British Constitutional Crossroad

It has become a current cliché that the British constitution is at a crossroads verging on crisis.

The catalyst is Brexit. But the blind do or die pursuit of this goal has moved the debate beyond membership of the EU to endanger the values that underpin the foundations of British political life. 

The British constitutional rule book appears to be up for grabs from the rule of the law to the role of the monarch, the principle of parliamentary sovereignty and the integrity of ministers.

The unwritten British constitution is a combination of legal precedents established by an independent judiciary interlaced with parliamentary conventions that stretch back 804 years to the Magna Carta. Prior to 1215 the law was a haphazard matter. The king ruled by the principle of vis et voluntas or “force of will;” which basically meant that he did what he wanted when he wanted. In the case of King John this included rape and murder which explains why the barons revolted.  

Magna Carta established that there was a law and that the monarch was subject to it. It also provided a fledgling parliament with the power of the purse to insure that the monarch obeyed the law. If he wanted money for wars or ermine he had to go a begging to parliament.  And, if he misbehaved the purse strings could be tightened.

Of course, successive monarchs found clever ways around parliament—until Charles I. His free-spending ways coincided with the start of the Age of Enlightenment and a challenge by parliament to the principle of the divine right of kings. The result was the English civil wars and the removal of the king’s head when Charles tried to prorogue parliament. Ironically, Oliver Cromwell, the leader of the parliamentary army, also found it impossible to work with the legislature and ended up dismissing it.

It was not until the 1689 Bill of Rights that that the principle of parliamentary sovereignty was established. Over the following centuries Britain evolved into a constitutional monarchy with an elected representative democracy led by a government which commands a majority in parliament and is accountable to parliament as a whole and—through direct elections—the people as a whole. If the government fails to command a majority in the House of Commons then it loses its mandate to govern. This structure is underwritten by a respect for the rule of law based on precedent and the assumption that the monarch’s ministers act with honour and integrity.

The monarch is the executive. Her powers are vested in a prime minister whose advice she is duty bound to accept.  But the laws are made in the name of the Queen. The Queen therefore, relies on the integrity of her prime minister to provide honest advice in order prevent embarrassment or—in the worst case scenario—place her in the position where she would have to reject advice in order to protect the constitution. The Scottish Court of Sessions has ruled that Boris Johnson misled the Queen over the decision to prorogue the parliament.  A major embarrassment for the crown.

Respect for the rule of law by the government is absolutely essential, not least because the laws are set by a majority in parliament which the government should represent.  It is up to an independent judiciary to determine whether laws are broken and if they are, the punishment for breaking those laws. The prime minister is subject to those laws just as King John was. If Boris Johnson refuses to carry out the parliamentary instructions ruling out a No Deal Brexit than he will have broken the law. If the courts order him to obey the law and he refuses than he will be in contempt of court and a possible punishment is a prison sentence.

The argument in favour of riding roughshod over the constitution is that a narrow majority voted in favour of Brexit in 2016, and that ignoring the “will of the people” will inflict serious damage to British democracy.  Conversely, accepting that any ends justify the means threatens to undermine the constitution and create a vacuum which could all too easily be filled by an unrepresentative populist government.

Tom Arms is currently working on a book entitled “America: Made in Britain” which is due to be published in 2020.