Did the flexibility of the UK's unwritten constitution facilitate changes that have made governing almost impossible?
On Tuesday evening last week, Parliament filched the order paper from under the Government’s nose in order to provide itself with more time to think about Brexit. As everyone knows, Parliament has had three years to think about Brexit. It has spent that time undertaking the painstaking job of ruling out all the restaurants on Deliveroo, and will now be forced to stand outside in the rain as the local chippie shuts down for the night.
Of course, the logical thing to do when parliament can’t (or won’t) make a decision or change anything is to change the Parliament, but the Parliament is – thus far – refusing to be changed. In a very important sense, we’re no longer in a constitutional crisis, we’re in a constitutional swamp. There’s a Parliamentary majority to ask for an extension to Article 50, which rides on the back of the (long present) parliamentary majority against No Deal. However, there is no parliamentary majority for anything else Brexit-related, and quite possibly no parliamentary majority for anything at all.
As I’ve previously suggested, the Mother of Parliaments is now in geostationary orbit, and MPs on both sides have indeed broken the Big Electric Trainset in SW1.
How did we reach this point?
Boris Johnson rode a popular wave into Number 10, but the poll bounce he produced for the Conservatives (at the expense of both The Brexit Party and Labour) changed the parliamentary arithmetic not a whit. And like Theresa May, his unhappy (and perhaps relieved) predecessor, he has found the numbers both similarly and singularly unyielding.
His response to the parliamentary reality was simplicity itself: proroguing parliament before it could do too much damage. In this, Boris was advised by one of Westminster’s most able Svengalis – Vote Leave’s terror Dominic Cummings (the old gag about Dominicans, domini canes, “the Hounds of God”, comes to mind). Cummings is ranged against another equally gifted Svengali – Jeremy Corbyn’s brains-trust, former Guardianista Seumas Milne. Although the two men are on opposite sides of the political aisle, much of what follows can be sheeted home to their joint and several contempt for the Establishment.
Neither man has hidden his disdain for the workings of Whitehall or its liberal (UK definition) boosters in the press. Milne famously described The Economist as “the Pravda of the neoliberal ascendancy” while Cummings has derided a number of notable Westminster figures. He described former prime minister David Cameron as “a sphinx without a riddle”, and former Brexit minister David Davis as “thick as mince, lazy as a toad, and vain as Narcissus”. His commentary pulls no punches:
[The civil service] keeps out great people, it hoards power to a small number of people who are increasingly crap. And the management of the whole thing is increasingly farcical, like that of any closed bureaucracy keeping its perks. It cannot manage public services, it cannot deal with counter-terrorism. It’s programmed to fail – and it does.
When Jacob Rees-Mogg first suggested proroguing parliament, what he had in mind was a short prorogation (the standard period is ten days) to defeat a Bill that had passed the House of Commons but not yet the Lords. Or to put it another way, he would have used prorogation reactively – after the Commons did something the Government didn’t like.
This sort of short, reactive prorogation may arguably be dubious constitutional practice but it is not unheard of in recent Parliamentary history. John Major did it in 1997 to delay publication of the “cash for questions” committee report – one of the endless bits of sleaze that proved so damaging to his Government. Based on his own behaviour, Major’s outrage at Boris’s latest prorogation should appear beside the word “confected” in the dictionary.
Johnson, by contrast, opted for a long prorogation, from the evening of Monday 10th September until the Queen’s Speech on 14th October. It was also pre-emptive in that the Commons hadn’t done anything (although no coincidence it was set in motion the day after the “Remain Alliance” announced a legislative strategy to frustrate the Government’s approach to Brexit).
The goal of the prorogation was two-fold. The Government sincerely believes (correctly or not) that there is some movement on the backstop in European capitals. It also believes that further movement is being prevented by the view in Brussels, Berlin, and Paris that either (a) the PM himself will back off from no deal at the last moment or (b) Parliament will find a legislative way to stop it. The prorogation was designed both as a demonstration of Johnson’s seriousness and as a way of stressing his domestic control.
