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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.

Reader Discussion

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on December 26, 2018 at 11:11:34 am

This is a forthright and sometimes unsettling publication. I am so pleased to have it at hand to read, study, reject, accept, acknowledge options not obvious.

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Sara Winsor Johnson
on December 26, 2018 at 11:43:35 am

Lord Edward Coke (former Chief Justice) asserted late in Shakespear's time that both king and parliament are "under the law" and, specifically, bound by Magna Carta and its successors. The American Pioneers adopted that course in 1789. England, alas, did not. In theory, the British parliament of any particular moment can do anything except bind a future parliament. Accordingly, a referendum to tie parliaments' hands into the future should require the super-majority support of, at minimum, sixty percent. And a Supreme Court that interprets as it applies highest law resolving all "cases and controversies in law or equity" or something along these common-law lines .... Brexit requires a relaunch of parliamentary democracy in England. And perhaps elsewhere, too.

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Barnabas Johnson
on December 26, 2018 at 12:31:15 pm

"The Brexit fiasco underscores the difficulties of Britain’s unwritten, ramshackle Constitution that is based on custom rather than deliberation."

I'm really not clear what John McGinnis has in mind when he writes about a "ramshackle Constitution that is based on custom rather than deliberation." What is certainly true, however, is that Britain, or, more accurately, the UK, does NOT have an unwritten constitution. Rather, it does not have a written constitution. That may sound pedantic, but there is a crucial difference between having an unwritten constitution (has any state ever had an unwritten constitution?) and not having a written constitution (like the U.S.).

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Mark Brady
on December 26, 2018 at 12:59:58 pm

Well, the UK DOES have a written constitution, in that all (or almost all) of it is written down somewhere, just not all in one place. It might be more precise to say that the UK does not have a single, comprehensive constitutional document, but the enactments of Parliament are written down, judicial decisions are written down, earlier royal enactments (e.g., the Magna Carta) are written down. Those customary elements of the constitution that are nowhere written down must not indeed bulk very large.

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Geoffrey Harrison
on December 26, 2018 at 13:36:34 pm

I don't disagree with Geoffrey Johnson. To say that the UK does not have a written constitution, that means that it is not written down in one place (like the U.S. constitution).

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Mark Brady
on December 26, 2018 at 13:39:10 pm

Oops! That should be Geoffrey Harrison. My apologies!

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Mark Brady
on December 26, 2018 at 14:06:02 pm

One further comment on Prof. McGinnis's post. He seems implicitly to contrast the British parliamentary system, based on party opposition, with our congressional system, designed to encourage party cooperation, or at least to discourage party opposition (see Madison in the "Federalist." But, as the present American situation demonstrates, is our Congress any better formulated to encourage cooperation than the British Parliament?

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Geoffrey Harrison
on December 26, 2018 at 14:09:06 pm

P.S. Parties are, almost by definition, as Madison saw, oppositional.

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Geoffrey Harrison
on December 26, 2018 at 15:38:34 pm

John,

you have much of this right except the headline and the last half-sentence.

It's not the British Constitution that created the mess; it's the insane idea to put the decision to a 50:50 popular vote.

And there is no way to "better integrate the device [binding referenda] with the rest of the structure of [our] nation’s governance." The whole point of that structure is to exclude the people, in their collective capacity, from any direct agency. You may or may not want to break with that structure; but there's no "integrating" here.

I don't think we're actually disagreeing about much of this.

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Mike Greve
on December 26, 2018 at 17:58:01 pm

I think Professor Greve's got it right.
Don't see the Brexit referendum as a structural flaw of British Parliamentarianism and think adding the power of referenda to our constitution is an insane idea, using California as my negative model of how not to do anything. A people, like Californians, who democratically-select madmen to represent them cannot be trusted with direct control of governance.

The Brexit referendum seems a clumsy but necessary device for the Brits ( who agreed it was an error ab initio for the parliament to relinquish national sovereignty and enter the EU but who divided in basic ways over the terms of exit) to seek to correct the fundamental error of their government. A prenuptial agreement defining the rules and cost of divorce would have been best for the Brits, although the EU would not have allowed it. Hence the Brits should never have entered the EU and henceforth, no nation state should ever enter into binding obligations toward any such imperial government as the EU without obtaining up front a prenuptial agreement granting it the right of prompt, unconditional exit.

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Pukka Luftmensch
on December 26, 2018 at 18:29:17 pm

Agree with both Greve and Pukka:
1) It is the manifest *purpose* of the governing structure to EXCLUDE the poor buggery of the citizenry
and
2) contra McGinnis, while it is true that the Brexiteers may have had various reasons for leaving, what is clear from the Leavers, as well as with the (soon-to-be (hopefully)) Leavers from Poland, Hungary, Italy, France, etc is that none of these peoples wish to remain under the control of the new Imperium - the EU - and wish primarily to regain a sense of their own national identity.

And BTW: In our rather "UN-Parliamentary" system, we also are regaining a recognition of the need for national sovereignty.

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gabe
on December 28, 2018 at 11:45:06 am

In any system of representative democracy, the electorate are presumed to "deliberate" on who to send to the governmental body (Parliament, Congress, etc.) who will then do the deliberation about specific policies. The use of a referendum contravenes such a system -- the electorate now makes the decision.
But almost all policy decisions are not binary or yes-no, or either-or.
And, as a result, what appears to be the most democratic -- the "people" making a decision -- is almost always unworkable: it is at best a partial decision that is very likely unworkable.

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Robert Schadler
on December 29, 2018 at 14:46:24 pm

Asquith said all that needs to be said on this point in a speech at Hull. November 25, 1910: "The referendum would impair, if it did not entirely destroy, the sense of parliamentary responsibility. . . . It really would destroy the law of government by representation."

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D. A. Smith
on November 17, 2019 at 11:04:23 am

Here in Canada, Quebec tried twice to separate from Canada with no success. Even if one of those referendums had succeeded, it would still have been subject to the constitutional requirement of approval by 7/10 provinces with at least 50% of the population.

Brexit won because England and Wales voted mostly Leave, Scotland and Ireland voted mostly Remain. I wonder if the Brexit vote might have been more accepted had there been a requirement that all parts of GB had to vote either Remain or Leave with over 50% of the vote for either side to win, and not an overall vote for the entire GB.

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May Loo

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.