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Boris Johnson’s campaign rhetoric reveals why there’s a constitutional crisis over Brexit

The nation is split over who should rule, the people or Parliament.

- December 3, 2019

As Britain heads toward a Dec. 12 election, Boris Johnson has adopted a strategy of pitting the people against Parliament.

This isn’t just a populist rhetorical trick. The fact that the people and Parliament can be treated as opposing sides reveals a deeper crisis in Britain’s constitutional arrangement. I’ll explain below.

Parliament has fought to “take back control” of Brexit

The Brexit vote set off a major legal battle on whether the government needed Parliament’s consent to trigger the exit from the European Union. Parliament won the right to vote on the issue. And while most members of Parliament at the time supported remaining in the E.U., Parliament did eventually consent to exiting.

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But exactly how to leave has remained highly problematic. By March 29, when Britain was originally supposed to leave the E.U., Parliament had rejected Prime Minister Theresa May’s withdrawal agreement three times. In an attempt to break the impasse, MPs “took back control of Brexit” and gave themselves the power to weigh in on alternative plans in a series of “indicative votes” intended to signal which option Parliament preferred. However, no plan was supported by a majority of MPs — making next steps quite difficult. May was forced to step down. In September, MPs overruled their new prime minister, Boris Johnson, by voting that Britain could not exit without a negotiated deal, an option Johnson insisted he must retain.

And yet whatever objections Parliament may have had to individual Brexit plans, it could not reject it altogether. Those who supported leaving the E.U. argued that they wished to take back British sovereignty, Britain’s power over its own destiny. Paradoxically, in doing so, it was the British people, not the E.U., that constrained Parliament’s sovereignty. While the Brexit referendum was not legally binding, it was politically binding for MPs.

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Boris Johnson, man of the people?

Johnson, the embodiment of the British establishment, has exploited the tension between people and Parliament. In September, he suspended — or “prorogued” — Parliament for five weeks. When the Supreme Court declared the prorogation unlawful, Johnson accused MPs of trying to “sabotage Brexit and surrender to Brussels.” Johnson has said he would rather “die in a ditch” than delay Brexit beyond Oct. 31, and he faulted Parliament for obliging him to seek an extension of the Oct. 31 deadline for leaving.

Why does this matter? Most Brexit commentators have focused on the conflict between Britain and the E.U. — that is, between national and supranational sovereignty. But a joint research project of the University of Cambridge and the Université libre de Bruxelles in which I am involved shows that what’s most in play are competing notions of sovereignty within Britain.

How we did our research

In three separate surveys after the Brexit vote, “sovereignty” was the most frequently cited reason for voting “Leave.” But there has been surprisingly little research on what different political players mean when they talk about “sovereignty.”

To understand this, I analyzed how sovereignty was discussed during the 2019 British prorogation controversy. To do this, I examined and hand-coded 65 newspaper articles mentioning “sovereignty” and “prorogation” collected from the 16 most influential British broadsheet and tabloid newspapers. I found that pro-Leave and pro-Remain media offered very different ideas of the relationship between national, parliamentary and popular sovereignty.

Parliament vs. the people

Liberal pro-Remain outlets interpreted the prorogation case in the Supreme Court as being “about whether we can have Britain free of tyranny,” as the Independent put it — meaning Johnson’s tyranny. Pro-Remain newspapers insisted that Johnson served as prime minister only with the consent of Parliament, that MPs were the true representatives of the people, and that Johnson did not embody the popular will.

In this narrative, Johnson’s attempt to suspend Parliament was a “Brexit coup” — an illegal attempt to extend executive power under the pretext of carrying out the Brexit mandate. This parliamentary sovereignty was presented as perfectly compatible with the E.U.’s supranational sovereignty.

Pro-Leave conservative outlets took the opposite view. From their perspective, Parliament’s act ruling out a “no-deal” exit was the real “coup.” As one Daily Mail columnist wrote, that was “a very English form of coup d’etat, orchestrated by an anti-Brexit faction in Parliament to subvert the clearly expressed will of the people.” These outlets urged Johnson to break the law and oppose the “E.U. Empire,” following such examples as Mahatma Gandhi’s salt march against the British Empire, Nelson Mandela’s uprising against apartheid, and the Boston Tea Party’s rebellion against the crown. The historian David Starkey even compared Henry VIII’s marital troubles to Brexit, arguing, “The break with the Roman Church is absolutely analogous to us separating ourselves from the E.U.”

Becoming like the E.U.

Unlike the U.S. Constitution, Britain’s constitution is not codified in written form. It consists of acts of Parliament, court cases and conventions, giving it room to adapt to changing political circumstances. During Britain’s membership in the E.U., incremental changes qualitatively changed the constitution without real public discussion.

First, while Britain was an E.U. member, its parliamentary sovereignty was bound by E.U. law. The House of Commons’ role as the “depository of sovereign authority” was challenged by accepting that external authority. Second, in the late 1990s, the Westminster parliament transferred some powers to Scotland, Wales and Northern Ireland. Third, after the 1975 British referendum on membership in the European Communities, major decisions in British politics have been preceded by referendums. The “European question” opened a way for the people to take more power within the British constitution.

The contentious Brexit process has laid bare that constitutional change. The very meaning of parliamentary sovereignty in Britain has become politically contested.

Toward a new constitution?

Many now claim that Britain needs a codified constitution to avoid such messy imbroglios. But it’s not clear that a written constitution would prevent such controversies. Further, given the highly divisive climate, Britain does not have the broad public consensus and spirit of mutual concern and respect needed to craft such a document.

Most important, conflicts between popular and parliamentary sovereignty are not just a British constitutional problem. We’re seeing them in E.U. countries with written constitutions. Consider the popular movements against free-trade agreements in E.U. countries such as Germany and Austria, or the rise of digital parties in Spain and Italy.

The political confrontation between people and parliaments is likely to haunt Britain and the E.U. for years.

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Julia Rone (@JuliRone) is a Wiener-Anspach postdoctoral research fellow at the department of politics and international studies at the University of Cambridge.