Brexit Part IVa) A Constitutional Crisis
When Britain awoke on June 26th, 2016 to find that the Leave campaign had won, perhaps no one was more surprised than Leave voters themselves. Many had seen the referendum as a chance to stick it to the all-powerful establishment — to suffer a noble defeat but to go down as martyrs, defiant in a blaze of patriotic glory. Once they found that they instead had a victory on their hands, they were quite unsure what to do with it. Farage at least kept the torch burning for a little while. As the results came in he declared June 23rd to be Britain’s “Independence Day” (because of course he did) and then dashed off to Brussels with glee to bask in the greatest I-told-you-so moment of his life:
Isn’t it funny? When I came here 17 years ago, and I said that I wanted to lead a campaign to get Britain to leave the European Union, you all laughed at me. Well I have to say, you’re not laughing now are you?
With over a decade of toil behind him, Farage finally had his moment in the sun and you better believe he was going to relish it. After that performance, however, Farage sort of just slipped away — at a time, arguably, when his followers needed him most. He had won the war, but Farage wasn’t the type of man who was interested in securing the peace. He resigned as leader of UKIP and set off to America for another battle — this time helping Donald Trump hone his debating skills for the coming showdown with Hillary Clinton.
The Prime Minister, for his part, found himself a sitting duck. David Cameron had rolled the dice in calling this referendum as a desperate way to save his own party and, by extension, his own job. Now it had all horribly backfired and he looked like a fool. Surveying the turmoil, Cameron was at least smart enough to know to get out of there before people started dishing out blame. He resigned the day after the referendum, while the final votes were still being counted, and fled to the countryside, where he promptly barricaded himself in a shed for the next three years to write his memoirs. The country had just taken its most momentous and unexpected political decision in decades, and it was leaderless. So began the agonizing post-referendum years.
As an aside for understanding just why they were so agonizing, we have to go back briefly and study the referendum result map. Just like the United States, Britain runs its general elections on a first-past-the-post, or ‘winner takes all’, voting system, the consequence of which is that, broadly speaking, only two major political parties dominate electoral politics¹. Also just like the United States, each party has its safe seats, or ‘heartlands’ where they consistently win, and there are really only a couple dozen constituencies that are up for grabs each election. Every parliamentary election map, then, looks roughly the same, with a few minor changes depending on who eked out victory that year.
Now, crucially, the referendum result map looked quite dissimilar from previous (or subsequent) general election result maps. In other words, you couldn’t really map the Leave/Remain divide onto the traditional Conservative/Labour party divide. Because both the Labour Party and the Conservative Party had campaigned to Remain, the referendum had liberated voters of their usual party loyalty. Latent discontent about a broad range of issues had existed for some time in Britain, but unless that discontent fell within the narrow range of policies adopted by one of the Big Two parties, there wasn’t really a valve for its release. Unbeknownst to its authors, the referendum provided that exact valve and so, on June 23rd 2016, half a century of pressurized malaise and frustration spewed out all at once. What appeared in the referendum were the ghosts of two new political parties, hitherto stifled by the entrenched bipartite system. That would prove to become important down the road. It was always known that Brexit was an existential threat to the Conservative Party, but now it looked to be potentially a threat to the Labour Party too. The traditional divide between the two is what had kept both alive: people vote Labour because they hate/fear the Tories, and people vote Tory because they hate/fear Labour. But now Labour voters in Yorkshire were finding themselves on the same side of a major issue as Conservatives in Kent; meanwhile their fellow Labour voters in London looked across the barricades at them in disdain. Who exactly did the Labour Party even represent anymore?
For now though, this was merely a nagging, background thought. The more pressing question was who was going to run the country and actually deal with this Brexit vote. Unlike the US President, the Prime Minister is not a separately elected office — the holder is merely the leader of whichever political party commands a majority in the House of Commons. Even with Cameron pulling a hasty seppuku, the Conservatives as a party were still in power and so they got to pick who the next PM would be. As you might imagine, that top job was not a particularly enviable one at that moment. Only five candidates put their name forward, and two of those voluntarily withdrew before the selection process was over. The ‘winner’, if you want to call it that, ended up being Theresa May, the former Home Secretary. May had devoted her life to the Conservative Party and she was determined to rescue it now in its hour of need. Indeed, one has to imagine that Theresa fancied herself the heiress of her only female predecessor, Margaret Thatcher: a strong woman who would sweep in at a time of national crisis and save Britain from the brink of chaos. How incorrect she would turn out to be.
Everything started to go wrong from the get-go. May declared that, although the referendum had technically been only ‘advisory’ and had only been won by a slim margin, the government intended to uphold the outcome, and began making plans to Leave. As a first order of business, she moved to invoke Article 50, the official legal mechanism for withdrawing from the European Union. Although almost everyone agreed this made sense, right away the move hit a stumbling block that would portend how the entire agonizing process was going to play out.
