Boris Johnson, Brexit, and Britain’s Constitutional Quagmire

An array of enormous questions—previously believed to have been settled—are now up for debate, all at once.

A man wearing a Boris Johnson mask stands outside Downing Street, pretending to dig a grave for "British Democracy."
Henry Nicholls / Reuters

The authors of The Federalist Papers, that great series of essays defending the Constitution of the United States, set out to convince the public that democracy, at least in its original, ancient Athenian form, was not only impossible, but dangerous. Their preferred system of government was a republic, based on the principle of representation.

Even some of the most radical Enlightenment thinkers of the 18th century—those who supported universal suffrage, the rights of women, and the abolition of slavery—rejected direct democracy, or “simple democracy,” as Thomas Paine called it. Direct democracy, they argued, is government without the benefit of reasoned deliberation, leaving an authoritarian executive justifying its power with populist rhetoric. That, at any rate, was how the Founding Fathers viewed Pericles of Athens.

The United Kingdom’s prime minister, Boris Johnson, who studied classics in college, says his greatest hero is Pericles. Which explains a lot. Johnson’s populism is what secured the support of his party’s members and brought him to Downing Street. Traditionally in the U.K., the government’s legitimacy comes from its support among members of Parliament. At the core of its famously “unwritten” constitution is the principle that prime ministers can continue in office only for as long as they can maintain the confidence of the House of Commons. It’s not clear that Johnson has that support. And it’s not clear that he cares.

Johnson bases his legitimacy on an appeal to direct democracy, delivering the result of the 2016 referendum, in which Britain voted to leave the European Union. The result did not tell us what kind of Brexit the people wanted or whether they preferred any kind of Brexit to remaining in the bloc. But Johnson—like his predecessor, Theresa May—treats the referendum as a mandate, claiming immense executive power to interpret “the will of the people.” Unlike May, however, Johnson also seems to be determined to take the U.K. out of the EU on October 31 “with or without a deal.” To reach that goal, he is giving all indications that he intends to bypass elected representatives.

Here in Britain, enormous constitutional questions, previously believed to have been agreed on, are now up for debate again, and these are but a few of them. The British constitution has begun to seem more and more like an elaborate, high-stakes parlor game. Moves that were thought to be impossible have begun to seem merely improbable. Conventions that once looked like certainties are becoming unsettled. Issues ranging from the might of the executive, the power of MPs, and even the role of the queen are—almost all at once—being fought over.

There was a fear, throughout the Conservative-leadership campaign, that Johnson would force through a no-deal Brexit—in which Britain would leave the EU without any withdrawal agreement, something the government’s own analysis says would cause chaos—by advising the queen to prorogue, or suspend, Parliament. He consistently refused to rule that out, although in June he did say he was “not attracted to archaic devices like proroguing.” Just this month, the government’s lawyers said the issue of prorogation was “entirely academic.”  Then, on Wednesday morning, to everyone’s surprise, Johnson made the move anyway.

Prorogation itself is a normal part of the parliamentary process. It’s a necessary step before a Queen’s Speech, when the government sets out its legislative agenda, which Johnson has set for October 14. What’s extraordinary about this instance is its purpose and length. It’s not quite as bad as proroguing Parliament until it’s too late to stop a no-deal Brexit—or to avoid a vote of no confidence, as happened in Canada in 2008—but it’s still bad. John Bercow, the outspoken speaker of the House of Commons, called it a “constitutional outrage.” It was probably not unconstitutional for the queen to agree to the request, but it may have been unconstitutional for Johnson to make the request. It’s certainly an abuse of power, designed to make it more difficult for MPs to stop a no-deal Brexit.

Johnson seems to believe that constraining lawmakers is a vote winner for a future People v. Parliament election in which he takes the side of the people. If he believes his supporters care so little about representative democracy, might he countenance even more egregious instances of executive power?

The blame for this shift away from representative democracy rests not solely with Johnson. It stems from a series of decisions, taken by Parliament itself, from 2015 onward. Beginning with the legislation that set up the referendum, MPs consistently failed to put in place processes that would protect a role for Parliament in the event of a Leave vote. After the result, Parliament was thrown a lifeline by judges, who were called “enemies of the people” for ruling that the government needed parliamentary authorization to trigger the EU’s time-limited exit process. Still, MPs failed to take that lifeline, and voted overwhelmingly to allow the government to start the countdown. In the more than two years since, they have done nothing to stop it, and so most MPs have to accept their share of the blame for the breakdown in representative democracy.

It’s equally true that the U.K.’s system of “responsible government” traditionally gives the executive enormous control over Parliament’s legislative agenda. The conventions establishing the executive’s control derive from the late 19th century, in part to stop Irish nationalists filibustering in the Commons—the rationale was that an executive with a majority in Parliament should be able to get its way. But that is less persuasive now, when Johnson’s Conservatives hold a minority of seats in the House of Commons. Other democracies don’t give the executive this power.

