Mr Johnson occupies Downing Street but he is a prisoner of a Remainer parliament and the rule of lawyers. Has the Brexit beast been caged by the forces of Remain? Could it spring from that cage to devour its tormentors soon? Victor Hill speculates.
A prorogation too far
At about eight thirty on the sunny morning of 28 August a dapper-looking gentleman in a pinstripe suit boarded a British Airways flight from London Heathrow to Aberdeen. He was carrying a smart attaché case. Few, if any, of the other passengers on that otherwise quite ordinary flight could have imagined that the attaché case contained a document so pregnant with political import that it would plunge one of the oldest democracies in the world into an unprecedented political and constitutional crisis.
The man in question was none other than Jacob Rees-Mogg MP, the Leader of the House of Commons. He had been despatched by his boss, British Prime Minister Boris Johnson, to attend an audience with Her Majesty Queen Elizabeth II at her summer residence at Balmoral Castle in Scotland. The purpose of the audience was formally to request the prorogation (i.e. suspension) of parliament for a period of just over four weeks from 10 September to 14 October.
According to Mr Rees-Mogg’s own account of the audience, he was graciously received by the Monarch in the library at Balmoral as he clutched the instruments of prorogation. He summarised the details of the document to Her Majesty who then uttered the word “Approved”, whereupon the audience was terminated. The Leader of the House was then offered light refreshments by staff of the royal household and repaired to London on a late afternoon flight. Thus, indeed, does an ancient and infinitely subtle unwritten constitution effortlessly purr along like a well-polished Bentley…
Except that, as we now know, there are unsightly skid marks all over the road…But before we get to all that, let’s just consider the context of this prorogation…
The parliamentary session which was supposedly prorogued with much histrionics in the wee hours of 10 September had run for nearly 820 days – since just after Mrs May was returned to office in June 2017 – longer than any other session for 400 years. The expressed purpose of this prorogation was to facilitate a new Queen’s Speech – that is the formal opening of a new parliament by the Monarch in which the government sets out its legislative agenda. It is entirely natural that a new Prime Minister might wish to set out his legislative stall early in his premiership. Moreover, parliament is always prorogued during the party conference season (September-October, the ruling party holding its conference last) – and that has never before been contentious. Let’s also be clear that there was no law that stipulates that the prime minister must provide reasons for the prorogation in the instruments of prorogation, nor how long a prorogation should last.
Mrs May’s parliament had become obsessed with Brexit to the exclusion of almost everything else and had neglected pressing domestic issues. Mr Johnson’s prorogation was just five days longer than Mrs May’s prorogation of last year, purportedly to allow a little extra time to prepare the new Queen’s Speech.
If we go back to the Belle Époque before the First World War, parliament sat for only five to six months maximum a year. No doubt those were more unhurried days when gentlemen (they were all posh blokes) wished to return to their country piles for a spot of huntin’ shootin’ n’ fishin’…
Right up until Mr Blair’s administration parliament rose from mid-July until after the party conferences were concluded in mid-October. Mr. Blair, however, discombobulated by tabloids writing about “MPs’ three-month holiday”, decided to recall parliament for a fortnight in early September. Like many of his acolytes, Mr Blair was obsessed by the modern delusion that successful people are constantly breathlessly busy. (In my personal experience, the opposite is the case – truly successful people are calm and spend much time in reflection).
During that fortnight before the conference season, little of any consequence has ever been achieved, although the Palace of Westminster renovation programme has been disrupted to no useful purpose. Most dedicated MPs of all stripes don’t want to be in Westminster unless they can attend to serious matters of state, either in the House itself or in Committee. Rather, they want to be in their constituencies where (call me old-fashioned) they can make a real difference to ordinary people’s lives by interceding with ministers on their behalf. (When a British MP writes to a minister of the Crown, that minister is legally obliged to respond). Every day that an MP is lolling on the green leather benches is a day away from the people they represent.
Moreover, it is quite normal that the British PM, of whatever colour, should represent the country abroad whether by meeting EU leaders or addressing the United Nations in New York without being required to jet back in the wee hours for an emergency session of the House of Commons. (Boris Johnson’s interesting speech about AI at the United Nations General Assembly on 24 September was entirely eclipsed by the Supreme Court’s bombshell on that day). Very few democracies require the head of government to spend so much time defending the government’s record in the legislature as the UK does; five additional days would make very little difference.
As it turned out, the Liberal Democrats and Labour were able to conduct their party conferences in Bournemouth and Brighton respectively, but the poor old Tories spend their three days in Manchester in tense expectation of a motion of no-confidence at any moment…
As we know, on 24 September the Supreme Court ruled that the prorogation of parliament was “unlawful” (which is not the same as “illegal”, as I shall explain). Lord Sumption, a former Supreme Court Justice who is sometimes described as the most intelligent man in England (he moonlights as a medieval historian), told the Today Programme on BBC R4 on 25 September, that if he had been Attorney General, he would have advised the Prime Minister that the prorogation was entirely legal.
