“THE UNCERTAINTY, MUDDLE AND DRIFT [OF BREXIT SHOWS] THAT VICTORIAN THEORIES OF GOVERNMENT SIMPLY DON’T DESCRIBE ANY LONGER THE REALITY OF HOW THE UK IS MISGOVERNED”
“I live and practise in the United States, a parliamentary democracy where a written Constitution is supreme. The UK, though, has a system of contingent Parliamentary supremacy (with the Crown in Parliament – the Executive – dominant), and no written constitution.
One may prefer one model over the other. I prefer that of my adopted homeland, as it happens. But one may argue for either, and the UK’s has, in fairness, generally muddled along pretty well on precedent and incremental adjustment.
Until now, that is. In the last week or so, you back home have seen the UK Supreme Court deciding, obiter dicta, that it knows better than legislators what voters want; and Parliament ruled not to be supreme, but bound by an ad hoc referendum in a past Parliament.
Moreover, Parliament has ceded control to the Executive in making laws – the so-called ‘Henry VIII’ powers, agreed without discussion – and decided not to give itself a say over the Executive determining the UK’s standing in the world, instead freeing the Executive to act unfettered.
Oh, and as you may not have noticed, witnesses summoned to give evidence to Parliamentary select committee enquiries only come by their own discretion, and, like Arron Banks, can seemingly walk out when they feel like it.
So, which system is it? Parliamentary supremacy? Judicial control? Executive control? One popular vote nearly two years ago that seemingly now binds all future parliaments?
I honestly do not know. I doubt if anyone can say with true certainty. (Scots constitutional lawyers are meanwhile brawling, as if about the last bottle of full-sugar Irn-Bru, over a Sewel convention that nobody is even sure is broken.)
So far as I can tell, UK constitutional structures at the moment aren’t just mixed, they’re scrambled. Brexit is a universal solvent, and all the previous structures are crumbling and mingling within the struggle over it. And that cannot be a sustainable state of affairs.
Whatever ultimately happens with Brexit, the UK is going to have to clarify constitutional structures in a way it hasn’t done since the Irish Home Rule crisis. The uncertainty, muddle and drift, where nobody is truly sure who has what powers, under what limits, cannot continue.
The thing is, I’m uncertain, on the evidence of the mess that’s been allowed to develop today, that there is the requisite appetite or expertise to carry out the difficult constitutional exercise of picking one system, clarifying it and sticking with it. I am sure, though, that Victorian theories of government simply don’t describe any longer the reality of how the UK is misgoverned.”
Tim O’Connor, Attorney at Law