In normal times, neither the British public nor even Westminster commentators need concern themselves much with constitutional matters. That is one of the virtues of having no written constitution. But in these far from normal times, we are all about to learn much more than we might like about the Salisbury Convention, the Sewel Convention, the Good Friday Agreement, and even “confidence and supply” arrangements.
These issues are already producing a lot of sound and fury, in Parliament, Holyrood, Stormont and the daily press. What that noise most probably signifies is that the public will be asked to vote again, sometime during the 18 months left of the Article 50 divorce process.
Boris Johnson, the foreign secretary, may be right when he says the public is “fed up to the back teeth” with voting, though the increased turnout on June 8 suggested otherwise. Nevertheless, more voting is the only way to deal with constitutional logjams in the British system.
“Salisbury” is the first convention to have raised its head. Talk that the House of Lords might consider blocking or amending the Repeal Bill or other Brexit legislation has prompted immediate reminders of the seven decades old agreement that the Lords would not block legislation required to implement the governing party’s manifesto promises.
Some argue that the Salisbury Convention does not apply in the case of a hung parliament, leaving peers free to act. However, Labour’s manifesto – although fudged – also promised a version of hard Brexit. That gives strength to the notion that blocking or pressing for softer-Brexit amendments would still be illegitimate.
Given the presence of newly confident and outspoken rebels on both sides of the Commons, the convention may nevertheless be insufficient to discourage anti-Brexit Lords from causing trouble for the government in this way. But to hold the moral high ground in any such argument, their most logical course will be to demand that the public be consulted, most probably in a general election, which would also have the virtue of forcing Labour to clarify its stance following public debate. Such a “constitutional crisis” is also a potential route to a second referendum.
Disputes over the “Sewel” Convention may well press in the same direction. This agreement states that the UK may not legislate on matters that are part of the devolved competences of the Scottish parliament, unless the Scots give their consent. Nicola Sturgeon, Scotland’s First Minister, will be anxious to find and exploit nationalist issues through which to strengthen her position following a disappointing election result.
Given the extent of devolution, the potential for disputes over this issue is huge, especially in the sensitive areas of farming and fishing. It promises to be virtually impossible to hold the line that all aspects of the replacement of European law with UK law fall outside the remit of devolution.
As for the Good Friday Agreement, that is less a constitutional matter than a political one. It promises to hand Sinn Fein a tool with which to pressure Westminster. Under the power-sharing agreement that followed the 1998 Good Friday deal, the UK government is supposed to be a neutral party brokering deals between the unionist and nationalist parties. Whatever arrangement the government strikes with the Democratic Unionist Party (DUP), if any, is bound to cause ructions in Ulster.
And then there is confidence and supply. In many ways this goes to the heart of the constitutional question of the government’s ability to stay in office. Confidence and supply is an arrangement under which another party, group of parties or individual MPs support the government on matters of confidence and budget votes. A minority Tory government, even with an agreement with the DUP, is vulnerable to losing a confidence or supply vote in the Commons, probably precipitating a general election in which Brexit would loom large.
Count the days: any constitutional crisis that may occur is really an electoral crisis. We will be voting again sooner than you think.
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Edited by Michael Prest
I think Mr O’Brien, in his LBC show, may have exposed the problem the Tories really face now. They know that their dream of being able to blackmail the EU into a sweet deal is a non-starter, and have now to face the reality that even a good deal may be disasterous for the economy. This is why they are content to keep Mrs May at No. 10, none of their “big beast” Brexiteers wants to be in a position of responsibility when it all unravels. They know the public will hold those responsible to account, and that it will not be pleasant, so they hold back, dig themselves in and keep their heads down.
On a separate point, we, the remainders, have to stop allowing the Brexiters to frame the debate. We need to take the advice of the UC Berkeley professor seriously, and stop talking about “taxes/taxpayers/regulation” and turn it into being about “investment/services buyers/protections”. It’s a different way of seeing the same thing, but our taxes are an “investment” in the vital elements that make up a successful country/nation. We “purchase” or “pay forward” for our pensions, social security, police, fire, ambulance, and other services, and the vast bulk of regulations are there to protect us from exploitation, abuse, unfair treatment or dangerous practices, such as that seen at Grenfell House. They are not burdens, restrictions, or limiting our freedom.
Time to change the debate, the Tories and their tame media moguls have for far too long been allowed to frame the EU and the debates about tax, services and protections in an altogether far too negative manner.
I think that the Good Friday Agreement is an international treaty and is covered by the VCLT. This makes it legally enforceable at the ICJ. That makes it a bit more than a political settlement.
Whether it is another GE or a new EU Ref you Brits have passed the point of no return. Both will be of no significance to the Continent! 😲