Relatedly, the length of the prorogation is intensely polarising. It is one of the few ways an Executive can impose itself on a Parliament where it does not enjoy a majority. It had the effect of forcing fence-sitters to come out on one side or the other. As soon as Remain-supporting Tories signalled their opposition, they lost the Conservative Party whip, meaning they will not be able to stand for the Tories in the next general election. Given many of them hold seats that voted heavily Leave, they will of course be replaced by Brexiteer candidates. Former Chancellor Philip Hammond’s campaign to regain the Whip is also vanishingly unlikely to succeed. In brief, the Conservative Party Board has the power to write the rules however it feels necessary to make his loss permanent. And in similar circumstances historically – where erstwhile candidates have taken on the might of CCHQ – the litigation record for the Party in such disputes is a merciless clean sweep.
The prorogation thus forced all opposition parties to collaborate; voters are meant to see them as a single side, opposed by one other single side. It suits Cummings for the Tories to be the “Party of Leave” just as it suits the Liberal Democrats to be the “Party of Remain”. It does not suit Labour, however, which is now wedged in a forked stick of its own making. On BBC Question Time last Thursday, Emily Thornberry, Labour’s Shadow Foreign Secretary, was cornered into admitting that Labour’s Brexit policy is to negotiate a new deal and then campaign to reject it in a second referendum. As should be reasonably obvious, this fudge is unsustainable and will mean Labour is eaten alive electorally by both the LibDems and the Brexit Party.
However, for Nigel Farage and Jo Swinson to dine on Labour’s corpse requires Labour to fight a general election, and Milne is far too clever for that. This means we have twice in one week been treated to the spectacle of Labour abstaining on a motion for an election, despite having spent months banging on about how much it wants one. Corbyn is personally still keen, and it is true he has tremendous ability as a campaigner – something that came to the fore in 2017. However, he will be wasted in an election campaign that is only about Brexit. If, however, he can shift the debate onto other issues (as he did in 2017), he has a real chance of making life very difficult for everyone else, even though Boris has opened up a significant poll lead and Labour is threatened on all sides. Milne – aided by Keir Starmer and John McDonnell – thus has to keep pulling him aside and reminding him of his lines. They know there will be a Queen’s Speech full of policy proposals on October 14th, and it is in Corbyn’s ability to articulate policy in opposition to a Conservative manifesto that he’s at his best.
This is because Brexit has exposed the extent to which the UK electorate is both more right-wing and more left-wing than was widely realised. Large majorities support Tory policies on restricting immigration, funding defence, and “Laura Norder” while being socially conservative on the newest rights campaign — transgender issues. Corbynomics, meanwhile — renationalising rail, putting workers on company boards, raising tax on corporations and redistribution “from the few to the many” — is widely popular. A political party that combined national populism with Corbynomics would make bank. Corbyn’s lifelong Euroskepticism is a conduit to keeping “Labour Leave” seats in the Red Column. The party cannot do without him.
However, Labour’s ability to both want and not want a general election – and its ability to angle for a more amenable date (both after the Queen’s Speech and after forcing Boris to go to Brussels to ask for an extension to Article 50) is yet another ricochet off the Fixed Term Parliaments Act.
The sheer novelty of a prime minister whose government can command the confidence of the Commons but whose key policy and flagship legislation cannot achieve a majority in that same House became clear during Theresa May’s troubled reign. For the UK’s Constitution, this is the equivalent of trying to work out a new mathematics in which 2+2=5. The assumption has always been that a Government whose main policy is opposed by a majority of the House necessarily falls. Change that, and everything else becomes unpredictable.
A lot of people still haven’t quite registered how the Act works. Indeed, a lot of people seem to think it’s still just a question of the Government of the day asking the Queen for an election. But it isn’t. Here’s a concise summary of the process:
A general election takes place every 5 years on the first Thursday in May. An early election is only possible if (a) the House of Commons passes (by a simple majority) the motion ‘That this House has no confidence in Her Majesty’s Government’ and, within 14 days, a new or reconstituted government has not achieved passage of the motion ‘That this House has confidence in Her Majesty’s Government’; or (b) the House, by unanimity or, on a division, by a two-thirds majority of all MPs (not simply two-thirds of those voting) passes the motion ‘That there shall be an early general election’.
Both scenarios make things difficult. Either you have to engineer a vote of no confidence in your own government and then hand your opponents a two week opportunity to form a new government (tricky then risky) or you have to secure the agreement of a large chunk of your opponents to hold an election (tricky and unlikely, if you want an election at a good time for you).
