Brexit and the waning days of the United Kingdom

[Malthus]

It could be the case that both systems ultimately depend on a third factor - call it a sense of honor, a custom of paying at least some deference towards the notion of good governance or whatever - and it is this, and not the specifics of what is written down or not, that is important.

Yes, this was my point a few pages ago. The format changes the manner in which political and constitutional arguments are made, which has its importance, but it is never a protection against subversion.

This I think is what we are seeing.

[OttoVonBismarck]

I think trying to link the current situations to a written vs unwritten constitution misses the mark, I think generally a written constitution is better and most countries use one for that reason. I think it can provide greater clarity for all actors involved, as I originally said. But in the strata of what's effecting a given..."democratic crisis", I think lots of other things rank as much more important, which is why the presence or absence or a written constitution is not decisive in any sense. There's also structural issues relating to a written or unwritten constitution that can dramatically impact it. For example a number of Latin American countries have written constitutions with checks and balances, but have no real blocker in place to prevent say, a majority party just arbitrarily filling their Supreme Court with (sometimes hundreds) of judges to undermine checks and balances. Interestingly there's not actually a blocker in place to prevent that under the U.S. Constitution, either--just a stronger respect for tradition here vs Venezuela for example.

In Britain it's quite clear that whatever is going on with the Conservative party and its concerns about the Brexit party and Brexit itself; there is not a strong "cult of personality" or lockstep of a party behind Boris Johnson the person. After he lost his Parliamentary majority in dramatic fashion due to defections from his own party, it was clear that Boris doesn't command even his own party that reliably. Trump on the other hand is benefiting from a generational movement in which Republicans believe no other Republican can do wrong, or at least backing a Republican is always better than ever agreeing with a Democrat on any issue. The U.S.'s written constitution could perfectly handle Trump if Republicans were behaving honorably like the Conservative MPs who were willing to *gasp* lose their political careers to do what is right. Instead the GOP is epitomized by ghouls like Lindsey Graham that have reinvented themselves 3 or 4 times now to shift with populist Republican storms in order to cling onto a Senate seat and avoid a primary challenge because in LG's world principles mean very little compared to keeping his job as a Senator.

It's also worth noting that as bad as the stuff Trump looks to have done in Ukraine career DoJ prosecutors have already determined it probably wasn't criminal, since our criminal laws just weren't written to capture this sort of scenario.

[crazy canuck]

I think trying to link the current situations to a written vs unwritten constitution misses the mark, I think generally a written constitution is better and most countries use one for that reason.

Your assertion is noted.  But it is not entirely consistent with current events or history.  Codification of rights is not a guarantee of rights.  The USSR had, on paper, a very good constitution.

[The Brain]

Seems to me the Crown should have an independent legal counsel's office to give impartial advice on issues like this where the PM is conflicted.  If your are going to have a monarchy you shouldn't put the monarch in a position where she is forced to participate in an abuse of prerogative power.

Or they should just write down the rules clearly. Or at least write them down.

I think this crisis is showing the limits of a constitutional framework based so much on convention, in particular pertaining to the relationships between the constitutional powers when one of them engages dishonestly.

The simplest solution would be to remove all powers from the monarch.

[Sheilbh]

I think trying to link the current situations to a written vs unwritten constitution misses the mark, I think generally a written constitution is better and most countries use one for that reason.

Your assertion is noted.  But it is not entirely consistent with current events or history.  Codification of rights is not a guarantee of rights.  The USSR had, on paper, a very good constitution.

Agreed. I think a formal constitution can be helpful for setting out roles and responsibilities and rights, but it depends on I suppose institutional and political backing. I think our system is straining formally: what is the role of the branches of government, how does this relate to the devolved administrations etc.

If the non-elected institutions themselves don't fulfil the role they're assigned then you end up with a Soviet example. You can have all the rights in the world but if the courts won't enforce them, then the legislature and executive are unlikely to respect them. I think this is a point where the US institutions have largely worked. The courts have responded - and I think there's something similar in Italy.

But there's also a political commitment. At one extreme you have Weimar Germany where basically the only political party that actually believed in the system was the SPD, that is unsustainable. But I think there is a far more moderate contrast between the UK and maybe Italy against the US because there have been enough political actors in the UK and Italy willing to potentially damage their party and their own career to fulfil their constitutional role. I get the impression in the US, Republican Senators are kind of willing to eschew oversight of the executive if it provides them with a pipeline of reliably conservative judges.

But I think Otto's right. You know if a country was becoming independent I don't think anyone would recommend they follow the UK, New Zealand and Israel in not writing it all down in one place - that is a high risk approach.

It's also worth noting that as bad as the stuff Trump looks to have done in Ukraine career DoJ prosecutors have already determined it probably wasn't criminal, since our criminal laws just weren't written to capture this sort of scenario.

Yeah. I mean it's like a line I saw by one Tory lawyer about Johnson, that 'the constitution has a number of loaded revolvers lying about the place, on the strict but always unspoken understanding that they would not be picked up or used. Dominic Cummings said, "f*** that, let's use this one". And promptly shot his boss in the ass.'

