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.
