As the Parliament of the United Kingdom descended into chaos and internecine warfare, and Britain’s highest court plunged into the political fray, something became clear, if it wasn’t already: Brexit is not simply a contest over Britain’s future ties to Europe or its future role in the world. It is also an existential struggle over the very nature of the British state and its unwritten constitution. Britain has been brought to the brink, in part, by a process of faux Americanization—the selective adoption of facets of the American system, in some cases the least desirable aspects of the American system. Below are a few important examples of the dynamic.
In 2009, Britain removed its court of final appeal from the House of Lords, and thus the Parliament, to establish a separate high court styled in the American manner as “the Supreme Court.” It was perhaps inevitable, therefore, that courts in the U.K. would increasingly seek to exercise American-style judicial review over the unwritten British constitution. As a result, the principle—established for centuries—that supreme, constitutional authority rests with the Crown-in-Parliament has never been at greater risk.
We have today the spectacle of both Scotland’s Court of Session and the U.K. Supreme Court ruling that Prime Minister Johnson—really the Queen, acting on his advice—unlawfully prorogued Parliament. The executive, according to these rulings, did not provide proper justification for its actions; by this rationale, the courts alone decide constitutional propriety—not the Crown-in-Parliament, and not the political process.
Cleverly, both courts presented their decisions as protecting Parliament’s interests. No one should be fooled. The judiciary is claiming constitutional authority for itself, in defiance of British precedent, and at the long-term expense of the executive (the prime minister, government, and Crown) and Parliament alike. It is Parliament, after all—in theory, reflecting the will of the people—that empowers a prime minister and a government in the first place. The courts, ignoring the unitary, constitutional principle of the Crown-in-Parliament, instead pretend that the British government is the American one: a system of three, co-equal branches, in which the judiciary makes the final call on any constitutional question.
Britain’s courts are thereby becoming, as America’s already are, unelected tools of politics, losing proportionate credibility as impartial arbiters of justice. Even worse, because they are interpreting an unwritten constitution, British courts stand poised to arrogate unto themselves even more political power, even more quickly, than their American counterparts have done. Having disregarded their customary deference and subordination to the Crown-in-Parliament, there will be nothing—not even the pretense of textual fidelity—to restrain them.
Another example of Britain’s faux Americanization involves activist-driven “primaries.” Members of Parliament used to choose their own leaders. But some years ago, party members from outside Parliament were allowed to start voting for leaders, and thus potential prime ministers—the advent of a quasi-American primary system. While this was sold as more “democratic” than the former practice, it is not. By removing the ultimate question of parliamentary leadership from MPs, the democratic will of the broader electorate—the many people, of many parties and persuasions, who actually voted for MPs—was discounted. Instead, choice of leader was left to the loudest and most extreme voices: registered party members. These are people who—unlike Republican and Democrat primary voters—pay dues for their voting privileges and represent only a tiny sliver of the total population.
Consequently, MPs have been placed in the bizarre position of serving under leaders whom they might collectively detest, and whose policies—reflecting the will of activists—may be much more extreme than their own (see Jeremy Corbyn). At the same time, MPs are unable to rid themselves of ineffective leaders in times of crisis without triggering lengthy, divisive primary contests (see Theresa May). This deprives a parliamentary form of government of some of its chief advantages (fluidity, flexibility, and rapid responsiveness to immediate needs), while introducing none of the balancing of power that helps restrain factionalism and activism in the U.S.
Britain has also caught the American bug of personality politics. A well-functioning parliamentary system should not revolve around individuals, but around parties and their manifestos (charters for action, which in America, where they are much less important, are called party “platforms”). British politics, however, has followed the American template by embracing television debates—vulgar showcases for contrived emotion and scripted insults, overseen by agenda-driven media moderators looking to make a splash.
