How Brexit Has Unleashed a U.K. Constitutional Crisis

(Bloomberg) -- Is Britain facing a constitutional crisis? Prime Minister Boris Johnson’s brutal battle with lawmakers over Britain’s plan to leave the European Union has led the country into uncharted waters. Along the way, the U.K.’s highest court overturned Johnson’s suspension of Parliament, political norms are being tested and even the Queen has been dragged in. There are more fights ahead over where power resides and how it may be exercised in a country governed by a mass of unwritten rules heaped up over centuries.

1. Why is this happening?

Both Johnson and his opponents in Parliament argue they’re carrying out the will of the electorate who voted in 2016 to leave the 28-nation bloc. The Prime Minister has vowed to exit the EU on Oct. 31 whether or not a transition agreement has been reached with Brussels, but a so-called “no-deal” divorce could plunge the country into chaos. Parliament has voted repeatedly to prevent that from happening. Yet, even though his party no longer commands a majority of seats in the House of Commons, Johnson has hinted he might ignore Parliament and bolt from from the EU anyway.

2. Why are people calling this a constitutional crisis?

Britain doesn’t have a written constitution, relying instead on precedent and custom to steer its governance. That arrangement has worked well enough in normal times, but with the country and its leaders deeply divided over Brexit and no party commanding a clear majority in the House of Commons, the conventions are being repeatedly tested. Johnson insists that the national referendum on Brexit gives him a mandate to get the job done. For the past three years, members of Parliament have been working toward that goal, but a majority are now balking at how Johnson aims to go about it.

3. Where does this leave Brexit?

If the U.K. and EU don’t reach a negotiated transition agreement by Oct. 19, Parliament has required Johnson to seek an extension, likely until Jan. 31, 2020. That demand is part of a law sponsored by Labour Party grandee Hilary Benn that was passed on Sept. 9. The prime minister has promised to continue negotiating with Brussels, but has also said he’d prefer to be “dead in a ditch” than to ask for more time. Members of Parliament are worried he may try to exploit loopholes to evade the Benn Act, which has been described by some legal experts as “not watertight.” Such a move, if the government attempted it, would set up further legal battles over the power of the prime minister to evade the will of Parliament.

4. How could Johnson get around Parliament?

Once a bill becomes law, there aren’t many options available to circumvent it. But former Prime Minister John Major warned on Sept. 26 that the government could seek to suspend the Benn Act until after Oct. 31, effectively forcing a no-deal Brexit. Rather than involving the Queen again, the government could issue the order through senior politicians in the Privy Council, a ceremonial body made up of current and former ministers. Alternatively, Johnson could invoke emergency powers under the Civil Contingencies Act to delay the legislation. Both tactics would undoubtedly be challenged in court.

5. Haven’t the courts already stepped in?

Johnson’s move to suspend, or “prorogue,” Parliament for five weeks in the run-up to the Oct. 31 deadline was challenged in the U.K. Supreme Court, a new top tribunal established just a decade ago. In a rebuke for Johnson, the 11 judges unanimously found on Sept. 24 that he broke the law by stopping Britain’s elected politicians from fulfilling their democratic role. The court robustly defended the principle established in the 17th century that Parliament is sovereign, finding that the unchecked right of prorogation is incompatible with that concept. Ardent leavers immediately attacked the ruling as an attempt to frustrate the democratic will of the people. Johnson said he would respect the will of the court but nevertheless press on with Brexit.

6. Where does the Queen fit in?

Perhaps the sole victory for the prime minister in the ruling was that the court wasn’t definitive that he’d lied to Queen Elizabeth II, who had to approve the prorogation of Parliament at his request. The monarch stays out of politics -- what she thinks of Brexit isn’t known, for instance -- and wants to avoid being drawn into a fight. Civil servants are also duty-bound to keep her out of any political or constitutional controversy.

7. How does this get resolved?

With the current Parliament deadlocked over how -- or even whether -- to leave the EU, the only way out of the impasse looks to be an election that gives one party an outright majority or leads to a governing coalition. But Johnson can’t call one himself. To do that, he must either get two-thirds of lawmakers to agree to an election or lose a vote of no confidence. So far, lawmakers have refused to authorize either route. Even so, it looks likely that Britain will go to the polls in November or early next year.

The Reference Shelf

• QuickTakes on a no-deal Brexit and the crucial Irish border.
• Brexit for beginners.
• Full text of the U.K. Supreme Court ruling on Sept. 24.
• Bloomberg Opinion: the Editorial board says Johnson’s Brexit gamble has failed, Therese Raphael says Johnson’s Brexit plan is in trouble and Lionel Laurent warns Brexit may get even more toxic from here.

To contact the reporters on this story: Edward Evans in London at eevans3@bloomberg.net;Jonathan Browning in London at jbrowning9@bloomberg.net

To contact the editors responsible for this story: Anthony Aarons at aaarons@bloomberg.net, Andy Reinhardt

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