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The UK’s Political Constitution and Brexit, by Sir Stephen Laws

The UK Constitution is best understood as political, rather than legal. That is the substance of the difference between our so-called “unwritten” constitution and a written one.

  1. I have been asked to explain what it is about the UK constitution that has caused, or allowed, the UK political crisis that you have all been watching.

Based on a presentation given at the International Congress at Jesus College, Oxford , on 16 September 2019,


  1. The UK Constitution is best understood as political, rather than legal. That is the substance of the difference between our so-called “unwritten” constitution and a written one. In the UK, the rules that count all derive from the political imperatives that incentivise compliance with them; and that is their ultimate source, and the only way they are enforced.
  2. Partly for that reason, any description of the UK constitution, and of how it is operating at the moment, can only be framed as a political commentary.
  3. I want to explain more about how the UK’s political constitution works. But before I do, I need to set out the important features of the Brexit story in relation to which the UK’s political constitution has been operating.

The Brexit context

  1. For the purposes of this discussion, these it seems to me are the important elements of the story. 
    1. In June 2016, the UK held a “Remain” or “Leave” referendum on the UK’s membership of the EU, and “Leave” won (by 51.9% to 48.1%), even though a majority in each House of Parliament was in favour of “Remain”.
    2. In January 2017, the Supreme Court ruled that legislation was required before the Government could serve notice to withdraw from the EU under Art 50.  Parliament then, with very large majorities in each House, passed legislation that gave legislative authority for the Art 50 notice to be served.
    3. In March 2017, the UK government served the Art 50 notice that fixed the date for leaving as 29 March 2019, and so set a two-year deadline for negotiating its withdrawal arrangements.
    4. The EU insisted that only exit terms could be negotiated within the two years. A non-binding framework for a future relationship could be settled in that period, but could not be turned into a binding treaty until after withdrawal in 2019.
    5. In May 2017, there was a general election called by Mrs May with a view to strengthening her electoral mandate for her negotiating position. The result was inconclusive and reduced the Government’s majority in the House of Commons so as to make it reliant on the votes of DUP MPs – the largest loyalist party in Northern Ireland – and also on members of her own party who had not abandoned the idea of stopping Brexit.
    6. Although most members of Parliament had been elected in 2017 on a commitment to honour the referendum result, there was plenty of scope to argue about what that meant. The Government argued that “no deal “would be better than a “bad deal”, but for many MPs no deal was thought, rightly or wrongly, not to be a realistic option.
    7. After the election, the Government introduced a Bill into Parliament that provided for the legal consequences in domestic law of leaving the EU in March 2019. It provided for legal continuity if the UK left without a deal. It allowed the Government to implement any deal that was reached by using powers to make secondary legislation.
    8. The Bill became law in June 2018, but it had been amended in Parliament to provide that a withdrawal deal could not be ratified or implemented without an affirmative vote in the House of Commons, together with the passage of further primary legislation to implement it.
