How is Brexit possible? UK exceptionalism at its extreme end

How has the UK arrived in such a political mess? It is one of few countries with no constitution – therein the dilemma asks Europa United’s Brian Milne.

Many of us are thoroughly exhausted by Brexit. I am personally because I am engaged in a number of efforts to oppose it, even at this late stage. I have also been trying to help UK citizens get formal residency here in France, something I have done some time ago before mind numbing panic set in. I say mind numbing, because it is my mind that becomes insensitive in order to face the sensitivities of those confronted with something that instils fear in them for a considerable list of reasons that include their eligibility for the residents’ cards, what awaits them if they must return, how the French may turn against them but embellished with their regrets of not having learned the language of this land (English people claim to be unable to learn languages or argue that everybody now speaks English, so why should I?), having been here for umpteen years but their right hand drive car never registered (it should be within six months), thus not properly insured and certainly not tested if it has not been driven back to the UK for that. Others have avoided taxes, fear losing health and social security benefits, others will no longer be able to work cross borders, but again the list is long. They are all genuine problems but some are of their own doing which altogether makes it all mind numbing.

Yet that has become simply par for the course with other things far more disturbing. It is the lack of coherence or good reasons for leaving the EU. We know and have heard often enough about the referendum only being advisory, then used a some kind of edict set in stone although the margin of leave voters was less than two percent of those who could be bothered to turn out to vote. We have heard over and over again that the campaign was based on lies and use of personal data that allowed social media influence to be what made people vote to leave. That since then the government has refused to consider the electorate’s changed point of view on that decision is not exactly new news. What people know or understand very little is how the Westminster government gets away with it.

The school rules

Whenever there is a dispute in parliament, somebody will call on constitutional experts to offer resolutions. There are parliamentarians, such as Jacob Rees-Mogg, who believe themselves to be experts, who brandish their parliamentary bible of what MPs can and cannot do, A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament (most commonly known as Erskine May: Parliamentary Practice or simply Erskine May) by Erskine May, published in 1844, but that is little more than the ‘school rules’ as they apply to MPs.  In fact, the UK does not have a constitution at all in the sense most commonly used around the world that describes a document that sets out the structure of government and its relationship with its citizens. All modern states, with exception of Canada, Israel, New Zealand, Saudi Arabia and UK have at some stage in their existence as sovereign states adopted a written constitution, of which the second, although in some views the first, and most complete model is still that of the USA that was completed in 1788. It was constitution necessitated by the sheer futility of the post-revolutionary Articles of Confederation as any kind of governing document. During six years preceding the drafting of the Convention by James Madison, the Articles had failed the government’s ability to carry out its most basic functions, such as the imposition of taxes, raising an army, ruling on disputes between states, foreign policy and the regulation of trade and commerce between states.

Notable delegates to the Convention included Madison, Alexander Hamilton, and Benjamin Franklin. George Washington presided over the group of delegates that included Madison, Benjamin Franklin and Alexander Hamilton from May to September 1787. Most of the delegates were well educated men whose ideas on government had been informed by Enlightenment writers including John Locke and Montesquieu.  In his Two Treatises on Government, Locke had condemned monarchy and disclaimed the age old assertion that governments received legitimacy from divine sanction. Divinity was usually represented by the monarchy. Instead, Locke said, governments owed their legitimacy to the people. The primary function of government was to secure the rights of life, liberty and property according to him; thus the best government is that which is accountable to the people though the democratic election of representatives who may be replaced if they fail to uphold them and realise the protection of rights. Montesquieu stressed the importance of the separation of powers. In his De l’esprit des lois  (The Spirit of the Laws) he wrote that the legislative, executive and judicial functions of government should never reside in the same person or body. Instead they should be distributed over multiple branches of government to prevent one from becoming too powerful or dictatorial.

