Prorogation over negotiation

Like many people, I was initially horrified by the news that Boris Johnson is prepared to suspend parliament in order to deliver Brexit by 31 October. It certainly put a damper on the last day of my summer holiday and the Douaumont Ossuary near Verdun was a good place to ponder the stupidity of politicians and the consequences of their actions which impact on the ordinary citizen. But on reflection, I do not buy the kneejerk reaction of those who believe Boris Johnson’s government is intent on driving the UK to a no-deal Brexit. Instead I view it as a gambit to try and force a break in the impasse that has characterised the last two years. This is not to say that the actions of the government should be condoned. It is taking a major risk and those who play with fire run the risk of getting badly burned.

The constitutional aspects

Obviously, I am not a constitutional lawyer but the general consensus of opinion from the experts appears to be that the Johnson government is taking a major risk that could have profound consequences. The UK's constitutional system is based on a democratically elected parliament whose primary role is to hold government to account. Moreover, the British constitution is uncodified and many of the rules which guide it are based on tradition rather than a fixed legal process. Governments have traditionally always played by the unwritten set of rules but a departure from this principle threatens the basis of the current system. As a number of constitutional experts have pointed out, if norms and traditions are not respected they cease to exist and will lead to calls for constitutional change. I would thus not be at all surprised if at some point there are calls to codify a written constitution to prevent this kind of abuse from occurring in future.

Of course the biggest irony is that Brexit was all about taking back control. Whatever happened to that?  In one fell swoop, the Brexiteers have undermined their case, with the scrupulously fair David Allen Green (no Remainer, he) accusing the government of “constitutional cheating”. He goes on to argue that “It is beginning to look as if there will be a constitutional crisis. So far we have not had one about Brexit. There has been a political crisis, and much constitutional drama, but each tension so far has been resolved between the elements of the British state. This prorogation, however, is a direct attack by the executive on parliamentary democracy. It is a cynical device for the government to escape parliamentary scrutiny in the crucial few weeks before a no-deal Brexit is likely to take place. Nothing good can come of this. It is a divisive act when consensus is needed. It is a gross abuse of the constitutional powers of the prime minister. And it breaches a principle far deeper than any constitutional norm — that of fair play.”

Green also makes the point in another Tweet that whilst the government has generated a lot of fake outrage over the reaction to its prorogation decision, there is a whole host of other “constitutional outrages” that have been perpetrated in the name of democracy which have been ignored by politicians and the press.  It has indeed been evident since 2016 that the government is determined to deliver a Brexit at any cost and has ridden roughshod over the UK’s democratic norms in order to deliver it. But this is the only way that it can take a near 50-50 vote split in June 2016 and turn it into something realisable. The damage will only become evident in the longer term. One of the underlying forces driving the Brexit vote was the belief amongst a large section of the population that they had been ignored by politicians. Although the government was never likely to win over hard-core Remainers, its recent actions are likely to alienate reluctant leavers – those who don’t like the idea of Brexit but can live with it if the pain can be minimised. There will be a reckoning from the newly ignored.

History teaches us that it could be profound, albeit a long time coming. One of the most famous prorogations in English history was that by King Charles I in 1629 who ruled for 11 years without a parliament. This was a major contributory factor to the triggering of the English Civil War in 1642 which ultimately resulted in the execution of King Charles and placed significant limits on the power of the Monarchy following its restoration in 1660. It was a long time ago and so what? It is, however, a demonstration that constitutional decisions taken in haste can have huge unintended consequences.

Has no-deal become more likely?

Yes and no. I maintain that Johnson does not want a no-deal Brexit. If even half the concerns pointed out by the leaked Operation Yellowhammer documents are realised, the economic consequences of Brexit could be profound. This is not a good platform for a general election, which I still believe is a likely prospect before year-end. So why is Johnson prepared to take such a gamble?

I may be guilty of applying logic to an illogical situation, but here goes. Johnson was elected as Tory leader on a platform to deliver Brexit. If he fails, his credibility is shot but if he delivers without a deal, his chances of winning an election are also shot. So he either has to get the EU to change its mind on amending the Irish backstop or persuade MPs to vote for the Withdrawal Agreement that has already been rejected by parliament on three occasions. His strategy of apparently excluding parliament from Brexit discussions may partly be designed to send a message to Brussels that he is serious about leaving without a deal. In my opinion this is unlikely to be sufficient to persuade EU leaders to change their mind at the summit starting on 17 October. It is likely they will take the view that a no-deal Brexit is a bigger problem for the UK than for the EU27, so if Johnson wants to plunge the UK over the cliff edge, that is his problem.

Parliament will of course be in session again by this time (it is scheduled to reconvene on 14 October). At this point, Johnson says that the only way the UK can avoid a hard Brexit is if MPs agree to ratify the deal negotiated by Theresa May (perhaps made more palatable by some tweaks at the summit). Unless MPs can somehow force the government to take a no-deal Brexit off the table, they may have little choice but to comply. Cue the triumph of Johnson diplomacy which he celebrates by calling an election, campaigning on the basis of the PM who delivered Brexit. We thus should view the prorogation as a signalling device to terrify MPs as much as sending a signal to Brussels.

This is a high stakes poker game and the higher the stakes the bigger the chance of losses. It is thus possible that it could backfire if the EU refuses to bend, or an insufficient number of MPs are prepared to play along. After all, why should Labour MPs want to give Johnson his triumph? There again if they don’t support the Withdrawal Agreement, Johnson holds an election anyway and blames Labour for failing to support the plan. 

Viewed in these terms, the prorogation device is very neat and it has the fingerprints of Johnson’s special adviser, Dominic Cummings, all over it. He has outmanoeuvred the opposition very cleverly. However, Cummings does not have to face the electorate. Johnson does, and when push comes to shove he may be forced to blink to prevent the worst case outcome. Cummings is unconventional and politically fearless. But by dragging the unwritten constitution into the spotlight, he is undermining the UK’s reputation for political pragmatism and tolerance, built up over centuries. This vandalous act is the work of a zealot and the world will not forget. Nor will the British electorate.