Vernon Bogdanor: MPs haven’t been doing their jobs – this isn’t a constitutional crisis, but a parliamentary one

Posted On: 
11th September 2019

This spineless Parliament has willed the end of Brexit without being prepared to will the means – the sooner it dissolves the better, writes Vernon Bogdanor

"MPs are culpable in failing to warn Theresa May when she was negotiating the Withdrawal Agreement that the backstop was unacceptable"
Credit: 
Dominic Lipinski/PA Archive/PA Images

Are we in the midst of a constitutional crisis, a parliamentary crisis or a crisis of British democracy itself?

There is certainly no crisis of democracy. The 2016 referendum saw a turnout level of 72%, the highest in any national election since 1992. Indeed, it seems that some were voting for the first time since the era of Margaret Thatcher in the 1980s.

Part of the reason for this of course is that in a referendum, as opposed to a general election, there is no such thing as a safe seat. So, whereas a voter in South Shields, which has not elected a Conservative since before the 1832 Reform Act, or Bournemouth, which has not elected a non-Conservative since before the First World War, might well feel it is not worth bothering to vote in a first past the post general election, in a referendum every vote counts.

Despite the harsh things said about the 2016 referendum, the high turnout was a striking illustration of democratic commitment on the part of the least fortunate in British society. The greatest threat to democracy, after all, is an inert electorate, one that has ceased to think about public issues.

John Stuart Mill wrote that `as we do not learn to read or write, to ride or swim, by being merely told how to do it, but by doing it, so it is only by practising popular government on a limited scale that the people will ever learn how to exercise it on a larger’. We learn about democracy, not by reading books about it, but by participating in making decisions.

We used to worry about political apathy, but the European issue has galvanised political opinion on both sides of the Brexit divide. Now the complaint is the opposite – that it has led to `populism’, by which some mean that it has prevented our wise legislators from going about their proper business.

Nor does Britain face a constitutional crisis. There is certainly a need for constitutional reform, particularly after Brexit. That is a central theme of my recently published book, `Beyond Brexit: Towards a British Constitution’. For Brexit removes us from a protected constitution – since while we have been in the EU, Westminster has been bound by European Union law – into an unprotected one characterised by the sovereignty of Parliament.

The EU, moreover, was the glue which held together our devolution settlement. That settlement now needs to be clarified and codified, if not by a constitution, then at the very least by a Charter laying down the rights and obligations both of Westminster and the devolved bodies. Indeed, Lord Bingham, perhaps our greatest post-war judge, made a plea for just such a Charter shortly before his untimely death in 2014 and well before Brexit.

We also need, in my view, greater protection for human rights, since Brexit means that we will no longer be bound by the EU Charter of Fundamental Rights, a Charter which provides much more powerful protection than the European Convention of Human Rights, a product of the Council of Europe rather than the EU.

But none of these reforms, important though they are, nor even a fully codified constitution, would have made much differences to the crisis we are currently facing, which is a crisis of Parliament itself. It results from the failure of Parliament over three years after the referendum to implement Brexit.

That in turn is the result of two factors. First, the fairly even division of opinion in the country between Remainers and Leavers, a division of opinion well reflected in the House of Commons; second, and more importantly, the spinelessness of the current Parliament which has willed the end of Brexit without being prepared to will the means, and without proposing any plausible alternative.

The 2016 referendum was of course advisory, and the Commons could have ignored it without being in breach of the law. David Cameron, however, had committed the government to accepting it, and MPs decided also to do so when they passed the EU Notification of Withdrawal bill in 2017 by the massive majority of 384 votes. This gave the Government the necessary authority to invoke Article 50 of the EU treaty, committing Britain to leaving the EU by March 2019 at the latest. That date has been twice extended and may well be extended a third time.

These extensions have occurred because the Commons has three times rejected the withdrawal agreement negotiated by Theresa May’s government with the EU.

Before this year, Parliament had not rejected a treaty since 1864. The Commons instead passed the Brady amendment calling for alterations to the Irish backstop. But agreement has not so far been reached with the EU.

The logical consequence of rejecting the only withdrawal agreement available is either to leave the EU without a deal, or to revoke Article 50, something which would, no doubt, require a further referendum. As Theresa May put it at the time, the alternatives are either no deal or no Brexit.

The Commons, however, has been unwilling to accept either alternative. Nor at the time of writing has it allowed the Prime Minister to break the deadlock by dissolving Parliament.

MPs are culpable in failing to warn Theresa May when she was negotiating the Withdrawal Agreement that the backstop was unacceptable.

In analogous circumstances, Conservative MPs warned John Major when he was negotiating the Maastricht treaty in 1992 that the EU’s social chapter was unacceptable; and Major was able to secure an opt-out. Possibly Theresa May could have secured a different agreement had she been warned during the negotiations.

But MPs did not seem to appreciate the significance of the backstop until sometime after the negotiations had been concluded. They were deficient in carrying out their duty of parliamentary scrutiny.            

The Commons have now instructed the Prime Minister to secure a three-month extension of the Brexit date, a third extension. An extension, however, is not a policy, but an opportunity for an alternative policy. But what is that alternative policy to be?

The Liberal Democrats, nationalists and some in the Labour Party seek a second referendum which might reverse the verdict of the first. Others in the Labour Party seek a better deal from the EU. It is not yet clear what form that better deal would take, nor how it is to be secured. Shadow Foreign Secretary, Emily Thornberry, has declared that Labour would seek a better deal but then call a referendum and advocate Remain, so rejecting the deal negotiated – an odd procedure.

In addition, at the time of writing, MPs are voting against a dissolution, so preventing the British people from deciding whether or not they wish to leave the EU on 31st October.

We face, therefore, not a constitutional crisis, much less a democratic crisis, but a parliamentary crisis, since MPs have not been doing their job properly. And they have been assisted in their dereliction of duty by the Fixed-term Parliaments Act. By making dissolution so much more difficult, the Act has allowed MPs to maintain in existence what Jacob Rees-Mogg, Leader of the Commons, has called a `marionette government’ that has lost control of Parliament and the freedom to negotiate.

The Parliament elected in 2017 has, therefore, hardly covered itself in glory. It has neither provided the wherewithal for a hung parliament to work, nor has it allowed the government to seek the verdict of the voters.

In 1653, Cromwell dismissed the Long Parliament, telling them, `Ye are grown intolerably odious to the whole nation; you who were deputed by the people to get grievances redressed, are yourselves become the greatest grievance’. The sooner the 2017 Short Parliament is dissolved the better.

Vernon Bogdanor is Professor of Government, King’s College, London. His book, ‘Beyond Brexit: Towards a British Constitution’ was published by Tauris earlier this year.