In the American system, the personal drama is more understandable, if no less desirable. Each federal office-holder is, in theory, expected to adopt an independent negotiating posture on behalf of his specific constituents and, in the case of the president, on behalf of the nation. In the British parliamentary system, while constituent services do matter, there has long been a different emphasis. The parliamentary party would stand or fall on its manifesto pledges and its performance as a party in arguing for them, in opposition, or in carrying them out, in government. To inject raw personality politics into such a system is to undermine the party coherence necessary for delivering a manifesto and the clarity needed by the voting public. Are British voters to judge particular individuals, standing as independent agents, as in America? Or are they voting for a manifesto? In today’s Britain, no one can really be sure.
Finally, the Fixed Term Parliaments Act (FTPA), enacted in 2011 by the Conservative-Liberal Democrat coalition government, has managed to reduce the once-powerful office of prime minister to something between a ceremonial president and the assistant manager of a high street department store put out of business by Amazon (and poor government tax policy). Under the FTPA, the prime minister can no longer, as before, simply ask the monarch to call an election. Now, without a vote of no-confidence, two-thirds of Parliament must approve a potential election. Otherwise, everyone must wait until a fixed term expires, which could take years. A prime minister, as we see in the case of Boris Johnson, can be held hostage by the House of Commons—unable to govern if he loses his working majority, unable to ask the people for a new mandate. Britain, in truth, can be left without a government at all.
The Liberal Democrats, as junior partners in David Cameron’s coalition government, demanded the FTPA for opportunistic reasons, seeking to ensure their party’s electoral security for five years. But the change in law represented more than this. It was a direct attack on the unwritten British constitution. As Polly Mackenzie, Director of Policy for former Liberal Democrat leader and Deputy Prime Minister Nick Clegg, recently wrote, “[m]ost other countries have fixed terms: establishing that principle, as a first step towards a modern constitution, was valuable.” Like Americans who tire of the U.S. Constitution as written, Mackenzie and her colleagues have tired of the British constitution as unwritten. It was not mere coincidence, either, that agitation for the FTPA issued from what would become, a few years later, one of the most adamantly pro-Remain parties. By undermining Britain’s distinct traditions, many constitutional “reformers” have also hoped to integrate a more pliant U.K. fully into the E.U. They have certainly made leaving the E.U. much more difficult.
The point of faux Americanization was never to make Britain like the United States. Elite British “reformers” have no interest in enacting a Bill of Rights with robust speech protections or gun ownership rights. They have no interest in an independently powerful executive which enjoys massive authority without a single congressional vote (just see how it goes if Congress orders President Trump to write a nice, diplomatic letter to Europe begging for things, as Parliament has done by commanding Prime Minister Johnson to ask the E.U. for yet another extension). Nor do they want a powerful, elected upper chamber that can veto anything the lower chamber might do. More likely, the object has been to render the U.K. just another state in an ultimately consolidated, centralized, United States of Europe. To this end, the unwritten British constitution would be supplanted not only by new statutes in Britain itself, but ultimately by vast reams of regulation emanating from Brussels.
Efforts to ensure Britain’s independence and sovereignty must begin at home. For its sake and the world’s, Britain should stop with the piecemeal, “modernizing,” faux reforms. It should uphold its own constitutional traditions—the guarantors of its liberty for generations. An American-style, gridlocked government, minus American checks and balances, is destined to fail. Such a government might appear superficially more “democratic,” and may serve the interests of its elites. But it will fail its people. It will struggle to fulfill even its most basic promises and democratic covenants—namely, the Brexit referendum, which the U.K. government chose to sanction and pledged to honor. Such a government will also finally fail its allies.
America does not wish to look across the ocean toward a weak, miniature, insecure imitation of itself. America, and the world, needs a strong and self-confident partner in the United Kingdom. It is time for Britain to leave the European Union. More important, it is time for Britain to restore and protect her hard-won and time-tested constitution. Her people, her allies, and her future depend on it.
Augustus Howard is a research associate at Emmanuel College, University of Cambridge. He holds a PhD from the University of Cambridge and a JD from Duke University School of Law.
Photo by David Iliff via Creative Commons. Image cropped.