It had also been assumed that one of the certainties of the British constitution, as it has developed over the past few centuries, is that the queen’s royal assent to legislation is a mere formality. But that convention, too, is being cast into doubt. If Johnson fails to stop a potential attempt by anti-no-deal MPs to force the government to seek an extension to Britain’s October 31 withdrawal date, media outlets here have reported that he may advise the queen not to give royal assent. That then comes into conflict with another well-established convention, which is that the monarch must act only on the advice of her ministers. If Johnson were to advise the queen not to give royal assent to a bill passed by Parliament, what would happen? The last monarch to refuse royal assent was Queen Anne, in 1708, when her ministers advised her, uncontroversially, not to sign the Scottish Militia Bill. For Johnson to give this advice now, however, would be enormously controversial. It’s hard to imagine any prime minister seriously putting the constitution and the monarchy in jeopardy like that.

Yet some serious commentators and experts, such as the former first parliamentary counsel Stephen Laws, the retired law professor John Finnis, and the historian Andrew Roberts, have argued that it would be legitimate for the prime minister to advise the queen to refuse royal assent, that until the prime minister loses a vote of no confidence, his advice to the queen must be followed. They may be right that the queen must act only on the prime minister’s advice. But their proposal would not only put the queen’s political neutrality in danger. It would be authoritarian to a most odious degree. For the sake of representative democracy, the queen should not be advised to refuse assent to a bill passed by Parliament.

One consequence of Johnson’s decision to prorogue Parliament is to make it more likely that there will be a vote of no confidence in the government. Here, too, old constitutional understandings are in doubt. Since the end of the Second World War, there has been only one instance of a government losing a vote of no confidence. That was in 1979, when Prime Minister James Callaghan lost. At that time, Callaghan effectively had a choice: He could resign immediately, or he could ask the queen to dissolve Parliament for a general election. He chose the latter. The Fixed-term Parliaments Act 2011, however, now requires a 14-day period following a vote of no confidence in which the Commons can pass a vote of confidence either in the existing government or in an alternative government led by someone whom MPs have recommended to the queen. If neither occurs, Parliament will be dissolved.

Whichever of those options happens, there is plenty of room for more constitutional crises. Senior figures in No. 10 have given clear signals, reported in the media, that Johnson would not resign in the event of a no-confidence vote. If the Commons expresses its confidence in someone else, then for Johnson to stay would be, as former Foreign Secretary Malcolm Rifkind put it, “the gravest constitutional crisis since the actions of Charles I led to the Civil War.” The last monarch who dismissed an administration was King William IV in 1834. It would be less controversial for Queen Elizabeth II to dismiss Johnson. Arguably, it would be her constitutional duty. But it would still politicize the monarchy.

If there’s to be an election, Johnson could play fast and loose with the constitution in other ways. He might, for example, choose an election date after the October 31 deadline for Britain to leave the EU, allowing Brexit to happen by default during an election campaign. That would be reckless in the extreme—including for Johnson’s chances of securing an overall majority. Would it also be unconstitutional? During election campaigns, there are so-called caretaker conventions, according to which the government should not make any controversial decisions that would bind a future government. The government would be right to insist that a no-deal Brexit is the legal default, but that does not necessarily mean there would be no duty on the government to change it. If Johnson loses a vote of no confidence, it would be because MPs had rejected a no-deal Brexit. Whatever the conventions of the constitution require, it would be a gross violation of representative democracy to ignore MPs’ wishes.

The fact that all of this is up for debate is truly astonishing. To some scholars, such as Vernon Bogdanor, a politics professor at King’s College London, Brexit has demonstrated the need for the U.K. to adopt a codified constitution. The breakdown in parliamentary government—the triumph of populism over pluralism brought about by Brexit—strengthens the case for a codified constitution that would place more obstacles in the way of political power. But a codified constitution is not a panacea. As other countries have discovered, it would not be a guarantee against populist excess, and could even create more problems than it solves. That’s not to say there’s no need for reform. Britain’s constitution is hardly in rude health; in fact, it’s never been more vulnerable.

For now, can anything be done to stop a determined prime minister who cares so little about the constitution and its protection of representative democracy? There are calls for mass civil disobedience, and we can expect such calls to get louder the further down this road Johnson goes. Others opposed to the means by which Johnson is pursuing Brexit are heading to the courts, though their legal challenges will be difficult to win. Their best hope is that MPs will find a way to legislate or bring down the government.

Yet that still might not be enough. In the end, for all the talk of high principle, we are relying, to a large extent, on Johnson believing it to be in his self-interest to allow MPs to have their say and abide by any decisions they make. He probably will. At the very least, though, he and his team believe it to be in his self-interest to earn a reputation as a revolutionary rather than a conservative, replacing parliamentary democracy with authoritarian populism.