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In normal times, neither the British public nor even Westminster commentators need concern themselves much with constitutional matters. That is one of the virtues of having no written constitution. But in these far from normal times, we are all about to learn much more than we might like about the Salisbury Convention, the Sewel Convention, the Good Friday Agreement, and even “confidence and supply” arrangements.

These issues are already producing a lot of sound and fury, in Parliament, Holyrood, Stormont and the daily press. What that noise most probably signifies is that the public will be asked to vote again, sometime during the 18 months left of the Article 50 divorce process.

Boris Johnson, the foreign secretary, may be right when he says the public is “fed up to the back teeth” with voting, though the increased turnout on June 8 suggested otherwise. Nevertheless, more voting is the only way to deal with constitutional logjams in the British system.

“Salisbury” is the first convention to have raised its head. Talk that the House of Lords might consider blocking or amending the Repeal Bill or other Brexit legislation has prompted immediate reminders of the seven decades old agreement that the Lords would not block legislation required to implement the governing party’s manifesto promises.

Some argue that the Salisbury Convention does not apply in the case of a hung parliament, leaving peers free to act. However, Labour’s manifesto – although fudged – also promised a version of hard Brexit. That gives strength to the notion that blocking or pressing for softer-Brexit amendments would still be illegitimate.

Given the presence of newly confident and outspoken rebels on both sides of the Commons, the convention may nevertheless be insufficient to discourage anti-Brexit Lords from causing trouble for the government in this way.  But to hold the moral high ground in any such argument, their most logical course will be to demand that the public be consulted, most probably in a general election, which would also have the virtue of forcing Labour to clarify its stance following public debate. Such a “constitutional crisis” is also a potential route to a second referendum.

Disputes over the “Sewel” Convention may well press in the same direction. This agreement states that the UK may not legislate on matters that are part of the devolved competences of the Scottish parliament, unless the Scots give their consent. Nicola Sturgeon, Scotland’s First Minister, will be anxious to find and exploit nationalist issues through which to strengthen her position following a disappointing election result.

Given the extent of devolution, the potential for disputes over this issue is huge, especially in the sensitive areas of farming and fishing. It promises to be virtually impossible to hold the line that all aspects of the replacement of European law with UK law fall outside the remit of devolution.

As for the Good Friday Agreement, that is less a constitutional matter than a political one. It promises to hand Sinn Fein a tool with which to pressure Westminster. Under the power-sharing agreement that followed the 1998 Good Friday deal, the UK government is supposed to be a neutral party brokering deals between the unionist and nationalist parties. Whatever arrangement the government strikes with the Democratic Unionist Party (DUP), if any, is bound to cause ructions in Ulster.

And then there is confidence and supply. In many ways this goes to the heart of the constitutional question of the government’s ability to stay in office. Confidence and supply is an arrangement under which another party, group of parties or individual MPs support the government on matters of confidence and budget votes.  A minority Tory government, even with an agreement with the DUP, is vulnerable to losing a confidence or supply vote in the Commons, probably precipitating a general election in which Brexit would loom large.

Count the days: any constitutional crisis that may occur is really an electoral crisis. We will be voting again sooner than you think.

by Bill Emmott | 22.06.2017

Edited by Michael Prest


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