See, the thing about the British constitution is that since it has been around for such a long time and has adapted throughout history, no one has ever actually bothered to sit down and iron out all the kinks. It works in practice, but not in theory, which is sort of the opposite problem that most countries have with their constitutions. Bits of it are written down in court cases and landmark documents, but at its core little more than a gentleman’s agreement holds together the delicate balance of power between the monarchy, the parliament, the Prime Minister’s cabinet, and the people. Britain’s system of government is brimming with hypothetical absurdities: Technically the queen could go full autocrat by just refusing to sign any law that Parliament passes; technically the ‘Prime Minister’-ship isn’t even an official position — there’s no law that created the post, meaning there’s no consensus on who the first Prime Minister even was — it’s just a made up term for whoever can lead a majority in the House of Commons and therefore get stuff done.
Then there’s the confusion about what Britain even is: colloquially, it comprises four nations: England, Scotland, Wales, and Northern Ireland, though someone might pipe up at this point and say that technically Wales is a ‘Principality’ and Northern Ireland is a ‘Province’. Scotland, Wales, and Northern Ireland each receive their own levels of devolved autonomy. Scotland actually gets its own full Parliament, while Wales and Northern Ireland have to make do with mere ‘Assemblies’. In either case though, that separate government body has authority over a subset of political decisions for the region — Scotland’s Parliament for example, can set its own income tax rates, while Northern Ireland’s Assembly kept abortion illegal long after it had been legalized in the rest of the UK. All of these regions send MPs to the British Parliament in Westminster, which makes all decisions for England, and some decisions for Britain as a whole. In case you’re wondering, yes, this leads to weird situations where MPs from, say, Scotland, can vote on tax rates that will only affect England, while English MPs would be barred from having a say on the exact same matter in Scotland (because it was devolved to the Scottish Parliament). It’s known as the West Lothian question and the odd person grumbles about it every now and then but no one can be bothered to fix it. Brexit was to be a forcing function that brought a lot of these hitherto overlooked cracks in the constitutional system to light.
Back to our story: the stumbling block Theresa May hit was, ‘do you, the Prime Minister (which is made-up position) have the right to unilaterally invoke Article 50 on behalf of the country?’ Obviously, with Britain never having left the EU before, there was no precedent for something like this and, as discussed, none of these powers are explicitly spelled out anywhere. May, unsurprisingly, argued yes — that she was acting within the royal prerogative (i.e. on behalf of the Queen) just as the Government does on all foreign affairs questions. However, a private citizen, Gina Miller, took the Government to court and countered that no, invoking Article 50 implicitly involved overriding previous Acts of Parliament (all the ones that had codified EU Law into British Law), and was therefore a decision that legally must have Parliament’s input. The Supreme Court of the UK — which itself had only been set up in 2009 when someone realized we can’t just keep winging this system of government — ruled in favor of Miller on November 3rd, 2016, and required May to get Parliamentary approval for invoking Article 50.
The reason this was seen as a major setback and not just a technical formality to go through was because of the other theme that will be an undercurrent for our narrative: Parliament in general does not want to carry out Brexit. Competing reasons exist for this. The MPs themselves will say they are against Brexit because they are looking out for the best interests of the country and leaving the EU will damage the country’s economy; a cynic and Brexiteer, however, might say that the real reason they don’t want Brexit is that they are part of the global elite — an unpatriotic Establishment that has been grifting off the EU for decades. Whatever their real motives, the incontrovertible fact that’s relevant for us is that a vast majority of MPs voted Remain. Combine that with the Supreme Court’s decision and we now have an absurd situation where Parliament is being asked to implement a decision that they fundamentally, on the record, do not agree with. It is a constitutional crisis because Britain now has two conflicting sources of legitimacy: 1) Parliament, which is supposed to wield ‘absolute sovereignty’ standing in opposition to 2) the people (or, at least, a majority of the people who voted in the referendum) who voted for Parliament in the first place.
Shrewd demagogues, as well as anyone in the pitchfork business, quickly noticed this paradox and saw an opportunity to rabble-rouse. The day after the Supreme Court delivered its judgement, the Daily Mail covered its front page with pictures of the three sitting court judges, along with the ominous, Orwellian headline: “ENEMIES OF THE PEOPLE”.
Seeing that they were in the public line of fire and not wanting to wind up staring at the wrong end of the proverbial guillotine, MPs realized that, whatever way they voted in the referendum, they better start changing their tune and at least go along with the procedural vote for now. When May brought the Article 50 bill to the house a month later on December 7th, MPs passed it by a 461–89 majority. The Article 50 bill took a couple more months to wriggle its way through the maze of legislative bureaucracy before finally coming into effect on 16 March 2017. May now legally had the power to pull the trigger and she did so two weeks later on 28 March.
Negotiations with the EU could now commence (they wouldn’t even talk to the UK until Article 50 was invoked), but at the cost of setting off a ticking time bomb: Britain had just two years to agree a deal before the EU would sever all ties. Remain supporting MPs had gone along with the vote in part because by their calculation two years was still plenty of time to stymie, frustrate, and water down Brexit as much as they could. As we will see in the next chapter however, the British government managed to plumb new depths in time management skills and the doomsday clock approached midnight faster than anyone could have imagined…
[1] Duverger’s Law, for all my poli-sci nerds out there
