It is alleged that Queen Elizabeth II once remarked: “The British constitution has always been puzzling and always will be.”However, the extent of its puzzling nature came to bear in 2018, following a plethora of legal and political challenges, which drew reference to a ‘constitution in crisis.’
The year started with continued warnings from senior judges that judicial independence, and even the rule of law itself, was coming under threat- in particular from populistswho view judges as ‘enemies of the people.’ The constitution came under further pressure in relation to Brexit, following continued questions over the balance between the UK Government’s prerogative powers and parliamentary sovereignty– especially those as to the nature and date of the so called ‘meaningful vote’ on the negotiated Brexit deal. Such was also coupled with the threat of a breakdown in relations with the devolved nations over ignoring the Scottish Parliament’s refusal to grant Westminster a Legislative Consent Motion, as well as renewed calls for a re-negotiation of devolution settlements, or alternatively independence from the UK Union altogether. And as the year came to a close, there was no shortage of challenges- particularly following the UK Government being held in contempt by Parliament; motions of no confidence in the Prime Minister by her own party and the official opposition. After a turbulent year in politics, thwarted with legal complexities, is the UK constitution really now in ‘crisis’?
wHAT IS A CONSTITUTIONAL CRISIS?
The UK has faced challenges in 2018 but is still short of a ‘constitutional crisis’. Why?
A constitutional crisis, in its political sense, can be defined as a problem, or conflict, in the function of a government, that the political constitution or other fundamental governing laws, is perceived to be unable to resolve.
Nonetheless, in the UK today, there are several variations of this definition. Support for this can be found via searching Parliaments’ Hansard records for the term ‘constitutional crisis’ (and its variations).
A search between 1800 (when their records began) and 2018, returns 3,531 references made in both the House of Commons and House of Lords.
Interestingly the term has been used 247 times in Parliament within the last two years alone. This accounts for 7% of the total number of times the phrase has been used over a 218-year period…the second highest within recent history.
If one includes reference to the less certain synonyms of the term, for example ‘national crisis’, a particular favourite turn of phrase used by Jeremy Corbyn, and ‘crisis’, the total number of references in both Chambers total in excess of 10,000 occasions between 2017-18 (the most frequent number of references on record).
Outside of Parliament, commentators have similarly adopted the phrase within their press releases, often without quantify what such actually means.
Analysis of such UK references suggests that the media and politicians incorrectly use the technical phrase today for something that is particularly unusual, or troubling, and has led to a difficult constitutional question, yet political or legal resolution has been eventually reached or made possible.
American Professor Whittington states that one of the reasons as to why the media and politicians often adopt an incorrect definition of the term is because there are no legal repercussions for using it.
There are two broad types of ‘genuine constitutional crisis’:
1) Crisis of Operation:
whereby the constitutional rules lead to unresolvable conflict;
2) Crisis of Fidelity:
whereby a person or branch of government won’t comply with the constitutional rules.
In 2018 the aforementioned events fell into neither of these categories, as legal clarification or political compromise was possible.
NEW CHALLENGES FOR 2019
Whilst the UK did not fall into the technical definition of a crisis in 2018, there are still challenges ahead. The prospect of an impasse in Parliament over the negotiated Brexit deal; as well as the consequences of the Government being held in contempt suggests that there is a significant possibility that the UK could come close to a crisis of operation or fidelity in the foreseeable future.
Nonetheless, in light of such, one can be reminded of the words of JF Kennedy, who remarked “in a crisis, be aware of the danger—but recognize the opportunity.”
The UK Constitution is at a crossroads, whereby there are opportunities for change. As history tells us, public law can be resilient, and where political conventions give rise to uncertainty, mechanism exist to codify them into law.
In such circumstances, the issue becomes less about a constitutional crisis, and more about the reality of political compromise to achieve legislative possibilities.
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