The Brexit battle is fundamentally changing the constitution

In the battle for Brexit, it is starting to seem like anything goes. The government’s announcement that it would prorogue Parliament has escalated disagreements about the constitution, how conventions are being interpreted by the government and what powers Parliament has at its disposal. Conventions and prerogative powers are being undermined because neither side trusts the other to respect their usual interpretation, while the Queen has been dragged into constitutional controversy. A general election may provide a route out of the current impasse, but the process of Brexit has done lasting damage to the constitution. 

The battle for Brexit has triggered a major clash between Parliament and executive

The battle between Parliament and the executive has been intense for a year. Both sides have interpreted conventions to their own convenience. During Theresa May’s premiership, MPs and the Speaker used obscure Parliamentary practices or eschewed previous precedents to force the government’s hand in ways the government had assumed were off limits. The government’s opponents relied upon the fundamental principle that their moves were supported by a majority in Parliament; Parliament is sovereign and can decide its own rules.

But the government has also challenged conventions, and now Boris Johnson’s decision to prorogue Parliament has angered many of the government’s own backbenchers and led to a minister resigning. Another backlash was caused by Michael Gove’s clumsy refusal to answer whether the government would abide by legislation requiring a Brexit extension. Downing St offered a climbdown, but there are still strong expectations that the government would look for any loophole if legislation was passed. This would again call into question the degree to which the executive respects the sovereignty of Parliament.

Brexit is bringing the role of the monarch into question

Brexit has even challenged the UK’s system of constitutional monarchy. It has long been a fundamental principle in the UK’s uncodified constitution that the Queen must remain impartial and not be dragged into politics. The Queen will doggedly attempt to sustain that principle, but she is reliant on her ministers doing likewise when they formally advise her on Royal prerogative powers – the executive powers that are exercised through her by ministers.

The politically-charged decision to shut-down Parliament was controversial enough, but if the impasse continues then she could be required to make even more controversial interventions in the weeks ahead. There have been suggestions, attributed to No.10, that the Queen could be asked to refuse to give royal assent to any bill tabled by MPs opposed to the government. The constitutionality of this is disputed by a number of experts, but sources have implied this may not be enough to stop the government from trying.

The Queen could even be called in to referee between government and Parliament over the very question of who should lead the government. If the situation escalated to a vote of no confidence being lost by the PM, those inside Downing Street have also implied that Johnson may refuse to resign – even if an alternative government of national unity can be formed. If there is an alternative PM who has the backing of a majority of MPs, would the PM really force a situation where the Queen had no option but to dismiss him? All of this would have been unthinkable just a few years, or even months, ago. 

Some constitutional norms may reassert themselves, but lasting damage has been done

Jacob Rees-Mogg, the Leader of the Commons, has said that that any legislative effort by those opposed to no deal would be considered a confidence matter. While apparently part of a strategy to discourage rebel backbench Conservatives from voting against the government, it also means a fundamental convention may be reasserting itself. Governments continue in office with the confidence of the House. They can be brought down by a vote of no confidence (now complicated by the Fixed Term Parliaments Act), but they can also declare their own position impossible because they have lost confidence.

If it looks like Parliament is going to succeed in legislating to try to force an extension, will the government say this is untenable and call for an election? It would need the votes of two-thirds of all MPs – which means the support of Labour MPs – but it would be a reassertion of something like normal service. Any election would need to be before Oct 31^st, otherwise another hugely important constitutional convention – that governments must only act in a caretaker capacity during an election campaign and any major policy changes, for example leaving the EU without a deal, should wait until after the result – would be ripped up.

The UK is still dangerously close to the mother of all constitutional crises. Even if that is averted, perceptions of our constitution have already changed. It is hard to see how political actors will return to assuming that the other side will respect parts of the constitution that are not always explicitly spelled out – and there appears to be no immediate prospect of that respect being restored.