Even the middle-brow British press are now havering about a supposed ‘constitutional crisis’ in the UK. The Speaker of the Commons has given notice that, if Theresa May attempts to bring her twice-rejected Brexit deal back for a third (or fourth…) vote, he will be forced to rule on whether that violates the established convention that Parliament may not be asked, in the same session, to vote again on a proposal it has already rejected.
This may be a crisis, but it is not a crisis in or caused by the constitutional order. It is a political crisis of the government’s making.
How do these differ? Almost any constitutional crisis brings a political crisis, but not every political crisis flows from a constitutional crisis. It would be a constitutional crisis in the UK if the Queen refused to give royal assent to a bill that had passed Parliament, or if Scotland unilaterally declared independence, or if owing to austerity cuts the courts ceased to function.
It would be a political crisis if we left the EU without any deal providing for an orderly exit, or if border checkpoints were to be set up again in Northern Ireland, or if the National Health Service collapsed owing to immigration quotas.
In a non-constitutional crisis there can be profound social and economic dislocation, but if the constitution remains broadly effective and regulates the major political organs there is no constitutional crisis. In the present case, the integrity of the UK constitution is not in doubt. Just the opposite: a pre-existing political crisis—a failure of government—has been heightened by the Speaker signalling that he will, if needed, enforce one of the basic rules of the constitution. Moreover, the government acknowledges that Parliament may not evade or abrogate his ruling except by lawful measures provided by the constitution itself.
Of course, no law or convention is black-or-white; they all have vague margins. But there is no doubt that the government may not ram a rejected and unmodified bill through Parliament by bringing it back, week after week, hoping that intervening threats or bribes will eventually bend the house to its will. In that scenario, votes in Parliament would not amount to decisions at all. The rule exists precisely to ensure that does not happen, and it is one of the functions of the Speaker to apply the rule.
However, even in its core, one constitutional rule may conflict with another. Sir Stephen Laws emphasizes such a conflict when he argues, for the conservative think-tank Policy Exchange, that the right of a government to get its way over money bills is also of great constitutional importance. As indeed it is. But that rule presupposes a government that can command a majority in Parliament. To give absolute control over Parliament to a minority whose very survival is in doubt from week to week would be a grave constitutional error.
(Incidentally, Policy Exchange has one of Britain’s very worst records for financial transparency, and it also funds the Judicial Power Project—a parliamentarist’s answer to the far-right Federalist Society in the US. Actually, since Policy Exchange keeps its funders out of public view, it may simply be a branch of the Federalist Society. Or worse. Charity Commissioners, please?)
Behind all this posturing about a ‘constitutional crisis’ is, of course, the fear that Brexit will be lost through delay. There is rank hypocrisy here. Those who say the referendum on leaving the EU must never be revisited, now say that a Parliamentary vote rejecting the Brexit plan—by the largest margin in modern history—must be revisited, and revisited, and revisited, until Parliament gives the answer that a weak and divided government wants to impose on an unwilling country. To allow that really would be a constitutional crisis.