There's an assumption that the President won't use office to enrich himself and act like a mob boss, so there's not necessarily any rules against it to deal with that situation.

[Sheilbh]

this fight between Parliament and the government is so extraordinary because it is so 17th century

That kind of sounds sensible to me. The current setup, customs and laws have their foundations in the late 17th century don't they? They have been refined, expanded, built upon, but the continuity has been deliberately maintained.

So, if you have an issue that impacts the core of the system, it is bound to be around 17th century level issues.

You're right it makes perfect it's just like chip said, when I was doing my Politics A-Level or reading Peter Hennessy one of the key points is how powerful the Prime Minister is. And yes you're aware that, technically, it's because they have a majority in the House of Commons but we have an electoral system designed to produce strong majorities. Where we are is just so far away from our 20th century politics it's crazy.

Because when there's a glitch and you end up with a minority government and restive House of Commons then it reveals that the bare-bones of our constitution is a 17th century settlement of an almost untrammeled legislature and an executive that has extensive powers, to the extent the legislature chooses to defer to them. As someone who grew and learned about our system in the pomp of New Labour - or even in earlier governments - it's just an extraordinary situation.

Incidentally on Brexit Labour have unanimously voted that they want free movement. So their current position is they want to negotiate a deal that has free movement but not membership of the Single Market. I'm not sure if that's a unicorn or not...

Edit: One aside on US v UK at this is I think Trump and Johnson both hate their jobs. Which is a tiny, tiny amount of consolation but, it's something.

[Malthus]

But I think Otto's right. You know if a country was becoming independent I don't think anyone would recommend they follow the UK, New Zealand and Israel in not writing it all down in one place - that is a high risk approach.

I'm not so sure - all three are reasonably successful first-world nations.

I would contend that either system can work, that the really important factor is not whether a constitution is written or not, but how many key people and institutions support the Rule of Law over the arbitrary exercise of power and party tribalism.

That said, writing everything down carries its own risks - namely that people get caught up in the specifics of the wording, that they lose sight of the big picture; particularly as the writers can't be expected to think of every contingency, or what issues may arise in the future (see: US debates over a "well-regulated militia" and how that applies to modern day gun control). Constitutions are unlike other laws in that once written, they tend to be very hard to change. An unwritten constitution, based on conventions and precedent, may be more flexible and easier to impose in unusual situations.

The flaws of a written constitution may allow bad actors to slip through the cracks, while arguing that they have done nothing wrong because they haven't violated the letter of the constitution.

That's basically Trump's strategy in a nutshell.

[OttoVonBismarck]

I think trying to link the current situations to a written vs unwritten constitution misses the mark, I think generally a written constitution is better and most countries use one for that reason.

Your assertion is noted.  But it is not entirely consistent with current events or history.  Codification of rights is not a guarantee of rights.  The USSR had, on paper, a very good constitution.

Constitutions do a lot more than codify rights...they spell out specific functions of government and mundane processes, which is exactly some of the areas where the UK system has had problems of late, and which are generally pretty easily resolved under a written constitution. The issues of enumerated vs unenumerated rights is only a very very small piece of evaluating whether a written or unwritten constitution is superior. Not just the USSR but UK have enumerated written down rights fwiw, I'm actually not familiar with any country that has no rights of citizens written down in any form at all.

[OttoVonBismarck]

The flaws of a written constitution may allow bad actors to slip through the cracks, while arguing that they have done nothing wrong because they haven't violated the letter of the constitution.

That's basically Trump's strategy in a nutshell.

Interestingly I actually don't think Trump represents a serious constitutional failure. The Presidency and laws surrounding the President were not designed or written to just inherently limit this kind of behavior. The major limiter to the President's behavior is two fold--the courts and the legislature. The courts have blocked many things Trump has wanted to do, and blunted some of the things they've allowed him to do. That is working as intended, mostly. The legislature however was clearly written as the entity responsible for correcting the "extremis" case of a President who is just manifestly unfit, corrupt etc. If the legislature isn't willing to use that power, then it's de facto 100% in line with the design that Trump gets away with this. The conceit is elected representatives are supposed to care enough about the country to step in and fix it when a chief executive has behaved beyond the pale. In essentially any democratic country on earth if the legislature does not care to enforce norms on the executive there's very little that can be done, regardless of the form of the constitution or etc. I don't know of any democratic country where the courts alone can remove a rampaging executive, I believe most require the legislature for that in some form or another

[OttoVonBismarck]

The areas where I think a written constitution are a lot superior are more in functional respects. Take the Brexit referendum itself for example, there's not even a formalized process for how Parliament is supposed to respond to referenda. In the U.S. States that allow citizens referendums, this stuff is written out very explicitly in the constitution. In what circumstance can a referendum be called, what can it do or not do, what does the legislature have to do in response to a referendum that passes, etc.

Another fun one is what happens if the British Prime Minister dies? Easy question and answer right? But you can quickly find several articles where British legal scholars speculate on exactly what would happen if a PM died. People have a good idea on the broadstrokes (government would keep running as the cabinet ministers would still be there, probably one would sort of run things as a caretaker and the PM's party would quickly select a new PM), but they actually have nothing but speculation on the specifics. That's because no PM has died in office in over 200 years, and the UK has no formalized process for this. In the U.S. I can tell you exactly what happens when POTUS dies in office, unambiguously. I can even tell you what happens if POTUS, VPOTUS, and half the upper members of the cabinet etc are killed at the same time. That's all specifically spelled out.