The Fixed Term Parliaments Act was one of two terrible ideas dreamt up by the LibDems (a.k.a “the Prosecco Party”) during their ill-starred coalition with the Conservatives. The first terrible idea – replacing First Past The Post (a terrible electoral system) with the Alternative Vote (an only marginally less terrible voting system and the worst of all available improvements to the representativeness of the UK Parliament) was scotched at a referendum. The Fixed Term Parliaments Act, however – designed at the time to make it difficult for the Tories to ditch their junior coalition partner – is the living embodiment of the old lawyer’s saw that the only law always in force is the law of unintended consequences. It means that Boris Johnson and the Conservative Party are in office, but not in power.
And what fun the “Remain Alliance” had with this reality until prorogation kicked in on Monday night. Not only were two election motions defeated, but a Bill (“Benn-Burt”) forcing the Prime Minister to seek an extension to Article 50 was rammed through in the wake of the Speaker once again allowing the Commons to seize control of the order paper. However, in doing so, he overplayed his hand. Nominally a Conservative, John Bercow only holds his seat because the Party never runs anyone against him. The convention that the Speaker holds his seat unopposed is of relatively recent vintage and has not been copied in the best governed of the Commonwealth nations, Australia. Once again Cummings’s ruthlessness made itself felt: the Conservative Party announced it would run a candidate against Bercow at the next election, guaranteeing an end to his time in the Commons and, very likely, the alignment of Britain’s electoral conventions around the Speaker with Australia’s.
To deprive them of the delight they would take in doing him in, Bercow announced his resignation. Bercow is one of many on both sides of the Brexit wretchedness who has overplayed his constitutional hand. The Bill mandating the PM seek an extension to Article 50 is at the very limit of constitutionality and only passed on the Speaker’s say-so. Constitutional lawyers on all sides pointed out the degree to which it impinged on the prerogative and so required what is known as “Queen’s Consent”. However, Queen’s Consent is in the Speaker’s gift and isn’t justiciable. Bercow gave it and that – until the Tories came for his seat in the Commons – was that.
And in case you’re thinking it’s only Remain pushing the constitutional envelope, I have seen multiple suggestions from people who ought to know better that Boris should simply refuse to comply with the new law. That is, he should either not make an Article 50 extension request at all or, alternatively, make it and then undermine it with either a telephone call to Emmanuel Macron or by sending a second and contradictory letter. This, I’m afraid, would be justiciable because it is in clear breach of a validly passed act of parliament. There’s even provision in the legislation for a civil servant to be dispatched to Brussels and obtain an Article 50 extension in the Prime Minister’s stead.
If, of course, the EU27 agree to an extension. The entire bloc is now afflicted with what various Brussels bureaucrats call “Brexit contagion” and Macron in particular wants to see the back of us. If an extension is granted, it will be to hold a general election and nothing more. All the high drama over the past fortnight has done is delay a general election that is at once inevitable and necessary. Of course, the “Remain Alliance” wants to humiliate Boris by making him its errand boy, and at the moment he’s refusing. He has said he will not ask for an Article 50 extension no matter what. If he’s sincere in this, and thinks it will play to his electoral advantage (it would), the only legal thing he can do is stay in office until the October 17 EU Summit, then go to the Queen, surrender the seals of office, and advise her to invite Jeremy Corbyn to form government.
This putative Corbyn government would command a majority to ask for an extension. It would not have a majority to do anything else. That means an election in November or even the first week of December. It goes without saying that the soft brown smelly stuff would have hit the rotary oscillator by this point.
At bottom this is a classic “conflict of visions”. Remainers think Boris is being anti-democratic by proroguing Parliament. Leavers think Remainers are being anti-democratic by trying to overturn the 2016 vote before it has even been implemented. Everyone involved in this tremendous national contretemps looks at the word “democracy” and – depending on how they answer the Leave/Remain question – defines it differently. It occurred to me while watching the on-going Commons omnishambles that the dichotomy maps rather neatly onto “Leave” and “Remain”. Maybe the definition of Hell really is re-fighting the 2016 Referendum for all eternity.
The end will only come with a majority government on either side that can impress its will for long enough that a reversal of its policies after its eventual defeat would be impracticable in the medium-term (like the Thatcher Government managed to achieve with economic policy, for example). Until this happens, we are trapped in a sort of Brexit limbo that – given the electorate is still divided 52:48 Leave:Remain – may not be resolved even by a general election later this year.