Following the vote of the UK House of Commons on March 25 enabling it to give direction on how Brexit ought to be managed, there have been assertions by the Government members who claim that Parliament was attempting to usurp the constitutional authority of the government. Others argued that such a wresting of power from the government was unprecedented and constituted the basis of a constitutional crisis.
What has occurred may be unprecedented, but only because it is the first time a parliamentary impasse has arisen in the era of fixed election dates.
The Fixed-term Parliaments Act changed the constitutional relationship between Parliament and the government. The Act is a constitutional statute, being one that affects an aspect of the constitution or how certain parts of the constitution are to operate. Its adoption should have anticipated greater parliamentary pushback and greater involvement by Parliament in the affairs of government without the government considering such involvement as a demonstration of no confidence resulting in the dissolution of Parliament. What was not anticipated was how parliamentary impasses of a significant impact were to be resolved.
Prior to the enactment of the Fixed-term Parliaments Act, an impasse in Parliament on a matter of great national import, often between the House of Commons and the House of Lords, was resolved through the government attempting to control the House of Commons by considering such matters as matters of confidence thus demonstrating parliamentary cohesion (see my earlier post www.lexparl.com/2019/01/13/brexit-and-the-true-face-of-fixed-election-dates/). If this was not sufficient to resolve the issue the government would have request the Queen dissolve Parliament with the result being an election on the issue. In such circumstances those who lost the resulting election would accept the matter at an end and that the election provided a definitive and binding result akin to a referendum. This was even the case when those who “lost” the election still had the ability to block the policy that led to the impasse and the election.
Issues that were significant and addressed at elections often lead to constitutional changes. For example, a budget impasse led to the convention in the House of Lords that it will not impede legislation that was specifically the subject of the election campaign. And more strikingly, there were significant changes to the relationship between the House of Commons and the House of Lords following a decisive election on Irish Home Rule. In both these instances, an election was seen not only as a vote for the establishment of a government, but specifically as a referendum on the issues.
Now, with the Fixed-term Parliaments Act, the option of an election to end an impasse is not a ready option. Governing with the confidence of the House of Commons is somewhat divorced from any particular issue. The nature of an election as a “referendum” on a policy, no matter how major, is not easily put in place. However, a referendum is now an option. And, I would suggest, in the present circumstances is the only option that is left to both the government and Parliament. As a result of the Fixed-term Parliaments Act it would appear that a referendum has replaced elections as the safety valve for addressing parliamentary impasses on significant issues.
The extraordinariness and unprecedentedness of Parliament attempting to control the government does not flow from the issue of Brexit. It primarily flows from the effects of the Fixed-term Parliaments Act, a constitutional change. The “unprecedented” nature of the situation of Parliament taking control and attempting to address a “failed” government policy cannot be measured against the past where elections provided that the way forward; but rather, it must be examined in light of the new constitutional reality envisioned by Act.
The new constitutional reality also includes the added constitutional tool of a referendum (something that was previously rare in Westminster system of government). Its use must now be considered in light of the changed constitutional reality of fixed election dates. A referendum is also a particularly useful tool for resolving major constitutional changes such as Brexit, that cut across party lines. In the present circumstances it is, I suggest, the only way for the parliamentary impasse to be resolved.
As to the form of the referendum, this is a question that may bedevil Parliament since it seems there are three, rather than two, realistic outcomes. Framing the question so as to obtain a definitive answer in such circumstances may seem impossible. I would suggest, however, that there is a way to conduct a referendum that respects constitutional history and would provide a definitive results.
As a first step, the government’s proposal should be put to the population as a means to gauge public support. This would be consistent with the prior practice that saw elections as referenda. The issue of the remaining two possibilities only arises if the government proposal was defeated. A second referendum to address these two options would be difficult and quite divisive. I would suggest therefore that they be added as a second question and that the ballots only be counted (or results disclosed) if the first question is defeated. As a result, the ballot questions could be structured as follows:
- The government proposes that the United Kingdom leave the European Union in accordance with the withdrawal agreement reached with the European Union. Do you agree that United Kingdom leave the European Union in accordance with this agreement? (Yes/No)
- If the result of the vote on question 1 is that the United Kingdom not leave the European Union in accordance with the agreement should the United Kingdom,
a) leave the European Union without an agreement, or
b) revoke the notice under Article 50 and remain in the European Union?
Such a referendum would provide all three options in a structured fashion and provide a definitive result.
The Brexit situation illustrates the unintended consequences of enactments of a constitutional nature that are not fully thought through. In this case the Fixed-term Parliaments Act clearly gave the House of Commons greater ability to hold the government to account both for policy decisions and legislation by allowing it to criticize the government, and from time to find time defeat it without triggering an election. It also allowed Parliament rather than the government to have control over the timing of a premature dissolution of Parliament. However, the Act provided no mechanism for the government or Parliament to resolve a major constitutional impasse between them. Unless they could work out the disagreement the problem was left to fester within a deadlocked institution. There was also little thought given to the relationship between referenda and elections and the likelihood that there may be more referenda if elections were not plausible. If there are to be fixed term elections and little possibility of elections to resolve parliamentary impasses, then serious consideration must be given to whether and when to use referenda or to develop other appropriate means for resolution.
In the meantime, a referendum seems the only means available to address the Brexit impasse.