    9. It, therefore, ensured that the only outcome for which there was legal cover was a no-deal exit. The power to implement a deal under the Act had for all practical purposes been removed. But nor did Parliament insert a mechanism in the Bill for Parliament to try to stop a no deal.  All it provided was a duty on the Government, if a no-deal seemed imminent, to submit its proposed way forward for debate – but not decision – in the House of Commons.
    10. Since then, there has been a determined effort – by the Parliamentarians who had failed to get a no-deal decision mechanism into the Bill – to reopen the decision to create one by non-legislative means. But this, so far, has proved incapable of achieving any more than extensions of the Art 50 process.
    11. A draft withdrawal agreement and framework for a future relationship was agreed by the UK government with the EU in November 2018 – subject of course to approval by the House of Commons. Since then, these two proposals have been rejected  (in one form or another) by the House of Commons on three separate occasions between January 2019 and March 2019. The main, but not the only sticking point was the NI Backstop It was widely seen in the UK as just a transparent device for trapping the UK in a subservient status to the EU indefinitely.
    12. The third defeat was on 29 March 2019 (a short extension of the Brexit deadline had been agreed to 22 May).
    13. After that the then Prime Minister willingly, but ostensibly at Parliament’s insistence, applied for a further extension and accepted one until 31 October 2019, having committed to UK participation,  in the meantime, in the European Parliamentary elections.
    14. Talks began between the U.K. Government and opposition parties, with a view to the making of a fourth attempt to get the withdrawal agreement approved; but these broke down and the PM announced a basis on which she would make a fourth attempt without agreement in those talks. It soon became clear it would be unacceptable to the Commons.
    15. The EU Parliamentary elections in May 2019 provided big wins for the Brexit party – the party of no-deal Brexit. The PM, having lost the support of her party, announced her resignation. She was replaced by Mr Johnson at the end of July.
    16. Mr Johnson’s policy is to negotiate a better deal – without the NI Backstop – but to leave the EU (with or without a deal) on 31 October 2019 – whether or not he is successful. Mr Johnson’s dilemma is this: 
      1. On the one hand, there is a majority in the House of Commons that claims to oppose a no-deal exit, and it has the assistance of a less than impartial Speaker in finding ways to obstruct one, even though it is the only exit provided for in domestic  law.
      2. On the other hand, asking the Commons to approve any new deal he manages to agree, unless it has very substantial concessions from the EU, would risk submitting himself to the same fate as his predecessor, as well the likely annihilation of his party at the polls.
    17. The House of Commons has now managed to secure the passage of a Bill by Parliament, against the wishes of the Government. It is intended to force Mr Johnson to apply for a further extension to 31 January 2020 and to accept any alternative extension offered by the EU.
    18. He says he does not want to comply with it. He will seek to find a legal way not to, or to ensure that the EU will not grant an extension. It is quite possible he will find one.
  2. He has also said that the right thing to do now is to put the question of what happens next to the electorate in an election, which could have occurred on 15 October; but those opposed to him have the power to block the holding of an election, and have done so twice.

