Section:GDN 1J PaGe:4 Edition Date:190830 Edition:01 Zone: Sent at 29/8/2019 18:45 cYanmaGentaYellowbla
- The Guardian Fr iday 30 Aug ust 2019
4 Opinion
A
constitutional outrage”, declared the
Speaker, John Bercow ; “a very British
coup”, said the shadow chancellor,
John McDonnell. Not to be outdone,
Nicola Sturgeon added “the day any
semblance of British democracy
died”. Some have compared the
situation to 1628 , when Charles I
prorogued parliament before dispensing with its
services entirely. But Charles I was not, unless the
history books are grievously mistaken, faced with the
problem of implementing the outcome of a referendum.
It is time perhaps to tone down the rhetoric and
consider the facts. The fi ve-week prorogation appears
longer than it is because it includes the three weeks of
the party conference season, when parliament does not
normally sit. Parliament therefore loses two weeks. In
2014 there was a longer prorogation of 20 days , though
that included the period of the European parliament
elections and the Whitsun recess.
But of course the objection to prorogation has less to
do with the time lost than its alleged purpose, frustrating
the will of parliament. That the prime minister has
unreasonably used his prerogative power to advise the
Queen will, no doubt, form the basis of an approach to
the courts. Whether that approach succeeds or not, the
political dilemma remains: that parliament has willed
the end of Brexit without willing the means.
Vernon
Bogdanor
is author of
Beyond Brexit:
Towards
a British
ConstitutionGina Miller
is a transparency
activistIn 2017 , parliament empowered the prime minister to
invoke article 50 by the massive majority of 384 votes.
But in 2019, the Commons rejected the withdrawal
agreement three times. The EU has responded that the
agreement cannot be re negotiated. In logic, therefore,
the only way to implement Brexit is without a deal. Since
every member of the cabinet except for Priti Patel and
Theresa Villiers voted at least once for the deal, they can
hardly be blamed for the fact that a no-deal Brexit now
seems the only logical alternative.
The Commons, it is often said, is opposed to a no-deal
Brexit. But it is also opposed, as shown by its votes, to
a second referendum (which it rejected by an absolute
majority) and membership of the internal market and
the customs union, and it has shown no disposition to
revoke article 50. The only positive policy MPs have
supported is that embodied in the Brady amendment ,
calling for the Irish backstop to be replaced with
alternative arrangements, something the EU declares
it will not countenance. MPs may claim that they are
losing vital sitting days in September and October.
But they have had three years to come up with an
alternative policy. They have failed to do so.
Opponents of the government seek an extension of
the Brexit date. But that is not in itself a policy. Two
previous extensions have achieved nothing. Why should
a third prove any diff erent? Would MPs then accept the
withdrawal agreement? Do they have the leverage to
persuade the EU to alter its stance? Without an answer
to these questions, a further extension is a mere empty
aspiration. And were parliament to pass legislation
preventing Britain leaving the EU without a deal, Brexit
could be delayed for ever, since the Commons would
then be free to reject every deal presented to it.
The truth is that 650 MPs cannot make policy. Only
the government can do that. The role of parliament
is not to govern but to scrutinise those who do. That
is especially the case with the treaty-making power.
Indeed, parliament has not rejected a treaty since 1864.
And parliament is in no position to re negotiate a treaty.
It has never in modern times sought to do so. The EU
can negotiate only with governments, not with a motley
alliance of MPs who are themselves divided between
remainers and soft Brexiteers.M
Ps have rejected the
government’s fl agship policy
without providing any
alternative. It is enabled to
pursue this course because
of the wretched Fixed -term
Parliaments Act. Without that ,
Theresa May could have declared
the deal a matter of confi dence. That was what Edward
Heath did in 1972 when he threatened a dissolution
unless the European Communities bill was passed,
securing in consequence a majority of eight on its second
reading. Had May been able to do the same, the rebels
would either have come to heel or there would have been
a general election. But the threat of dissolution has now
been removed from the prime minister’s armoury.
Once MPs have rejected the fl agship policy of any
government, their obvious recourse is to remove
it and replace it with one more to their liking. That
requires a successful no-confi dence vote and either an
alternative government chosen from the existing House
of Commons or, more likely, a general election so that
the people can arbitrate. But Boris Johnson’s opponents
seem unsure that they could carry such a no-confi dence
vote. So there is an institutional deadlock that threatens
to prevent Johnson from breaking the Brexit deadlock.
That can now be broken only by the EU. In fact I suspect
that the long prorogation is directed as much at the EU
as Westminster, to convince the EU that parliament will
not be able to stop a no-deal Brexit.
Looking at the sorry performance of the House
of Commons elected in 2017, it is diffi cult to avoid
remembering Winston Churchill’s condemnation of
the parliaments of the 1930s as being “decided only to
be undecided, resolved to be irresolute, adamant for
drift, solid for fl uidity, all-powerful to be impotent”.
Parliament has shown itself not to be the solution to
Brexit but the problem.L
ike hijackers of a plane, Boris Johnson’s
ministers are trying to keep everyone
calm by giving as much as possible
the impression of normality. But
there is nothing normal about what
they are doing. They are subverting
our democracy in a way that is
unprecedented.
The Johnson hijackers are saying that the
prorogation of parliament ahead of a Queen’s speech
is no more than a normal convention in our unwritten
constitution. But there is no convention or precedent
for a fi ve-week prorogation. It leaves precious little
time to debate and pass any legislation to mitigate
against the eff ects of a no-deal Brexit , which Johnson
has no mandate for in the country or in parliament.
This goes beyond Brexit, so it is unsurprising that
MPs from all sides are aghast at what Johnson is doing.
This is not about taking back control ; it is about taking
away power from our elected representatives and
concentrating it in the hands of Johnson and his coterie
of shadowy unelected advisers. It is naive to assume
he is doing this simply to get a no-deal Brexit through
without any parliamentary scrutiny. This will set a
horrifying precedent that will mean Johnson will be
able to exercise dictatorial powers whenever he sees fi t.
I and my legal team have been in communication
with Johnson’s legal advisers since early July. They
repeatedly reassured me that prorogation was not an
option for him, and that the whole issue was of no more
than “academic” interest. I was therefore stunned by
Tuesday’s announcement. A ruthless prime minister is
subjecting our unwritten constitution to stresses that
would have been unimaginable a few years ago.
As a country we have more of a political
constitution than a legal one, and as such it operates
via conventions and precedents. I believe th ey mean
that prorogation is not to be used in th is way, and
disagree with the eminent former supreme court
justice Jonathan Sumption when he says this is not a
matter for the courts. A prorogation of this length will
prevent parliament from fulfi lling its statutory duty
to scrutinise any agreement between the UK and EU.
When you add to this the fact that the government
must exercise its pr orogative powers in good faith, I
believe there is a legal principle at stake that qualifi es
for judicial review.
The charge the Johnson government is making
against me is that I am using the courts to subvert
the will of the people. But a no -deal Brexit was
never the will of the people, and at no point during
the referendum campaign did the people authorise
any government to abandon not just parliamentary
democracy, but the laws of the land. Our laws are
ultimately all that protect us from tyranny and before
them we are all equal. Even against the desperate time
constraints , I am hopeful that the courts will be able to
act as a check on Johnson’s power grab.Ver non
Bogdanor
Gina
Miller
Parliament had
failed on Brexit
long before this
prorogation
I’m taking the
prime minister
to cour t to stop
his power grab
Anti-shutdown protesters outside parliament on 28 August
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