a snap election; general elections were to take place every five years, except in two particular circumstances: 1) if 2/3rds of Parliament agreed to hold a new election or 2) if Parliament explicitly voted no confidence in the government and no new government won a confidence vote within two weeks.

This reform was designed to facilitate the formation of the Conservative-Liberal Democrat coalition government following the 2010 elections; the objective, it would appear, was to assure the LibDems that PM David Cameron couldn’t call a snap election whenever he thought the Tories could gain a majority on their own. In other words, a transitory political requirement resulted in a fundamental change in the structure of the government, with potentially far-reaching consequences. The unintended consequence was that parliamentarians could thwart the PM’s most important policies without fearing that they might be made to face the electorate. This fundamental “constitutional” change enabled the deadlock of the past few months in which a PM who lost every major vote nevertheless remained in office.

The FTPA wasn’t, however, the only innovation that weakened the basic constitutional structure. The other was the use of referenda to address major issues. Calling a referendum can serve the immediate political needs of the government; typically, the government does so in the expectation that the popular vote will support its position. The government gains additional legitimacy for its policy, while also getting credit for giving its opponents a high-visibility platform to make their case. (It is important for Americans to understand that these referenda differ from what are called referenda in states such as California; in those cases, the public votes directly on the text of a proposed law; if the vote is in favor, the proposal is enacted without any action by the state legislature.)

When the popular vote does in fact support the status quo, no problem arises. This was the case with respect to previous referenda, such as the 1975 vote, which approved the UK’s remaining in the Common Market, and the 2011 vote, which supported the Conservatives against their LibDem allies by refusing to change the “first past the post” electoral system. In a 2014 referendum, Scottish voters rejected independence. Thus, in none of these cases did Parliament have to enact legislation in order to give effect to the popular will, and therefore the question of where sovereignty lay – in the referendum result or in Parliament – didn’t arise.

One could argue that the people were sovereign in either case, but what happens when their will as reflected in the referendum differs from their will as expressed by their parliamentary representatives?  The theoretical answer is that Parliament is authoritative, but it isn’t hard to see the difficulty of sustaining such a doctrine in a democratic society. Thus, the recourse to a referendum was a time-bomb within the system, one that, after lying dormant for several decades, went off spectacularly with the Brexit referendum in 2016.

The referendum was promised by Conservative PM David Cameron for electoral purposes in the 2015 election campaign; he wished to persuade Tory euroskeptics not to desert their party, safe in the expectation that the “remain” position would prevail. When, unexpectedly, the “leave” position won, Parliament was faced with the political requirement to enact a policy with which, it seems clear, a majority of its members did not agree. Hence, the deadlock in which Parliament voted to prevent a “no deal” Brexit while refusing to support the deal which PM Theresa May had negotiated with the EU. PM Boris Johnson may or may not have broken this deadlock when he won agreement in principle to the deal he negotiated with the EU; we can’t know whether the outgoing Parliament would actually have approved it for real.

When there is a deadlock between government and Parliament, the “school solution” is to dissolve Parliament and hold a new election. But Johnson was, for weeks, unable to implement this because of the FTPA. Throughout September and October, parliamentarians could thwart government policy without having to worry about facing the electorate. The media explained to the public that, because of the FTPA, a 2/3rds vote of the House of Commons was required to call a new election; this meant the support of a substantial number of Labour MPs would be necessary, and Labour’s leader, Jeremy Corbyn, wasn’t having it.

As it turns out, this wasn’t really accurate. After the primary political purpose of the deadlock was achieved – forcing Johnson to request a new Brexit delay – it turned out to be possible to call a new election by means of a new piece of legislation overriding, on a one-off basis, the FTPA provisions. By an odd turn of affairs, the new legislation passed the House of Commons with the votes of 438 MPs, i.e., more than 2/3rds of 650 total.

Having an unwritten constitution that can, in principle, be changed by a simple act of legislation certainly gives the British system a flexibility that is lacking in our own. But as these examples show, the very ease of making changes may lead politicians to make major systemic changes for tactical and transient reasons without considering the likely effects these changes will have on the functioning of the system as a whole, let alone trying to foresee possible unintended consequences. As more interest is expressed in the U.S. in making constitutional changes, for example, in the way the president is elected, we would do well to reflect on how a seemingly isolated change to one part of the system can have ramifications – sometimes serious ones – throughout it. At least we have the advantage that our written Constitution, with its complex amendment procedures, should lead to a longer, more broad-based, and, hopefully, more thorough consideration of any changes we might make.

[1] The loss of confidence could occur in one of two ways; either an act of Parliament declaring its lack of confidence in the government, or the defeat of a major bill that the government had designated as a “confidence vote.”