As the turbulent weeks of Brexit court dramas rumbled on, the constitutional lawyer, David Allen-Green had a running joke:
“Remember everyone, constitutional law should not be this exciting”
But when you strip away the intellectual veneer and break it down to its bare essentials, far from making eyes glaze over, I think that the law and politics concerning how we are governed is something we care deeply about.
Namely: who makes the decisions?
This is the question that has always been — ostentatiously at least — at the heart of the Brexit debate. Do we want decisions made in Brussels or only at Westminster?
How strange then, that Brexit-supporters who claim to be advocates of the latter, have actively sought to undermine British parliamentary sovereignty.
In the snap election of 2017, the British electorate delivered a hung parliament that was overwhelmingly against a ‘no deal’ Brexit. When that parliament delivered the will of the people and rejected ‘no deal’ by passing the so-called ‘Benn Act’, the hard-line Brexiteers went nuclear, and tried to thwart that will by shutting down the legislature.
In a unanimous ruling, the UK Supreme Court’s eleven justices decided that Boris Johnson was found to have unlawfully prorogued parliament. Despite its true purpose of thwarting plans to block ‘no deal’ being something of an open secret, the government claimed it was a ‘business and usual’ tying up of one legislative session and preparation for the next. At a time of national crisis, the prorogation was due to last five weeks — three weeks longer than experts said was necessary. It was to be the longest parliamentary suspension since the second world war, with up to 19 sitting days being scrapped, far more than six or so claimed by the government.
On the one hand, one could argue that the Supreme Court ruling was proof that our unwritten constitution — the rules about who makes decisions and how — was coping well under pressure, especially as the eleven justices voted unanimously that Johnson’s decision was unlawful.
On the other hand, merely days before, the High Court had ruled the case was non-justiciable (meaning that they felt it was something the courts couldn’t even get involved in, never mind rule on). Only a few weeks before, legal experts such as David Allen-Green, were putting the chances of prorogation being solved through the courts as very slim indeed.
Whilst I feel encouraged by the Supreme Court ruling, it has also shone a light on two things for me: firstly, just how vulnerable checks and balances in other areas of our constitution are, and secondly how even the most functioning liberal democracy is only ever a few bad decisions away from tyranny.
In an interview before the UK Supreme Court’s ruling, Jolyon Maugham, one of the lawyers involved in the successful legal action described what was at stake.
“How do you feel as a prime minister when you’ve had a little taste of power, uninterrupted by anybody else; where if parliament becomes an inconvenience to you, you can suspend it? If the rule of law becomes an inconvenience to you, you can ignore it?” he asked.
Here’s what concerns me. The events of the last few weeks prove that Boris Johnson, and his hedge-fund chums set to make millions from a no-deal Brexit, only support British parliamentary democracy so long as its decisions go their way.
Authoritarianism isn’t one thing or another. It lies on a sliding scale, and has to start somewhere. It springs from eddies in the wake of public rage. It paints extreme action as an easy solution. It uses vulnerable people as easy scapegoats. It pits the ‘elites’ against the ‘people’. It tests the boundaries of institutions and the rule of law to find and exploit weaknesses.
So, is the British constitution really fit for purpose for the shocks that are set to come?
Maugham’s latter reference related to claims by Boris Johnson’s outriders, and heavily insinuated by Johnson himself, that in order to deliver his ‘do or die’ Brexit on 31st October, he may well ignore the law compelling him to seek an extension to Article 50 to avoid a ‘no deal’ departure from the bloc.
If he simply ignores the law, the Supreme Court would be likely to issue an order that he must comply. If he still refuses, it’s possible that he could be arrested for being in contempt of court. But what if he requests the extension whilst adding unacceptable conditions, or tries to persuade one EU member — for it only takes one — to veto the extension?
I believe that at the heart of our constitutional vulnerability is the royal prerogative — the powers originally invested in the monarch that have been gradually devolved to the prime minister. This gives the prime minister of the day considerable powers that they can exercise unilaterally.
This includes the suspension of parliament, something that the government is being rumoured to be considering again despite the Supreme Court decision. It includes the power to set an election date. The main reason why opposition parties refused to support Johnson’s attempt to trigger an election was fears that he’d set this date for after 31st October thereby forcing a no deal departure from the E.U.
Furthermore, there are concerns that these prerogative powers could be used to disregard the Benn Act through using something called an ‘order of council’.
Crucially, these powers include the prime minister’s responsibility to recommend to the Queen who else can command a parliamentary majority in the event that they can’t. What happens if they simply refuse to recommend someone?
This is a scenario that the badly written Fixed Term Parliament Act could lead to.
Johnson may lose a no confidence vote in the coming days or weeks, but there is — at best — confusion about whether he’d be legally obliged to resign if he lost that vote. Meanwhile Downing Street briefs that in such an event, he’d stay put, raising the spectre of an unelected prime minister who, despite losing the support of parliament, squats in Number 10 Downing Street.
Whilst on one level, the Queen’s eagerness to not get involved in politics is quite right, it also highlights the utter pointlessness of her position, despite a price tag to the taxpayer of some £350 million per year.
So whilst the U.K remains a million miles away from the troubling destination of what could be considered an authoritarian regime, history has taught us that it only takes a few bad and unchecked decisions to travel that distance at light-speed.
It was the American abolitionist Wendell Phillips who said: “eternal vigilance is the price of liberty.” And even in the mother of all democracies, his advice should be heeded very carefully indeed.
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