The UK constitution analysed in political terms

  1. So, how does a political constitution work in that context?
  2. Before I explain, I need to make clear that I am not just someone who analyses the UK Constitution as political rather than legal. I am also someone who thinks a political constitution is preferable to a legal one. I cannot tell you that everyone accepts my analysis. I can give you only the view from the school of thought to which I belong.
  3. From my side of this argument, resolving conflicts through the admittedly uncertain and messy process of practical politics is preferable to resolving them by the imposition of solutions through the exercise of judicial or any other sort of legal authority. I think this is particularly true if any imposed solution would take the form of conferring authority on an exegesis of an historic text, often written with little (if any) foresight of the detail of the conflict it is being used to resolve.
  4. The political approach can be messy, but ultimately, I say, it ensures solutions that address the substance directly, rather than indirectly by trying to categorise a new problem as equivalent to an old one for which there is already supposed to be an answer. I am also mindful of a quotation from the book “the Dignity of Legislation” by Jeremy Waldron-

“Machiavelli warned us, almost five hundred years ago, not to be fooled into thinking that calmness and solemnity are the mark of a good polity, and noise and conflict a symptom of political pathology”.

  1. One sub-plot that is never very far below the surface in the Brexit debate is the contest between those who would argue in favour of a legal UK constitution – or who suggest that the UK system may already have become one – and those, like me, who continue to assert the dominance of “politics” in our arrangements.
  2. One reason this issue is never far below the surface is that the EU itself undoubtedly has a legal constitution. Brexit has brought the two conceptual models, and their proponents, into conflict.
  3.  Interestingly, it is also an issue that is encapsulated in the deadlock over the Irish Backstop. For that, the EU want a “written-constitution” style solution that deals with all possible future situations. The UK would prefer a solution that solves any problems politically as they arise, and with democratic input at that stage.  The UK Government do also now appear, somewhat late in the day, to have recognised that their preference is also what the Good Friday/Belfast agreement necessarily requires.
  4. The purpose of constitutional arrangements, including those of the “political constitution” in the UK, is to confer legitimacy on political decision-making: to secure “loser’s consent”. Our “political” constitutional arrangements have developed to promote – but do not, of course, guarantee – good leadership, collaboration, compromise and consensus building, and also to prioritise those things over reliance on mere authority to justify the exercise of power.
  5. Other systems have similar objectives, but seek to secure them in different and, in my view, less effective ways. Some systems – most other systems – use the separation and balancing of different powers, and then they enforce that principle with entrenched legal rules.
  6. That is not the UK method – which is why I say it is best analysed as “political” rather than “legal”. In the UK, the location of power is not as important as the ability to have political – sometimes invisible – influence over its exercise.  I am not saying that this feature is absent from other systems. It is probably common to most of them. In our system, though, it is the dominant principle.
  7. In the UK, the ultimate source of authority in the state is the sovereign head of state – The Queen; but She has very little practical influence over its exercise. Indeed, the need to keep Her – as the focus of national loyalty – out of politics is actually one of the important incentives in the system to ensure that politicians find political solutions to political conflicts.
  8. The UK constitutional arrangements contain different formal mechanisms from which the influence afforded to different institutions is derived. These include, for example, veto powers. But the most important factor in how these formal powers are exercised is not their legal limits. Instead, it is the extent to which the political process will accept their exercise as legitimate in particular circumstances.
  9. The effect is that, in practice, the exercise of political power is shared and becomes a collaboration between all those with influence over how it is exercised. In that way too, importantly, legislation is not, in practice, an exclusive function of a legislature consisting of the two Houses of Parliament. It is a function shared between those Houses on the one hand and the Government on the other. Each has a formal role in the process, but that role is just the foundation for the practical influence they exercise and is the incentive to collaborate.
  10. In practice, and in normal times, the Government controls the legislative initiative – only Government can propose Bills that are likely to reach the statute book. It has control of the timetable in the elected House and normally of a majority there too. The two Houses concentrate on exercising a scrutinising and revising role.
