Anatomy of a Fiasco image

Anatomy of a Fiasco

The UK’s membership of Europe has been controversial ever since it was first suggested and certainly since Charles de Gaulle said “Non” to our joining the EEC in 1967. As Brussels today considers the latest Brexit proposal from the British government it is worth considering how constitutional changes tend to follow the law of unintended consequences, and have helped create the mess we are now in.

The current malaise can be most directly traced back to John Major’s handling of the Maastricht Treaty in 1992. Arguably, if there were to be a referendum about our membership of Europe it should have been at this point. The treaty marked the moment Europe morphed from the European Economic Community into the European Union and was a move of profound constitutional significance. Was it an overextension of his legitimate authority for Major to proceed as he did? Certainly, it is ironic that he has been so vocal in opposing the tactics of Boris Johnson when he himself acted in similar manner in finally forcing through the Maastricht Treaty in 1993. It was because of divisions within the Tory party caused by this that party rules were subsequently changed so MPs could be deselected – the power designed to curb the Euro-rebels is what has now been used to deselect Tory MPs who have opposed Johnson’s commitment to leaving the EU deal or no deal.

The next significant constitutional changes were those implemented by the government of Tony Blair. First of these was devolution of power from Westminster. The 1997 Scottish referendum saw 74 per cent of voters supporting devolution. However, this was on a turnout of only 60 per cent so just 44 per cent of the electorate actively voted in favour of devolution. (This compares with the 37 per cent of the electorate who actively voted Leave in the 2016 referendum.) Whatever the pros and cons of devolution it has clearly not fulfilled the hopes of those unionists who thought the creation of a Scottish parliament with significant powers would quell calls for total independence. (With hindsight this hope was always as futile as a parent imagining letting their teenager use the car one night a week would stop them asking for it every other night.) The way in which the debates about Brexit and Scottish independence have become interwoven has been plain.

The Blair government then made the significant constitutional move of the creation of the UK Supreme Court. By taking the highest court of the land out of Parliament (where the Law Lords had previously been the highest court of appeal) it was almost inevitable that the new court would eventually become more political. As we have seen in the recent ruling on the legality of prorogation, the Supreme Court has now assumed authority over the affairs of Parliament. Increasingly the decisions of Parliament are subject to judicial review and the judges of the Supreme Court become – like their American equivalent – effectively the ultimate authority.

The government of David Cameron further extended these constitutional changes by the introduction of the Fixed-term Parliaments Act. This was done as an expediency to secure the support of the Liberal Democrats in coalition government but has had the unintended consequence of holding future governments hostage in the way we now see is the case – the bizarre state of affairs where a Prime Minister wants to call an election but is prevented from doing so even though a majority in the House of Commons do not want him as Prime Minister.

Each of these constitutional steps may have had merit – depending on your political perspective – but clearly each had unintended consequences. If the Fixed-term Parliaments Act had not been introduced there would have been a general election next week. If the Supreme Court had not been introduced the prorogation of Parliament would not have been deemed unlawful. If Scottish devolution had not been granted we might not be so close to Scottish independence as it seems we are. If there had been a referendum on the Maastricht Treaty we might (a big ‘might’!) have settled the ‘European issue’ in the early 90s rather than wrestling with it now.

In the Bible we see clear examples of how the Lord responds to those who overstep the boundaries of authority they have been given. Whether it is Nadab and Abihu offering ‘strange fire’ before the Lord (Leviticus 10), king Uzziah playing the part of priest (2 Chronicles 26), or Ahab appropriating Naboth’s vineyard (1 Kings 21), no one – prophet, priest or king – can act as solitary sovereign.

The UK is a very long way from being biblical Israel but lessons from the Old Testament about the separation and limits of power are salutary. In recent weeks there has been a great deal of argument about which branch of power has overstepped its constitutional limits but the bigger lesson seems to be that whenever the constitution is ‘adjusted’ there will be unintended consequences. Of course, there is nothing sacrosanct about the British constitution. It is within the gift of government to change it. But – caveat emptor – there are always those pesky unintended consequences. No Prime Minister has the power to foresee or change those.

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