Whilst Montesquieu has never been seen as a direct political influence in the UK, Locke has to a point. In fact it was Edmund Burke who was a leading sceptic on democracy but had a both sizeable conservative and liberal following in his time. He admitted that in theory, in some cases it might be advantageous; however, he insisted that democratic government in that at that time would not only be useless, it could also be oppressive. His opposition to democracy was based on three reasons. Firstly, he asserted government should possess a degree of intelligence and extent of knowledge of a nature rarely held by common people. Secondly, he believed that if the common people could vote, they may be overcome by dangerous and angry ardour that could be misused by demagogues, fearing authoritarian urges that could be empowered by such feelings that would undermine prized traditions and established religion. That is turn could lead to violence and disruption. Thirdly, he warned how democracy would create tyranny over ostracised minorities who needed the continued protection of the upper classes. In fact, the very things Burke expressed needed some kind of codification for them to be upheld, which they never were although his original thoughts are still often held to be the foundation of the kind of democracy the UK has now, which is one resisting moving on from his 18 century principles to a greater extent than is admitted. It is precisely that which the present government rests its arguments on and has for a great part made Brexit possible.

Is there a constitution or not?

However, in the UK they certainly say that they have a constitution although it is one that exists only in an abstract sense, made up of a multitude of diverse laws, practices and conventions that have evolved over a long period of time. Thus, from a comparative perspective, we have what is known as an ‘unwritten constitution’, although some prefer to describe it as ‘uncodified’ on the basis that many of our laws of a constitutional nature are in fact written down in Acts of Parliament or law reports of court judgments. Yet that multitude of diverse components has no actual structure. It originates in around the 6 century in Anglo-Saxon England as a body of written rules and customs that were in place during that period until the Norman Conquest, at which time many were carried over and are even to this day valid in law.

Anglo-Saxon, with early Scandinavian and Germanic law, is derived from ancient Germanic customs and laws. In combination with Scandinavian law and the so-called barbarian laws (leges barbarorum) throughout Europe, they made up the body of what is now called Germanic law. Anglo-Saxon law was written in the language of the land, usually free of the Roman influences that used Latin across much of the continent. Where the Roman influence did exist, it was indirect and exercised principally through the church. There was Scandinavian influence as a result of the Viking invasions during the 8 and 9 centuries until the Norman Conquest brought with it Roman law that was embedded in the Frankish law they used, influenced the laws of England.

Magna Carta is not a constitution

Thus, the common laws used as the basis of some surviving laws and a kind of vague notion of a constitution go back to the Saxons, picking up the Roman law within Norman Frankish law after the conquest of England in 1066. Then the power they once had to a great degree in Saxon kingdoms evolved away from people in a feudal society in which freedom, rights and protections were enjoyed in full measure by the monarch that reduced as one went down the social strata so that the majority of people at the bottom were not free. As serfs and vassals they were not actually owned by the lords, but freedom was so limited that the difference is perhaps rhetorical. The absolute rule of the monarch was reduced a little when a group of rebellious earls effectively kidnapped the king and forced him to sign a treaty between himself and them. In reality, the Magna Carta was simply a ‘peace deal’ between the group of rebel earls and John in 1215 that was never actually acted on. Even then, it was specifically for the ‘freemen of England’ at a time when England was feudal with many more unfree serfs and others who could not genuinely be described as free at that time. It was for England, so not Northern Ireland, Scotland or Wales and then for men only.

Almost contemporary with Magna Carta in the 13 century, St Justinian’s Corpus Juris Civilis, began to spread over all of Western Europe, setting the legal framework for future constitutions. The Republic of San Marino that was founded in the 4 century is believed to have the oldest surviving constitution anywhere. It is not a single document, but is comprised of six books written in Latin that is collectively referred to as the Statutes of 1600. Some experts claim that does not make it a constitution because of its complexity and not being a single document; thus the single text document, the Constitution of the United States of America of 1788 that does meet these specifications is normally considered to be the oldest. Magna Carta brought to bear a strong influence both on the US Constitution and on the constitutions of the various states within that union because it was broadly felt to be the people’s reassertion of their rights against an oppressive ruler such as a king, demagogue or dictator, a legacy that expresses distrust of concentrated political power in a nutshell. Donald Trump appears to defy that to a point, however the fact that he must be elected or re-elected and could be impeached, thus removed from office, restates that. A good number of codified constitutions worldwide followed in the 19 century, the majority of which have been either rewritten or replaced but with only short periods without between, then with independence from colonial empires and with secessions and divisions since there was a large number in the 20 century through to the present. At present, as already mentioned, only Canada, Israel, New Zealand, Saudi Arabia and the UK do not have codified constitutions of the 196 formally recognised nations and the growing number of secessionist and as yet unrecognised states. A written constitution is usually a priority.