  11. Similarly, with executive actions. They are not the exclusive concern of the executive – to the exclusion of Parliament. Parliament does often, in practice, engage in a form of advance scrutiny of proposals for executive action; but it also has a more significant retrospective role in providing accountability for executive actions; and that includes accountability for the use of executive powers in the implementation of legislation and for its effectiveness once enacted.
  12. An obvious example of how political legitimacy is more important than formal powers is the House of Lords – the second chamber in the UK Parliament. It has some very wide powers which in practice it seldom (if ever) exercises to the full. The House’s self-restraint in the exercise of its formal powers is explained by a straightforward recognition that a decisive exercise of power by an unelected chamber will seldom in practical political terms be capable of being justified as legitimate. The use of argument and persuasion is preferable, but the House’s formal power to delay or sometimes block legislation does give it a right to be heard.
  13. When, at the beginning of the 20th century, the House of Lords did use its formal powers to overstep their then accepted boundaries, that proved sufficient to trigger and legitimise a reduction in the House’s formal powers.
  14. Similarly, there is, in theory, an ultimate executive veto over legislation passed by both Houses, but it has not been used for over 300 years. Control of the initiative over legislation has been sufficient in practice to ensure that the Government needs to approve, or at least acquiesce, in all legislation. The legitimacy of a use of the veto would be constitutionally questionable both because it has not been used for so long, and because it would require the Government to ask for a personal intervention by the Monarch.
  15. What all this means is that, there is absolutely no assumption in the UK constitution that just because something is legally within an institution’s powers, it must be entitled constitutionally to do it. But overstepping the boundaries has not, at least so far, been thought justiciable and for the courts.
  16. This can be pejoratively described as a reliance on “a gentleman’s agreement”; but in fact, the principles are more hard-edged than that. The – usually accurate – assumption is that there will always be a political price to pay if you seek to insist on using your powers beyond their normally accepted, conventional limits. If you rely on the extent of your legal authority alone to force through a chosen outcome, rather than using leadership and politics to secure it, that outcome is less likely to be regarded as legitimate, and so is less likely successfully to achieve its desired objective. It may also provoke a resort to the same tactics, and similarly usually unused formal powers by  your opponents – with potentially serious or unpredictable results.
  17.  In normal times, self-restraint in the full exercise of legal powers and in relying on authority – rather than persuasion – to resolve political conflicts is kept to a minimum because of the political price to be paid for it. The more controversial a matter, the higher the price for it may be. There may, for example, be a price in terms of Parliamentary time. Using up more Parliamentary time restricts the amount of it available for other controversial things. Or a price may have to be paid be in terms of using up political capital. A government can only get involved in so much controversy before it begins to look overbearing or incompetent.
  18. There is also that Pandora’s box element to all the factors in the UK constitution that promote restraint in the exercise of formal powers.  The incentive to stick to well-used and accepted processes is very often the unpredictability of the political consequences of departing from them: the risk of what resorting to the unusual might provoke and legitimise by way of response.
  19. Of course, it is impossible to mention Pandora’s box in the EU context without recalling the quotation from the Labour Foreign secretary, Ernest Bevin, in 1950, about a proposal for the UK to join the European Coal and Steel Community (a precursor of the EU). “If you to open that Pandora’s box. You never know what Trojan Horses will jump out”.
  20. As a result of all this, the UK’s constitutional processes are flexible enough to mould themselves to fit whatever outcome wins the political battle for acceptance and legitimacy. So, the battle does not exist entirely within the process and cannot be determined by it. On the other hand, winning the political battle for acceptance and legitimacy is much more difficult if it involves having to justify departures from the normal accepted processes.
  21. In Brexit we have seen an issue in which many politicians have managed to convince themselves that the political risks of the outcome they don’t want outweigh the political risks of losing legitimacy by abandoning the self-restraint that is a normal part of the process.
  22. Furthermore, in the UK – maybe it’s the same everywhere – if you want to build a consensus against an idea, it may be difficult to build it around why it is a bad idea, or indeed around what would make a better one. It is usually easier to build a coalition of opposition by saying “You cannot possibly like the irregular way it is being done.”

