The UK has not yet had a constitutional crisis over Brexit—but it could do soon

At the time of this post, the United Kingdom still had not had a constitutional crisis over Brexit. It has had political crises, and it has had constitutional drama. But not yet a constitutional crisis—though it seems this may soon change. Perhaps, by the time you read this, it will have.

A crisis is a serious situation, the outcome of which cannot be forecast. Fortunately, so far, each constitutional tension thrown up by Brexit has been resolved without a crisis: the government has complied with votes and court orders, the Commons have prevailed on this issue, ministers on that. The noise accompanying each resolution has been the sound of a constitution working.

But a constitution having worked so far is no guide to future performance. What happens if there is a stand-off—ministers vs parliament, or ministers vs the courts—where there is no mechanism or will for one side to back down? The reluctance of two Cabinet ministers, Michael Gove and Gavin Williamson, to confirm that the government will comply with any law passed by Parliament is a sign that such a moment could be approaching. How would such a conflict be resolved before becoming a contradiction?

There have been many previous constitutional crises in the UK, and in England before the union with Scotland. Sometimes they have led to sudden changes affecting the monarchy (1660, 1685-88, 1936) or else to the crown threatening to dilute parliament to support ministers (1832, 1910-11). Each one was unpredictable, even if there is a “whiggish” interpretation of the whole story constituting constitutional progress in hindsight.

In Brexit, the basis of any constitution is the injection of instability into the body politic by means of a referendum. The referendum result was not binding as a matter of law (MPs could have made it binding but chose not to), but it was treated politically as a strict mandate. As such, it created a rival form of political legitimacy to the supremacy of parliament. Asserting the “will of the people” was treated as enough to face down any aspect of the state—parliament, the courts, the civil service—which could be perceived as frustrating the referendum result.

But such an approach to referendums does not fit in a system based on representative democracy. In whatever form a constitutional crisis on Brexit finally manifests, its ultimate cause is the conceptual incompatibility of popular democracy and a parliamentary system. A constitutional crisis will be as much an ideological crunch as a clash between competing principles of governance.

And so, regardless of how a constitutional crisis gets resolved, there will still be problems as long as this conceptual crisis endures. This makes the current situation more akin to the 1640s and 1680s than other previous crises since what is stake is the legitimate source of political sovereignty.

Perhaps the good sense of our parliamentarians will mean a crisis can be averted, and a way through which avoids a No Deal exit—a prospect parliament has repeatedly rejected—on 31 October 2019 can be found. If so, that will be to the credit of the politicians involved.

But ministers now seem fanatical, claiming the absolute rightness of the referendum result justifies anything they choose to. What is now at issue is not just UK membership of the EU but the legitimate basis of political power itself. And that will be quite a crisis if the issues are forced.