Back in the UK, over time interpretation of Magna Carta has been ‘tweaked’ a bit, during the Cromwellian period from 1649-53 particularly, then again in the 19 century, but actually is still only strictly for England and men, to interpret that as a basis of any constitution for the UK is very inventive. Some of the clauses have been superseded or become obsolete, thus have been repealed, yet remain the original document that is very often referred to in its entirety. Yet, unlike the USA and some former colonies, it has never been used to contribute to a formal, codified constitution. So along the way odds and sods of common law and the outcomes of events in parliament plus a considerable number of Acts have accumulated, but have never been codified structurally. They are often grasped out of thin air whenever required. As a result, there is a kind of unwritten code along with some ‘opinions’ by experts of parliamentary behaviour that serve as rules. The absurdity of that is that it does not exclude the speaker banning somebody from farting in the chamber today being thrown out becoming part of parliamentary law.

Modern constitutions

Meanwhile, when the mainland European nations came together as the countries we know, sometimes several phases from roughly the mid 19 century on, some earlier, saw the sense in using their constitutions as not only for a political structure but also for codification of all types of law. Their governments are bound by those laws, thus as law makers they must obey laws that conform to their constitution when making and changing laws. That may seem convoluted, but actually makes their task far easier because all is defined and contained. In 2014 the draft Bill that would have determined how Scotland would have been governed had the referendum that year been successful and the Act come into law included details on how an independent Scotland could prepare a permanent written constitution in a fully participative process led by the people. The Bill also set out immediate arrangements for independence, such as the role of government, human rights and the rule of law which would form the interim written constitution. The fundamental principle underpinning that Bill was that the people are sovereign, rather than parliament, as it is in the UK.

To take one step back though, following when royalty lost its absolute stranglehold over power in 1688, The Bill of Rights of 1689 established the supremacy of Parliament over the Crown following the replacement of James II by William III and Mary in the so-called Glorious Revolution of 1688. At that point in time, to put the delay in writing a constitution in perspective, it should have been the partner piece to the bill of rights. That delay has brought us to 2019 and what is in effect an impasse because there is nothing to actually steer parliament to where it intends or perhaps only wishes to be.

This only goes to enforce arguments that UK, actually English, parliamentarianism itself is antediluvian, following some kind of Peelite process, creating a new Disraeli, allowing a confidence trickster to excoriate opposition as unpatriotic, treacherous, white flag waving and hurl any number of insults with only a mild ticking off by the speaker. I have always been disturbed by how ‘young’ candidates for parliament will vow to change that, then settle into the faux traditions of parliament, those mannerisms that are habit rather than established, that are justified by so-and-so having done X in the past. Those new MPs become complacent, accept the ad hoc ‘rules’ that are made as the days go along, but recalling what ‘Smith’ or ‘Jones’ did in 1782 is always on reserve to justify the unjustifiable. It is not entirely what incumbent prime minister is doing; it is more a case of him being allowed to do it because that is what parliament does. For the population they represent (sic) that is not good enough, but they know that and play out their boy’s public school mess mannerisms that infect even comprehensive school women’s behaviour in that house. It is not governance; it is theatricality with grave consequences in this case.