[Malthus]

The flaws of a written constitution may allow bad actors to slip through the cracks, while arguing that they have done nothing wrong because they haven't violated the letter of the constitution.

That's basically Trump's strategy in a nutshell.

Interestingly I actually don't think Trump represents a serious constitutional failure. The Presidency and laws surrounding the President were not designed or written to just inherently limit this kind of behavior. The major limiter to the President's behavior is two fold--the courts and the legislature. The courts have blocked many things Trump has wanted to do, and blunted some of the things they've allowed him to do. That is working as intended, mostly. The legislature however was clearly written as the entity responsible for correcting the "extremis" case of a President who is just manifestly unfit, corrupt etc. If the legislature isn't willing to use that power, then it's de facto 100% in line with the design that Trump gets away with this. The conceit is elected representatives are supposed to care enough about the country to step in and fix it when a chief executive has behaved beyond the pale. In essentially any democratic country on earth if the legislature does not care to enforce norms on the executive there's very little that can be done, regardless of the form of the constitution or etc. I don't know of any democratic country where the courts alone can remove a rampaging executive, I believe most require the legislature for that in some form or another

I do think the Trump situation is an example of express attempts to "game" the system, subverting the constitutional intent. The original idea was that the legislative, executive and judicial aspects of government each keep a check on the other.

Why do so many Republican politicians tolerate Trump? One reason is that he promises to stack the Supreme Court.

The Supreme Court rules on matters that affect democracy in the US - for example, on campaign donations and gerrymandering.

So they tolerate a corrupt and incompetent executive, because he promises to stack the judiciary to the advantage of bad actors in the legislature.

Of course this has gone on much longer than Trump. He's a symptom, not the disease.

[crazy canuck]

I think trying to link the current situations to a written vs unwritten constitution misses the mark, I think generally a written constitution is better and most countries use one for that reason.

Your assertion is noted.  But it is not entirely consistent with current events or history.  Codification of rights is not a guarantee of rights.  The USSR had, on paper, a very good constitution.

Constitutions do a lot more than codify rights...they spell out specific functions of government and mundane processes, which is exactly some of the areas where the UK system has had problems of late, and which are generally pretty easily resolved under a written constitution. The issues of enumerated vs unenumerated rights is only a very very small piece of evaluating whether a written or unwritten constitution is superior. Not just the USSR but UK have enumerated written down rights fwiw, I'm actually not familiar with any country that has no rights of citizens written down in any form at all.

Mundane roles are not the issue and are the least compelling reason to have a written constitution.  Written constitutions are just a set of rules that can and are being gamed.

[Sheilbh]

Just seen the video of a Labour MP telling Johnson to tone down the "Surrender Act" and "traitor" language, pointing to the plaque in honour of Jo Cox (and let's not forget there's been at least one conviction for terrorism for a man plotting to kill an MP and many MPs now have police protection ) and said the death threats many MPs receive are using his language.

Johnson's response: "I think Mr Speaker, I have to say Mr Speaker I have never heard so much humbug in my life."

Christ.

Edit: Also the Government's new position is that "it will assume MPs have confidence in the Government and its Brexit strategy if opposition parties do not table a vote tonight. A spokesman for the PM said: "It's put up or shut up time". But the spokesman would not say the PM would resign immediately if he lost and would not say when a general election would take place if the government was brought down."

......

Edit: And just saw a Tory MP saying there's a "fifth column" in Parliament

Edit: And there's some loyalist Tory MPs coming out on the record and criticising his response on the Jo Cox point.

[OttoVonBismarck]

Mundane roles are not the issue and are the least compelling reason to have a written constitution.  Written constitutions are just a set of rules that can and are being gamed.

All law is just a set of rules that can be gamed /shrug. Guess we should just not have any law or even society at all by this reductivist line of thought lol.

[mongers]

Just seen the video of a Labour MP telling Johnson to tone down the "Surrender Act" and "traitor" language, pointing to the plaque in honour of Jo Cox (and let's not forget there's been at least one conviction for terrorism for a man plotting to kill an MP and many MPs now have police protection ) and said the death threats many MPs receive are using his language.

Johnson's response: "I think Mr Speaker, I have to say Mr Speaker I have never heard so much humbug in my life."

Christ.

Edit: Also the Government's new position is that "it will assume MPs have confidence in the Government and its Brexit strategy if opposition parties do not table a vote tonight. A spokesman for the PM said: "It's put up or shut up time". But the spokesman would not say the PM would resign immediately if he lost and would not say when a general election would take place if the government was brought down."

......

Edit: And just saw a Tory MP saying there's a "fifth column" in Parliament

Edit: And there's some loyalist Tory MPs coming out on the record and criticising his response on the Jo Cox point.

It's a deliberate strategy, playing to the hate some in the leave camp cloak themselves with; taking a page or two out of the Trump playbook if you will.