‘The will of the people’: astonishing what a single phrase can do. By virtue of this phrase, the British constitutional order has been overturned, longstanding norms and conventions dismissed simply because it is the desire of ‘the people’. As we inch closer to another Brexit deadline, those pursuing an ever-harder Brexit are willing to throw the most integral parts of our constitution overboard, even to the point of stopping democratic dialogue altogether. Whilst Britain may hobble to the finish line with its democratic credentials still, just about, intact, the process may have left its position as a liberal democracy teetering on the precipice.
The British constitution is heavily dependent on the ‘good chap’ theory of government. Whilst most constitutions contain explicit provisions and guidelines, binding even the most unscrupulous governments to a set procedural course, the British constitution tends towards opacity. Governments are not bound by rules per se, but instead, a curious mix of norms, conventions and obligations, tied together by a sense of decency and fair play.
This system has probably been able to survive for so long because of the utilitarian rationale that has underpinned British democracy. Even after the expansion to universal suffrage, the dominance of the two party system meant that the game was being played by two sides who knew the rules, and wanted to keep to them as they were. Any violation by one side could lead to its exploitation by the other, with the electorate’s fickle tendencies keeping both parties on their toes. From a purely rational perspective, breaking the rules simply wasn’t worth the risk.
This fear, however, was dependent on the knowledge that the support of the people is fleeting. Whilst both sides knew they had a hard core of reliable support, the balance of power was held by the floating voters. It is the departure of this part of the electorate from the field that has allowed those pursuing Brexit to do so with growing disdain for the normal rules and conventions that have bound political conduct. Having successfully refashioned British political discourse in the image of American partisanship, they aspire only to retain the support of their base, counting on the intensity and passion of die-hard believers to prevail over the passivity of the majority of the electorate.
The Brexiters first learnt that conventions could be broken, to little risk, during the referendum campaign. Lying with impunity throughout the referendum campaign, deceiving the public over the economic windfall that the UK would receive after leaving, or over the risks of countries like Turkey becoming full members of the EU, normalised outright lies within our discourse, whilst simultaneously diminishing the voices of genuine experts who voiced doubt at such populist rhetoric. And, having won the referendum in clear violation of the normal rules of engagement, there has been little to stop them continuing on that path.
From the toleration of minor violations from this, the Brexiters, aided and abetted by Theresa May, have gleefully set aflame the boundaries that had held in check decades of political conduct. Ministers were free to lie to parliament, yet continue in post, and collective cabinet responsibility was effectively abandoned, government ministers on all sides of the debate wantonly discussing alternative policies or courses of action.
Meanwhile, May’s government decided to withdraw votes it thought it might lose at the last moment, and refused to disclose information to parliament, to the point at which it was the first in history to be held in contempt of Parliament. Alongside all of this, May felt free to bribe another party into propping up her administration, whilst the Conservatives stacked parliamentary committees as though they had an absolute majority, ignoring the reality that they were merely the largest party in a hung parliament.
As a consequence, we are now at the point at which the conventions that literally unify the United Kingdom have become unfortunate, but necessary, sacrifices, rather than constitutional aberrations. The opinion of Scotland, collectively aghast at the extremist policies of the Westminster government, has been disregarded, as though it was a mere colony rather than a constituent nation. Even though the Sewell Convention, a convention the courts have implicitly acknowledged is being violated, requires the British government to consult and gain the approval of the Scottish government, Nicola Sturgeon is treated more as a horsefly to be swatted than the leader of a state.
Similarly, the Good Friday Agreement, which the UK is bound to follow under international law, has been thrown under the bus. Any voicing of fears of the Troubles resuming – a conflict that is within living memory of much of the nation – is dismissed as fear-mongering, with Northern Ireland instead rewarded with a minister unaware of the nationalist and unionist divide.
Ordinarily, such extensive violations would be held in check either by moderate members of the government’s party, or by Her Majesty’s Opposition. But much as the referendum result has acted a stimulus to the Brexiters, it has sedated the moderates, most of who have become too fearful of drawing the ire of the extremist faction of their party, both within parliament and amongst their party base. Other than the few courageous souls who have left the Conservative party, or who remain within it, but speak their mind, like Clarke, Grieve or Stewart, most Conservative MPs remain silent. Facing the risk of deselection or the loss of ministerial perks, MPs and ministers prefer to swallow seemingly endless hypocrisies rather than defend democratic norms.
Couple this with the failure of the Labour party to elect a leader their MPs view as a genuine prospect for No. 10, and the adversarial system that underpins our parliament is made hollow. If Jeremy Corbyn was viewed with anything other than disdain and suspicion by many of his MPs, as well as the other opposition parties, he would be today taking up residence in No. 10. Instead, he has shackled the opposition, making them fight a boxing match with both hands tied behind their back, unable land the knockout blow.
It may be then, that it is the failure of this convention that is most culpable for the country reaching this state. A genuine statesman, offering more than the populist rhetoric proffered by Corbyn, would have formed a liberal coalition long before we reached this cliff-edge. Despite even his sudden transformation into Cicero at PMQs earlier this week, a majority of opposition (and conservative) MPs will be unable to set aside their deep-rooted scepticism that he would dismantle the British economy and shift our international allegiances to support some of the most dubious actors on the world stage. This means that a prime minister with no majority is still free to try and ride roughshod over parliament, as though he’s a divine monarch rather than a deceitful cad.
We have arrived at a position where the prime minister can dissolve parliament against its wishes, and claim that he does so with democratic legitimacy. However, unlike when May tried to activate Article 50 without parliamentary consent, it’s not clear that the courts have as easy a route to stopping Johnson’s autocratic tendencies, as this week’s failure in the Scottish courts shows us.
Instead, we may be left with a prime minister who knows that, in the face of an obstreperous parliament, he can simply send it away. What will stop him from doing it again?