One of the defining characteristics of Britain’s constitution is that it is not one single codified corpus but is instead a living and breathing mechanism comprised of the Common Law, great documents including Magna Carta, the parliamentary process and a series of customs and traditions passed from one generation to the next, in the same way in which the great poetry of Homer was passed between generations in the ancient Hellenic world.
As such, the system has been shaped by multiple generations of diligent, enlightened and virtuous men and women whose way of thinking compliments tradition whilst those who would seek to manipulate the system towards serving their own ends have over the centuries been readily exposed as knaves, cowards or savage idealists.
As part of the constitutional order, parliament is typically prorogued once a year in order to allow for Her Majesty’s government to prepare new legislation. This legislative programme is then read out by the Monarch sitting in the House of Lords whilst peers are uniquely joined by members of the House of Commons.
Because of the struggles inherent in the last Parliament’s programme to deliver Brexit, over two years have passed without a prorogation and Queen’s speech. Because of this, if there was anything which bent constitutional procedure it was the long delay in proroguing parliament under the premiership of Theresa May – not the ‘better late than never’ prorogation of Boris Johnson.
Claiming that there is something constitutionally aberrant about a prorogation whose length mostly covers the autumn party conference season in any case, is strictly absurd. Moreover, as Brexit has been debated to death for an entire three years, it remains inconceivable that any further parliamentary debate on the matter could accomplish anything other than a further delay or even a scandalous abrogation of the people’s will as expressed in the 2016 European Withdrawal Referendum.
And thus one arrives at the real constitutional crisis – the failure of the last Parliament (whose members will largely comprise the new one to be opened in mid-October) to deliver on the results of the 2016 referendum in which a majority of voters decided to withdraw Britain’s membership of the European Union.
In strict constitutional terms, parliament is sovereign and supreme and can therefore repeal any and all legislation of a previous parliament. As such, all referenda in the UK are advisory. This however makes the burden on parliament to deliver the referendum greater than it would be in a system like that in Switzerland or several sates in the US where referenda are legally binding.
Because referenda in the UK are advisory and must remain so due to constitutional precedent, the willingness of parliament to uphold, respect and deliver on the result of a referendum is directly contingent upon parliament’s respect for the sovereignty and freedom of the people. Whilst parliament is a sovereign utilisation, so too is the nation and there is no better representative of any nation than its people.
In a system where referenda are legally binding, legislators working to implement the clauses of such referenda are merely acting as civil servants executing a task. But in the British system, they are doing more – they are acting upon the direct instructions of the people who have made a sovereign decision through a peaceful democratic process.
Inversely, by trying to stop Brexit, delay Brexit or debase Brexit, the outgoing Parliament has shown its utter contempt for the people by failing to take their instruction based on the concept of majority rule and universal suffrage.
Therefore, the legislative crisis surroundings Brexit has not been the result of a constitutional crisis but rather its origin is a crisis of trust. Respect for the sovereignty of the people has become part of an evolving constitution that the outgoing Parliament sought to discard in the most flippant of ways.
Although prorogation at this time does not guarantee that Boris Johnson’s government will deliver on its pledge to respect the will of the people, it at minimum shows that Boris Johnson is willing to offer a symbolic gesture to the people which at least hints at the fact that the outgoing Parliament’s position has been one based on contempt for the people rather than trust in the people’s sovereign decision.