The contest between Parliament and Government

  1. What we have in the case of Brexit is a conflict between the Government and a majority in the House of Commons, which is now competing with government for control of UK policy on Brexit, and trying to give legislative directions on what it should be.
  2. This cannot be resolved by resort to a “separation of powers” rule.
  3. In a system with two democratically elected components of the constitution – the House of Commons and the Government – each with overlapping powers and responsibilities, you might have thought that conflicts between them would be common and that there would be a clear mechanism for resolving them. They are not, and there is not 
  4. One of the most fundamental principles of the UK constitution is “the confidence principle”. That is the idea that elections to the House of Commons produce a sort of electoral college for government, but one with oversight of government throughout its term. It is a capacity to work in collaboration with the House of Commons in carrying on the functions of government that determines who is appointed to government. A government is expected to remain in office only for so long as it can “command the confidence of the Commons” and so retains the means to implement its policies. 
  5. If that relationship breaks down, either the government needs to give way to politicians who are better able to command the confidence of the House, or there needs to be another election to establish a new basis for creating a relationship that will satisfy the principle.
  6. So well does this principle normally work in practice that it has often been wrongly criticised for producing an excessively docile Parliament. That, though, is misconceived, because it is the essential virtue of the system that it peacefully ensures that, most of the time, the majority of MPs will be happy to agree with the Government’s proposals or to accept its leadership;  but, equally importantly, that Government will always  wish to avoid asking Parliament to approve proposals that Parliament will find it difficult to accept. The public only sees the political battles over the things where consensus cannot be achieved. But the incentives I have described produce consensus in most things, and Parliament has considerable influence over what Government decides to do.
  7. So, a government holds office because of its relationship with a majority in the House of Commons and, by doing so, shares the democratic legitimacy of MPs so long the House’s confidence in the government is not withdrawn. But, at the same time, the democratic legitimacy of MPs themselves and that of government are really mutually dependent. It doesn’t flow only one way from MPs to Government. It also flows from Government to MPs.
  8. That is because the democratic legitimacy of MPs themselves depends largely, in practice, on the colour of the government which they promised the electorate to support, or for whose actions they told the electorate they were accepting, or would accept, accountability.
  9. One of the constitutional fault lines that has been exposed by Brexit is between those, like me, who assert  that it is this interdependence that is  the conceptual underpinning of the system, and those who prefer to believe that all the democratic legitimacy rests with the House of Commons and that is then lent or delegated to the Government. The legitimacy, they think, can then be withdrawn – not just in its entirety for an election or change of government as I think – but potentially also in a piecemeal fashion, as it suits them,  policy by policy: so as to enable government functions to be micro- managed through legislative directions to the executive.
  10. In normal circumstances the Commons would not seek to use legislation to do that. It would fear that, in doing so, it would alienate opinion by an unconventional departure from normal process and the irresponsibility of creating paralysis in the nation’s governance. It would shrink from leaving Government, as a tool of Parliament, acting according under instructions from the House of Commons and so no longer accountable for its actions. The practical difficulties of a deliberative assembly taking over national governance in that way,  legislating to force Government to act in a way that is incompatible with its key policy and programme ought to be obvious.
  11. In addition to the confidence principle, I need to mention three other relevant principles of the UK constitution.
  12. The first is Parliamentary sovereignty. This is the doctrine that there is no limit on what can be done by legislation enacted by Parliament – a process that by convention, as I have said, requires a collaboration between the Government and Parliament.
  13. It is a concept that has been much misused to justify the views of those who assert that the House of Commons has a monopoly on democratic legitimacy. It is though, the principle that does succinctly articulate the political nature of our constitution, as well, I think, as a universal, if uncomfortable, truth: Politics will always trump law.
  14. The second principle is that the courts should not call into question proceedings in Parliament. This is a fundamental principle and should mean that the courts do not involve themselves in the relationship between Parliament and government – which is conducted through such proceedings.
  15. This too has been misappropriated – selectively – to support the assertion of an ultimately unchecked constitutional primacy for the House of Commons, and at the same time to justify ad hoc and non-justiciable exceptions from normal Commons procedure to benefit those who claim to oppose a no-deal exit. There has also been a blurring of the distinction between Parliamentary sovereignty and this other principle, in so far as it secures that the House of Commons is the master of its own procedure and cannot be judicially challenged, as I have mentioned, for any defect in its processes.