Because it was legal when it was granted by HMTQ. What happened was that the Supreme Court, in its infinite wisdom, acting as a constitutional court (which was not its intended purpose when it was convened just ten years ago), retrospectively changed the law. Very few commentators, let alone the great British public seem to have understood this.
How UK law is made
The government’s defence to the Supreme Court was that the prorogation was based on precedent. This was previously confirmed by the English High Court. The Supreme Court then decided to create a new legal test over prorogation in general. This entails that prorogation is no longer a matter for the government to decide and for the sovereign to approve; rather it has now become a matter than is justiciable under an entirely new set of rules laid down by the Supreme Court.
Mr Johnson’s government has accepted the right of the Supreme Court to do this even if it has expressed the view that it was mistaken (in the sense that it was both unnecessary and unwelcome because of its constitutional implications). It will fall to a future Parliament to decide if Parliament wishes to continue with the approach set out by the Supreme Court or if it wishes to legislate to change the rules enumerated by the Supreme Court.
The British constitution famously relies on a web of checks and balances. The constitution is unwritten – that means that it is embodied in various Acts of Parliament, court decisions, the rules or standing orders of parliament and precedent.
The constitution can now be amended in three ways. First, an activist Supreme Court can amend it through a ruling, as occurred on 24 September. Second, an Act of Parliament can change the constitution such as Mr Cameron’s Fixed-term Parliaments Act (2011), which has taken away from the PM the right to request the Queen to dissolve parliament at will. Thirdly, the executive can change the constitution by entering into treaties with foreign powers, though these are normally subject to confirmatory acts of parliament.
Regarding the third of these, the entire Brexit issue arises because, over more than 45 years, successive British governments have ceded powers to the EU such that British law itself is subsidiary to rulings by the European Court of Justice. The executive has, by virtue of the Royal Prerogative (by which the powers of the monarch have been inherited by the Prime Minister), the power to make treaties and to declare war without parliamentary approval – in theory. Mr Blair thought it necessary to win the support of the House of Commons to endorse British participation in the invasion of Iraq in March 2003. (The fact that he secured support on the basis of a false prospectus is another conversation). Then the busy Ms Miller took the government to the Supreme Court for the first time in December 2016 to ensure that the Brexit process be subject to parliamentary approval. The issue then was the need for an Act of Parliament to authorise the letter of notification of withdrawal under Article 50 of the Lisbon Treaty.
There is a continuous tension between the three pillars of the constitution – the executive, the legislature and the judiciary – and that is healthy in a democracy. Parliament scrutinises the executive and frequently succeeds in changing policy. The courts regularly adjudicate on government decisions, and sometimes find them wanting. Governments grant themselves discretionary powers in new Acts of Parliament, and ultimately they have control over the state’s purse strings.
But the ruling by the Supreme Court on 24 September makes the entire royal prerogative – the obscurer part of the constitution – judiciable. If a private citizen (the busy Ms Miller in this case) can bring a case that overturns the prerogative of prorogation, why could not a citizen in future bring a case against the use of the royal prerogative to appoint a prime minister? That could work both ways, of course. The appointment of Jeremy Corbyn to lead a so-called Government of National Unity (now dubbed a Gnu) if Mr Johnson’s government falls victim to a vote of no-confidence, might itself turn out to be judiciable. The Supreme Court might then take upon itself the right to set out detailed rules for how PMs should be appointed,
If this is indeed a constitutional crisis, the moment of maximum discomfort is barely three weeks away.
Mr Johnson’s government revealed proposed modifications to Mrs May’s Withdrawal Agreement on Wednesday (02 October) by terms of which the undemocratic Irish backstop will be neutered. The existing deal negotiated by the former Prime Minister was defeated in the House of Commons three times – and Mr Johnson has said it is dead.
The UK is now proposing that Northern Ireland should leave the Customs Union along with the rest of the UK but should remain in the Single Market. But that would still require customs checks and the EU is uncomfortable with the idea of a porous border that could become a paradise for smugglers. What is new is that the UK wants the Northern Ireland Assembly (which has not sat since 2017) to have the right to vote on its membership of the Single Market every four years, starting in 2021. Critics argue that if Stormont were to vote to leave the Single Market – because it wished to maintain regulatory alignment with the rest of the UK – then that would necessitate a hard border which would be, supposedly, in contravention of the Good Friday Agreement (1998). For now the most important point is that the Democratic Unionist Party (DUP), which has 10 critical seats in the House of Commons, is on-side.
Another problem for the Europeans is that Mr Johnson does not want to pledge to maintain identical EU social, environmental and labour regulations, as Mrs May was prepared to do. Even if they were to accept a degree of divergence of UK regulations from EU standards that would likely stymie the scope of any future trade deal to be agreed between the UK and the EU.
If the EU cannot consent to the new proposals, and Parliament fails to ratify the new deal, then, according to the Prime Minister, we shall leave with no-deal on 31 October. The problem there is that, thanks to a partisan speaker giving control of the parliamentary agenda to the House itself during the week of 02 September, the Benn Act forbids the UK from leaving the EU on 31 October without a deal.