The defeat of Boris Johnson’s government by the combined forces of opposition parties and and a growing number of his own MPs who have resigned or had the whip withdrawn is the first shot in a battle for the soul of the Conservative party. His party suffered the loss of its majority when one of his MPs, Dr Phillip Lee, crossed the house to join the Liberal Democrats. When members of his party voted against his Bill, 21 one of them had their party whip withdrawn and orders given to their constituencies for deselection, which has been defied already in some cases. Others are slowly leaving. Six weeks after he took office, the prime minister looks certain to be forced by an Act that is about to become law to break his promise to leave the EU by 31 October, “do or die”. He says he will break the law rather than ask for an extension, breaking new ground in parliamentary behaviour that may be his downfall making him the shortest ever serving PM in UK history. The implications for the Tory party are likely to be more significant than for Mr Johnson. The so-called rebels have been removed from the party by having the whip withdrawn and now being prevented from standing as candidates in the next and feasibly forthcoming election. The arguments over Brexit rampant in the Tory party could yet see the kind of split that followed Robert Peel’s 1846 repeal of the Corn Laws. Johnson acts as if he wants that division in order to affirm his takeover of the Tory party that he is driving to the hard right. The scale and rapidity of that power grab seems surprising to onlookers but not within the party. In June, 92,000 party members elected Johnson as their party leader. A month later he banned no dealer MPs from taking places at the cabinet table, appointing only those who follow his line, then lost his majority in parliament, but at first appeared to have strengthened his hold on his party. Johnson believed the embodiment of the Tory party under Theresa May was weak in spirit, manner and appearance which it was his mission to turn back round to win back support that might have bled away to the Brexit Party.

He tries to whip up as much indignation among leave voters as possible. It is a strategy that exacerbates grievances that he can use in a general election campaign to draw back the patriot vote to his party. It needs happen before the consequences of a no deal Brexit become apparent. To achieve this, his strategy has been to set out conditions to renegotiate the withdrawal agreement that cannot be accepted, thus not met, by the EU. It makes a highly detrimental no deal Brexit inevitable. However, he could then apportion the blame for his opponents inside parliament and in Brussels, to which end he employs provocative and disgraceful descriptions of the opposition as collaborators and traitors who would “surrender” the UK’s sovereignty. If the UK leaves the EU without a deal, there will undoubtedly be absolute economic chaos.

The dark forces behind the façade

There is another unconstitutional aspect that needs to be taken into account. Johnson’s choice of special advisers, Spads as they are known in contemporary political parlance, have taken their place in 10 Downing Street and in many people’s minds are governing rather than Johnson himself. Dominic Cummings, a former adviser to then Education Secretary Michael Gove, campaign director of Vote Leave and now as senior adviser to Johnson who has clearly pushed many of the strategies into his bosses hands to the extent he appears to be running the country. He was appointed after refusing to appear before the House of Commons, eventually formally admonished for contempt of Parliament during 2019. He has apparently been directly rude and dismissive to cabinet members, then recently fired one of Chancellor of the Exchequer Sajid Javid’s aides, Sonia Khan, without his permission and or informing him, then asked an armed police officer to escort her out of 10 Downing Street. He was also accused of hypocrisy not long after his appointment when it was revealed that a farm that he co-owns had received €250,000 in EU farming subsidies. Another controversial appointment has been Nikki da Costa  as director of legislative affairs, in fact also a Spad despite the title, who believes that executive powers should be increased and parliament ones reduced in order to give the prime minister greater power. Much of this contributes to what is now being seen as a coup d’état.

You want to know more, look at these

For those of you who cannot understand how this can happen, I would recommend reading book that explains how parliament works, in theory and practice that was written by a former clerk of the House of Commons, Robert Rogers, and a group of experts. How Parliament Works, originally published in 1987, but republished several times to remain up to date to include the effects of Brexit on Westminster. It also explains what difference a minority government makes and how it functions which is particularly useful during this period of apparent total dysfunction. Given the present style of governance, some knowledge of how a parliament that is guided by lies, conflicts and, at present, sackings can function can be explained by Peter Oborne’s The Rise of Political Lying published in 2005 but still very valid, or Robert Hutton’s Would They Lie to You? From 2014 which is a little more recent that helps people understand what politicians actually say and how politics is conducted. At present Anthony King and Ivor Crewe’s The Blunders of Our Governments from 2013 runs through some of the biggest mistakes over the decades until its publication, including the poll tax, and explains how politicians are capable of finding themselves in the kind of mess Johnson is in now, albeit his is exceptionally bad.

