brexit stuff

Sometimes it is the cleverest wheezes that come back to haunt you. Boris Johnson’s daring move to suspend the UK parliament, to limit the time for opponents to frustrate his Brexit strategy, has delighted his supporters. Yet even if it proves decisive, Conservatives may still come to rue his contentious but legal gambit. Among Mr Johnson’s allies there are those — his chief strategist Dominic Cummings, for example — who take a revolutionary approach to politics, yearning to refashion the old institutions of state. Rather more of Team Johnson, though, including the prime minister himself, believe in those institutions. Once the fight is won, they imagine normal political service will resume. Jacob Rees-Mogg, the Leader of the House, insists that the British constitution “can bend to a passing storm”. This may be a fond hope. Parliamentary democracy has been irrevocably altered by the Brexit battle. Politics has become so polarised that reaction has largely divided along Leave and Remain lines. A constitutional outrage is now something only the other side commits. Mr Johnson’s opponents see an unelected leader of a minority government suspending parliament for fear that it may block his plan to leave the EU on October 31, with or without a deal. For them this is an egregious and populist assault on democracy to drive through an extreme Brexit that was never on the ballot paper. Leavers argue, with some justification, that many Remain-minded MPs have abandoned the principle of “losers’ consent” and are using parliamentary guerrilla warfare to block Brexit entirely. For Mr Johnson, the extended suspension is simply a fighting of fire with fire. Perhaps as important is that he believes he cannot secure fresh terms from the EU unless the threat of parliamentary sabotage is removed. The reality is more nuanced, but then nuance was an early casualty of Brexit. Many of those Tories now dismissed as wreckers actually voted three times for Theresa May’s Brexit deal. Many of those now assailing parliament for blocking Brexit were those who fought most ferociously against that deal. Underpinning everything, though, is one fundamental fact. This government has no majority. In the 2017 election, voters made clear they expected Brexit to be delivered while denying the Tories sole custody of the policy. Yet both Mrs May and Mr Johnson have tried to govern as if they had the kind of majorities enjoyed by previous Tory prime minister Margaret Thatcher. Rather than bow to the arithmetic and seek consensus, both have tried to defy the numbers. In response, Remainers became equally belligerent. Many of those now fulminating against no deal helped bring this moment to pass by voting down Mrs May’s deal and failing to back any alternative. Conflict between the legislature and the executive is the essence of parliament. What is unusual is the extent of the indifference both sides have shown to convention. With Conservative rebels unwilling to countenance voting down their own government, anti no-dealers sought other paths. They have seized control of the House of Commons’ timetable, aided by an activist Speaker overturning conventions apparently to assist their struggle. These breaches matter less. A government with a solid majority would not be stopped in this way. But Mr Johnson has now responded in a far more heavy-handed manner, using prorogation — the normal suspension of parliament between the sessions — to deny opponents up to five weeks of time. Curtailing a tiresome parliament is a serious escalation of the constitutional warfare. The right response for a government unable to secure its key policy is an election. Sometimes breaking a code can have greater consequences than breaking a rule. Future governments will consider the unwritten codes to have changed. Elections for Speaker will become more partisan and premiers may feel less queasy about suspending an obstructive legislature. Mr Johnson’s move may not be a “coup” but Tories cackling over this wheeze might ponder how they would view a leftwing government under Jeremy Corbyn taking the same step. For a sense of how this can play out, one can look to the US. Enraged by opposition blocking of Democratic judicial nominees, the party’s Senate majority leader abandoned the convention that 60 votes were needed to push through appointments. His change applied only to posts below the Supreme Court. But when Republicans reclaimed control of the Senate they gleefully took the precedent and extended it, so that a simple majority is now enough for that court too. The most recent of US President Donald Trump’s picks, Brett Kavanaugh, was confirmed by 50 votes to 48. The Brexit battle and Mr Johnson’s move in particular have upended parliamentary conventions. Conservatives might like to think politics can return to normal but there is no reset button. Conventions, like virginity, are not easily reclaimed once surrendered. With the boundaries pushed, who can predict what the next premier might wish to disregard? In our increasingly polarised politics, the principle of “whatever it takes” is gaining supremacy. Politics is reduced to the zero-sum game of two sides with ever less common ground. (Some will use this to push for a written constitution, though codification contains its own shortcomings.) There are reasons conventions survive. All sides know that the boot will one day be on the other foot. Conservatives should remember that what goes around comes around.

Robert, you write "Leavers argue, with some justification, that many Remain-minded MPs have abandoned the principle of “losers’ consent” and are using parliamentary guerrilla warfare to block Brexit entirely." Most people forget that when the Referendum Bill was being debated, various amendments were tabled the aim of which was to define the 'winning post' for the referendum. However, the government responded by saying: "Amendment 16 does not make sense in the context of the Bill. The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year. In neither of those cases was there a threshold for the interpretation of the result." Essentially, the understanding on which the Referendum Act was passed was that it would be up to the government of the day to decide on how to proceed after the referendum, it was not self-enforcing and any legislation related to and required after the referendum would require - as for all other bills - parliamentary consent. This is the way that the UK constitution, law-making and political system works. Nothing odd or extraordinary about it at all.  The problem is that the referendum did not define how the UK should leave, and equally important what should be its relationship vis-a-vis the EU thereafter. The proximity of the relationship is defined on EU terms from a set menu (the famous staircase). There isn't much to negotiate here, as the choice is for the UK to make from the set menu. But the problem was that a binary choice became four or five options, none of which could garner a majority either in Parliament or in the country. So sorry, I can't agree with you saying that there was an absence of losers consent. Sure there are remainers still, and I am one, but let's be clear here, what leaving meant was never defined, and much of the parliamentary discussion has been over what form leaving takes. As no deal has come to be the default, it is then that it again becomes 'binary' and so presented with the choice of remain or a no deal exit, many soft-leavers have become remainers - but that was not who they were originally.     