  16. Thirdly, so far as principles are concerned, there is the dualist approach of UK law to international law. This means that international law does not form part of domestic law except so far as it is specifically adopted into UK law by an Act passed in exercise of Parliamentary Sovereignty. This principle prevails even though the domestic legislation passed when we joined the European Communities – now the EU (and amended since for subsequent treaties) incorporated the EU Treaties into UK law.
  17. The rules of international law under which the UK is a member of the EU, or may cease to be one, and the rules of domestic law that require UK courts to treat that as a feature of UK domestic law, have to be treated as part of two separate legal regimes. Those two regimes need for practical purposes to march in step, but in theory they could diverge. Although there is plenty of room for argument about what would be needed in domestic law to make that effective, theory says it must be possible.
  18. An aspect of this third principle is that foreign relations are primarily a matter for the government, which of course Parliament is able to call to account in reliance on the confidence principle. But they are still, as everything else is, a matter on which Parliament can legislate in domestic law in accordance with the doctrine of Parliamentary Sovereignty. There is no, even theoretical, exclusion of executive functions from the legislative powers of Parliament.
  19. And so, to Brexit. Why does it appear to have caused such problems for this system? How did we get to where we are?
  20. The origin of the problem is that the relationship between Government and Parliament has been undermined – as a relationship in a partnership of two often can be – by the interpolation of a third party. In this case, the third party is the electorate in the form of a referendum result. There is not – and never has been – a majority in either House of Parliament for the UK to leave the EU at all, let alone to leave with no deal.
  21. For many years UK Parliamentarians failed to confront and address a divergence between their own broad consensus that EU membership was in the UK’s best interests and a widespread view – as it turned out a majority view – amongst the electorate that it was not. The divergence became so politically salient in relation to UK politics generally that the politicians decided they needed a referendum – in the campaign for which they expected to be able to present and win their case for continued E.U. membership with the electorate. But they failed to do so.
  22. The Government was politically bound by that result. They (as I have explained) make all the decisions on which the electorate in practice decide who to vote for. Its only option was to do with deeds something other Parliamentarians had to do only with words – to accept the result of the referendum  – and so to put proposals to Parliament, as it would never normally do, that it knew Parliament was unhappy to accept.
  23. Everything else you have seen flows from that. The government has been fatally weakened in its negotiations with the EU by having to negotiate from a different script with Parliamentary opinion at home from the one it needed for its negotiations with the EU.
  24. There have been other extremely unhelpful attempts to introduce additional third parties into the relationship between Government and Parliament, notably, in breach of the principle I’ve already mentioned, the judiciary. There’s plenty that could be said about that. But the tension between the referendum result and the majority in Parliament is the biggest problem. That and the fact that 2017 election, as an attempt to produce a House of Commons with views that lined up with those of the electorate in the referendum was a spectacular failure
  25. It would be wrong too to ignore the disruptive, third party role that the EU has also chosen to play – from the side-lines.
  26. The whole negotiation has been complicated by the rigidity of the process provided by Article 50: with its tight deadlines, and the insistence of the EU on having the clock set running before beginning to negotiate – and then adopting an inconsistent willingness to keep it running whenever asked to.
  27. The truth of the issue at stake is that there is no middle ground between being in the EU and not being in the EU. Our systems – indeed most political systems – rely on being able to find something to give to every side involved in a political conflict to enable them to accept what they have to give up.
  28. The EU perhaps understandably – but, in the view of many in the UK whose views in favour of leaving have been hardened by the process, unforgivably – have exploited that tension beyond what was necessary or, in my view, wise, either in their interests or in ours.
  29. The propositions it expected Parliamentarians to accept have been predictably, and perhaps calculatedly, impossible to accept from the beginning. But the UK Government cannot escape blame for having failed to point this out earlier and more forcefully. So, we had, in particular— 
    1. A transfer from a system with an exit mechanism (Art 50) to one without one (the Backstop).
    2. A rigid prescribed system for cross-border issues in Ireland that ought to have been seen immediately as clearly incompatible with the dynamic and democratic requirements of the Belfast/Good Friday agreement.
    3. An insistence on settling the financial bill first so that it could only be seen in the UK as an exercise in fixing a price for a future relationship before the nature of the relationship could be known – “a pig in a poke”.