On pain of….well, that’s not quite clear…
According to the Benn Act, if a deal is not agreed between the UK and EU by 19 October, and MPs don’t vote in favour of leaving with no deal, then the prime minister will be legally obliged to request the EU to grant another Brexit “extension”. Although it is not guaranteed that the EU-27 (and particularly the French) would consent to this. So we can identify four possible scenarios of how the next three weeks will play out.
First scenario: Boris gets a deal. Boris Johnson told the Tory faithful in Manchester on Wednesday (02 October) that there was every chance of getting a new deal with the EU. If that happened and the House of Commons endorsed it before 31 October, there would be no need for an extension. On Wednesday, the details of a new proposed text were revealed. As of Thursday evening, the mood music coming across the English Channel and the Irish Sea was nothing to dance to. Furthermore, even if the EU agreed to the Boris deal, it is questionable that it would get through the House of Commons. Mr Corbyn described Mr Johnson’s deal as “worse than Mrs May’s deal”. I would put the chances of this scenario at less than 40 percent. If it does happen, however, we might expect the pound and the UK market to soar.
Second scenario: Boris gets round the Benn Act designed to block no-deal Brexit by means of a legal loophole. This would be to argue that the European Withdrawal Act #1 (2017) trumps the European Withdrawal Act #2 (2019). If there is no new deal, and the prime minister refuses to seek an extension there is likely to be another almighty legal battle. Cabinet ministers have said the government will obey the law, but the prime minister has said he will not ask for an extension under any circumstances. It has even been suggested that the prime minister could request an extension but at the same time tell the EU to ignore his request. The ruse, according to Lord Sumption, would be unlawful. (That word again!).
The default position is still that the UK will leave the EU on 31 October at 23:00 GMT. Leaving without a deal (aka a Withdrawal Agreement) means the UK would immediately exit the customs union and single market. Many politicians and businesses say this would damage the economy as supply chains are disrupted. Others argue that the risks are exaggerated. The risks of civil disorder here are very high.
Third scenario: An early general election with a limited extension. A general election is almost certain to be called once we get past 31 October but it could be triggered before then. It takes a minimum of 25 working days for an election campaign to take place from the moment is it called.
There is still going to be a Queen’s Speech on 14 October in spite of the Supreme Court’s ruling. If the Queen’s Speech is defeated then a general election must follow which would most likely take place on 07 November with the UK still inside the EU. It is just possible that Mr Johnson might swallow his pride and ask the EU to extend until the election is concluded (so, say mid-November). But if he does that he will have the Brexit Party breathing down his neck throughout the election – and the Leave vote could be split. Conversely, the Remain-inclined parties are quite likely to form some kind of electoral pact (as the Lib-Dems, Greens and Plaid Cymru did at the Brecon & Radnor by-election on 01 August). This strategy, then, is fraught with danger for the Tories.
Even if the Queen’s Speech is passed, the House of Commons might be asked again by the government to back an early general election. That requires a two thirds majority in the House of Commons. Or, the government could propose a short new law specifying the date of an early general election which would require only a simple majority.
The prime minister could even call a vote of no-confidence in his own government pre-empting the opposition from doing exactly that. There has been much speculation that Labour would table such a motion with the support of the SNP. If a vote of no confidence is carried then there would then be a 14-day period to see if the current government – or an alternative one with a new prime minister – could win a second vote of confidence. If there is no evident consensus on who might lead the GNU then a general election would automatically follow.
Fourth scenario: Cancel Brexit altogether by revoking Article 50. Clearly, this would only be possible after a change of government since there is no way that any Tory prime minister could do this. The Liberal Democrats have said that if they won a majority in the House of Commons in the next election (a very big “if”) the first thing they would do would be to revoke Article 50 and cancel Brexit. A Labour-SNP-Lib-Dem coalition government might decide this is the best option.
The state of a nation
There has been much talk about the sorry state of British democracy and the constitutional crisis that has overwhelmed it – but the reality is that Britain is managing a massive change in its international relations without violence and without social disorder, even if there is a high degree of acrimony about, not least in the House of Commons. The agencies of state are functioning normally and the economy (remarkably) is in fine fettle.
The constitutional stasis results from the simple facts that Mrs May fouled up the June 2017 election and Labour subsequently became a Brexit chameleon (Leave in the north and Remain down south). If the Tories under Mr Johnson do not win a majority in the forthcoming election then Brexit will most likely be scrapped. Therefore, the general election will be dominated by the Brexit issue.
But if Brexit is cancelled then a very large number of people (including many who voted Remain) will conclude that their votes do not count and that all real power resides in the hands of the remote globalist elite. That will undermine democracy, which relies on informed consent, forever.
As the great Bette Davies said: Fasten your seatbelts, it’s going to be a bumpy night![i]
[i] All About Eve (1950).
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