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The constitutional case for Boris Johnson

Published on Newsroom.co.nz (Wellington), 4 September 2019

On Monday, my fellow columnist Rod Oram delivered a gloomy view of British democracy. Alarmed by Boris Johnson’s prorogation of Parliament, Rod echoed the views of those who believe the Prime Minister has chosen a most dangerous path.

Rod correctly listed at least four British newspapers that support prorogation: The Times, The Sun, The Telegraph and the Daily Mail. He also reminded us that two of them are owned by Rupert Murdoch, though I wonder how that affects the validity of the arguments made in these publications.

Other than that, not a single token voice in favour of prorogation was mentioned. We only got lengthy quotes from a Guardian columnist, a Remain-supporting academic, and the Financial Times.

So, to add some balance to the debate, I decided to explore the case for Johnson’s actions.

As Rod points out, a prorogation of Parliament is not an extraordinary idea after more than 340 sitting days – the longest sitting since the Civil War. One could even argue it is long overdue.

Also, a new Prime Minister requires a speech from the throne to lay out his agenda.

Of course, prorogation tactically helps Johnson in his Brexit negotiations with the EU. However, it is well within the rights of the Prime Minister to use prorogation to promote his agenda. Johnson is hardly the first Prime Minister to do so.

I do disagree with Rod’s characterisation of the 2016 Brexit referendum result as “not a vote for a chaotic exit at any cost”. Maybe it was not, but then maybe it was. You could equally argue it was not a vote for an exit only on the condition there would be a deal. Rod is reading something into the referendum result that simply is not there.

Even if we disagree on the nature and meaning of the 2016 referendum, there can be no ambiguity about the 2017 election. “No deal is better than a bad deal” was the Tory mantra, one that Theresa May repeated ad nauseam.

So even if the Brits did not vote in the referendum for a Brexit at any cost, they elected a government a year later that pledged to deliver just that.

The problem that plagued May’s government was she could not live up to the promise. After all, there was no majority in Parliament for ‘no deal’ – never mind the governing party and its Prime Minister had campaigned on precisely this platform!

There is indeed a constitutional dilemma here but not one of Johnson’s making. The difficulty of squaring a referendum with British-style parliamentary sovereignty is a problem he inherited from his predecessors May and David Cameron.

Supported by the British High Court, and aggressively promoted by Speaker John Bercow, Parliament is asserting its right to determine the terms of Brexit. In this way, Parliament has not only asserted itself against the Government (which would be fine and unproblematic) but also against the will of the people expressed first in the 2016 referendum and then reconfirmed in the 2017 election. Parliament is now thwarting the execution of this mandate without seeking a positive alternative.

In his column, Rod quotes an academic: “If our constitution has one overriding principle, it’s parliamentary sovereignty: the government only is the government because it has the support of Parliament.” Sure. But that is not the issue here.

I am generally a fan of direct democracy, but even I have to concede that it is logically impossible to combine Westminster-style democracy with referenda. There can only be one sovereign: Parliament or the people. (We can leave Her Majesty, technically the Sovereign, out of this discussion since the Queen effectively remains neutral in this – and rightly so.)

The situation is further complicated by the ambiguous distribution of powers between the Government and the Commons. In other countries, Parliament leads and controls the agenda and the Government executes it (at least in theory). Not so in Britain. There, the Government controls the business of Parliament. While it is right to say the Government is only the Government because it has parliamentary support, it is the Government that dictates its terms to Parliament.

Parliament, by the way, has not covered itself in glory. Even as it seized control of business from the Government earlier this year (a constitutional outrage, but one supported by the Speaker), it could not agree on a positive alternative. It only agreed not to vote for anything. In this way, Parliament disempowered itself.

This is a constitutional dilemma without an obvious escape path. Until 2011, British Prime Ministers had a nuclear option for such situations. If they could not resolve a conflict with Parliament, they could dissolve Parliament and go to the polls.

Johnson would love to do just that but is thwarted by the Fixed-term Parliaments Act 2011. Another issue he inherited, in this case from Cameron.

There are now several constitutional fault lines in British politics. Between Parliament and Government; between Parliament and the People; within the major parties; between parts of the People and Government.

Prorogation may help Johnson resolve fix these fault lines. It is a relatively mild option since it only cuts five or six days the Parliament would have otherwise sat.

Perhaps Johnson even hopes prorogation will trigger a no-confidence vote against him he would lose. That would allow him to call the election the Fixed-term Parliaments Act 2011 prevents.

Those labelling Johnson’s actions an assault on democracy do not understand the contradictions embedded in the British constitution, which was never designed to accommodate referenda.

If Johnson moves the UK towards a general election, he would do democracy a service because only an election can resolve the conflict between this Government and this Parliament.

Meanwhile, he is well within his right to move Britain towards a Brexit outcome that reflects his party manifesto pledge in the 2017 election.

That is a more nuanced, constitutional law way to look at the British Prime Minister’s actions. Too bad you will not get that from Guardian columnists or Financial Times leaders.

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