Westminster, a comedy of errors

For my own part, however seriously I observe politics, I am not quite sure whether it is a Monty Python’s Flying Circus sketch or a Marx Brothers plot, although recently I have noted Laurel and Hardy ‘fine mess’ type events and Three Stooges slapstick. I cannot understand how supposedly educated people can behave as they do. But then I suppose being working class, grammar school and Cambridge rather than ‘privilege class’ Eton and Oxford I learned to think a bit more than assume my birthright to a particular high status then settle for what great grandfathers probably did, especially those who were prime minister or other members of the ruling class, if not earlier generations.

So what has this entire story do with a constitution? The answer is that for lack of one, the UK is at present cavorting in an ever decreasing spiral into a worsening crisis whilst trying to pretend there is no predicament to be concerned about. Because there is no written code that provides actual laws and structures that would perhaps guide and certainly have contained the utter chaos the entire UK, including those parts that do not wish to leave the EU and voted decisively against that, not to forget Gibraltar of course, the writing is on the wall. In fact it is probably the most meaningful graffiti in town, writ in very large letters that spell out the urgent need for a written and properly codified constitution, reformed electoral process and method, plus radical change to the format of politics by having a two chamber system of elected people and even a contemporary, appropriate building in which a businesslike parliament functions as it does in at least most other European nations. The wretched excuse for a constitution, Magna Carta, that is precisely not that need not be entirely discarded, but could be used gainfully as part of a preamble to explain precisely why a constitution is necessary, however no more than that. If nothing else, the Brexit experience has exposed the fact that the UK is not part of the modern world, no matter how it views itself as being better than elsewhere. The one greatest opportunity may be its end of a once great empire as parts of the present union take their leave, thus leaving England and Wales alone, perhaps the latter leaving too with time, as a museum of bad politics.

There is one other message in the background we should consider. Whilst a large body of people are enthusiastic federalists, one often gets the feeling they are full of themselves with the notion of unifying Europe. The idea is good, but doing that is another matter altogether. A few of us do think about drawing fiscal matters together, that will be necessary in the long run, but a constitution and legal system is another matter altogether. With the exception of the UK, still a member at this point in time, there are 27 written constitutions as well as the unwritten excuse for a constitution that nobody can define. The UK, consists of four ‘countries’ (if I may wrongly describe Northern Ireland as that for the sake of convenience) whereby there is Anglo-Saxon common law in England and Wales, a separate law making system that is not directly connected to that in Northern Ireland and the  Scots legal system that has never been part of a UK wide system. Thus, over 28 countries there are 28 legal systems at present. Three are due to leave the larger bloc in the near future. All legal systems, bar those three, are entirely tied to the written constitutions. Without speculating on how in detail, just how does one cut through all of this to assemble the components of a single EU constitution, then move on to set up a shared legal system. It is not because that would prevent secessions like Brexit, but within that codified document a clear article that is far more explicit than Article 50 of the Lisbon Treaty would prevent a hybrid of a serious car crash and a comedy act like Brexit ever happening again. Right now, Brexit seems to portray a country employing the methods shown in the legendary Monty Python ‘Ministry of Funny Walks’ sketch, rather than walking out in a dignified manner. When the laughter dies away, it ceases to be funny, becoming profoundly heartbreaking. It may have been a blow to the EU anyway, but this country of four countries in a union that is unhappy but forced to leave a larger union and no solution internally for lack of a constitutional framework that has no bigger framework to help this transition advises the world what must never happen again. As for the UK, it is time to wake up and join the 21 century, as a whole or what remains staggering along with no constitution.