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How the British Constitution Created the Brexit Mess

The debate over Brexit seems never ending. Here I consider not the merits of Brexit, but the structural problems in the British Constitution that has led our mother country to its impasse over implementing the program. The basic problem it is that is difficult, if not impossible, to combine a referendum over a concept with parliamentary supremacy, particularly when by tradition that parliament  operates on partisan division.

The question that the EU referendum put to the British people had asymmetrical outcomes. Voting to remain in the EU was a determinate outcome. Britain would just stay in the EU. It required parliament to do nothing at all. On the other hand, voting to leave the EU potentially encompassed a wide range of outcomes from a complete break with the EU to various new arrangements, including the kind of deal the government has now proposed and even closer connections, like that which Norway now enjoys with the EU. Voting to leave thus required parliament to take action that was indeterminate yet momentous.

And there is no reason to believe that the coalition that voted for Brexit would agree on the subsequent arrangement. Some citizens voted for Brexit to reduce immigration. Others wanted to prioritize trade around the world. Some wanted to recalibrate the relation with the EU. Others wanted to have as little to do with the European superstate as possible. That made getting a deal that would command majority, let alone the consensus support, of the British people impossible, particularly because Brexit won by only a bare majority.

And the problem is made worse by the structure of parliament. The popular majority for Brexit crossed party lines—as did the opposition. Conservative and Labour voters were on both sides of the issue, and even those in favor of Brexit favored different degrees of separation. That diffusion of support and opposition has made getting a parliamentary majority difficult, because many Conservatives would be inclined to rebel against the deal that does not meet their model of what future relations with the EU should be. And it is almost impossible to get an equal number of rebels from Labour, because the tradition in Britain is for the opposition to oppose the government on all issues in the hope of bringing it down.

This latter problem explains why Theresa May, the conservative Prime Minister, sought a general election in 2017, when polls suggested she would win by a landslide. Then she would have had the ample majority needed to survive the defections from her own side. But she was an inept and robotic campaigner and actually lost her majority, forcing her to rely on the Democratic Union Party of Northern Ireland, a sectarian party which had its own vision of Brexit. The only way forward after that defeat would have been to seek cross-party agreement, but in the British parliamentary system such agreement has proved almost impossible on major issues except in times of war.

The Brexit fiasco underscores the difficulties of Britain’s unwritten, ramshackle Constitution that is based on custom rather than deliberation. Referenda are a relatively new concept for modern democracy, and the British Constitution had no customs to address how to reconcile them with parliamentary government. Fortunately, our Constitution does not contemplate referenda and likely rules out such binding plebiscites. If they are to become part of our politics, we would have to amend the Constitution. The amendment process would force consideration of the problems that referenda would cause and better integrate the device with the rest of the structure of the nation’s governance.

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