  30. Moreover, EU intransigence, and the manoeuvring of the Remain factions in Parliament, has aggravated the problem. Parliament has made leaving with a deal legally impossible without both the House of Commons agreeing to the deal and Parliament passing an Act to implement it. By failing to make concessions at an earlier stage, the EU have now ensured that more needs to be offered by way of concession than would previously have been necessary before this Government is likely to risk the fate of its predecessor and gamble on the Commons accepting a new deal.
  31. The EU seem to have been following the unhappy precedent of using the same negotiating techniques that were employed by the Roman Senate when negotiating the purchase of the Sibylline Books. The small concessions they have been willing to make have been too little and too late and now the intransigence means that if they are not to lose everything they think they have achieved in the negotiation, they need to offer more for less.
  32. The absence of a formal mechanism from the Backstop is a particularly egregious error.  It is an obvious and conventional way out of a political deadlock to offer those who have to give something up the hope of being able to re-open the issue later on. Art 50 itself provides a way out of EU membership – a last resort right to leave. That lack of symmetry reinforced the impression in the UK that the EU were actually seeking to deny the Art 50  right to leave that we are trying to exercise, and so to impose what was described by some as “vassal status” on the UK.
  33. The lack of a true understanding of Northern Ireland issues is another error. Daniel will have views on this. But my own view is that the NI backstop, far from guaranteeing the Good Friday/Belfast Agreement, is actually totally incompatible with both its spirit and its letter. Loyalists in Northern Ireland want the border issue to be settled, but they also see the Backstop as a device to bring about a united Ireland, to which they are opposed; and they understandably think their rights and traditions (which are guaranteed by the Good Friday/Belfast agreement) are being disregarded. They see them as being subjected, without the mutual respect, parity of esteem and partnership required by that agreement, to the rule-making authority of the EU – operating “in cahoots” with the Irish Republic. It is disappointing that the EU – and to be fair at times also the UK government – have failed to understand that.
  34. With these problems and so many permutations in what might form a future relationship between the UK and the EU, there has been a process in Parliament on both sides of trying to use the running down of the clock to reduce the options to two. There are two reasons why that has failed. First, there seems always to be a way to ensure that the clock does not actually run down. Secondly, in the end, you always get down to two options – leave or remain. We end up as divided as ever, and there is no answer to that question that will be acceptable to all that can be produced by asking it again. The glory of the political constitution is its failure to put obstacles in the way of reconciling differences to acquire the widest possible acceptance. Its weakness is that it has no clear way to reconcile the truly irreconcilable.
  35. We are now in a crisis with the confidence principle. We have a government that has lost the confidence of the House of Commons on its Brexit policy but is the only alliance of interests that can command the confidence of the House of Commons on everything else involved in running the country.
  36. The constitutionally regular solution to this situation is an election, which may not answer the question but might have the effect of changing it. And this, I think, is now accepted. An election will occur sooner or later. The question is when.
  37. Unfortunately, the anti-Brexit majority is able to block an election and is doing so because it fears that it will lose it to a Brexit majority. So, it is manoeuvering to have the election on better ground for its own purposes That is where we are – we are watching manoeuvers to find and choose the most favourable terrain for the election campaign to come.
  38. Everything needs to be understood in that light. Claims by the anti-Brexit side that they are stopping a no-deal Brexit, or protecting democracy from a coup, are nonsense. Delaying the election is not needed for that. The truth is that they think they will stand a better chance of winning if the PM has had to accept an extension he is known not to want. He has indicated he wants an election as soon as possible, and so seems to think that gives him the best chance.
  39. Both sides are probably aware that there would be an electoral price to pay for triggering any unnecessary election, but also one to pay for denying the electorate as say after they have come to think they need to have one. The self-serving manoeuvring in the meantime will have its own political cost at the ballot box. So, I think neither side will allow it to go on too much longer, although my own view is that it has already gone on much too long.
  40. The only other way out of all this is a deal in which the EU offer enough to make the risk of offering it to Parliament worthwhile. There is some optimism about that today. I hope it’s justified and that this time the EU do not insist on something manifestly unacceptable.

Sir Stephen Laws KCB, QC (Hon), LLD

The UK’s Political Constitution and Brexit, by Sir Stephen Laws

KCB, QC (hon), barrister. Formerly First Parliamentary Counsel and Senior Associate Research Fellow, IALS (Institute of Advanced Legal Studies). Senior fellow at Policy Exchange.

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