Constitution sucks by some idiot M P

The great 19th-century reforming MP John Bright coined the phrase “England is the mother of parliaments”, and has been misquoted ever since. He never intended the British parliament to be regarded as a global model, an idea that encourages some MPs to acquire a false superiority. Bright would not recognise much of the way the UK runs its parliament today. Its role and function is still based on the idea of sovereignty, as set out by AV Dicey, which is simply the legal fact that parliament can make and unmake any law. In other ways it has changed and continues to, but it is always responsible for those changes. Just a few months ago, the idea of proroguing parliament in the approach to the October 31 Brexit deadline seemed outlandish. But the heat of the battle of Brexit, and the bitter divisions it has created, particularly since the appointment of Boris Johnson as prime minister, has altered that perception. Such shifts are not new. The Duke of Wellington spoke against the Reform Bill in 1830 because he thought the existing constitution was so perfect that he could not imagine any possible alternative that would be an improvement on the system. He subsequently had to accept a different view. So Mr Johnson’s decision to send parliament home for five weeks while his government prepares a new legislative programme is presented by his supporters as a perfectly normal decision, while his opponents claim it is “a constitutional outrage”. In truth, it is neither, but it does represent a further evolution of the relationship between parliament, government and the people. The irony in this instance is that so many of those now most constitutionally outraged voted again and again for the laws and decisions that have facilitated this result. The Fixed-term Parliaments Act was sprung upon parliament in 2010 by the coalition government led by David Cameron and Nick Clegg. It was sold as a means of limiting the power of an incumbent prime minister, who previously enjoyed unlimited discretion up to five years to ask the Queen to dissolve parliament and to fix the date of a general election. Recommended FT Podcast UK political upheaval, Italy deal, Apple apology But the act is silent on what happens if the government loses a vote of no confidence. The Clerk of the House of Commons told my committee that this is a matter of politics, not of procedure. The PM is no longer free simply to call an election, but nor does he have to resign for up to 14 days, and he can try to get confidence back. This has led to a sea change in the relationship between parliament and government. As I warned at the time, the act strengthens a sitting prime minister. Those who voted for it have nobody to blame but themselves that Mr Johnson is now exploiting it. Parliament has also increasingly chosen to let the people decide matters by referendum. This has consequences too. MPs overwhelmingly supported the EU Referendum Act. They voted to put the binary question on whether to leave the EU on the ballot paper. It is at least as much a “constitutional outrage” that MPs are now complaining they would rather not implement the decision without a deal. Unless we abandon referendums in the future, parliament must always be ready to implement a result it does not like. We must accept that direct democracy inevitably trumps representative democracy. MPs also voted overwhelmingly to invoke Article 50, passed the EU Withdrawal Act that makes it possible for the UK to leave with or without a deal, and even voted to allow the government to take control of the date of departure. Parliamentary democracy has been served. Some are still refusing to live with the consequences, but their motives are diverse. Many thought they could undo what they had done, but in the end they will have to come to terms with what they voted for.

David Allen Green

On Wednesday, something bad happened. That was the decision to prorogue the UK’s parliament for up to five weeks over September and October. A prorogation closes down parliament completely: no legislation can be passed and members of parliament cannot scrutinise the executive. Parliament will be stone dead. That this is happening in the short period before Britain is set to leave the EU on October 31 2019 is extraordinary. The departure from the EU, which is likely to be without any withdrawal agreement in place, will be one of the most significant events in modern British history. And there will be no parliament in place for much of the time before it happens. This would be when there would be an intense public interest in the government being held to account, and the legislature able to legislate. How has this come about? The prorogation is in legal form a decision by the monarch on the advice of the Privy Council, an antique term for senior politicians and other notables. In substance, however, it is a decision of the prime minister. Prorogations are what happens when one parliamentary session ends and another begins, marked by the Queen’s Speech announcing new legislation. Usually, they are short and uncontroversial: the parliamentary computer being turned off and on again. But the new prime minister Boris Johnson cannot be using this prorogation for that purpose. It is two weeks longer than is usually the case, and there is important legislation that will fall. There has been a bare assertion that there are proposals to be announced in a Queen’s Speech, but few if any have yet been set out in white papers or with draft legislation. And the traditional autumn party conferences offer no explanation: for those, parliament merely goes into a recess the length of which is voted on by MPs. Parliament still functions — select committees, for example, continue with their work, and MPs can ask written questions — but there are no sitting days. So what can be the reason? The only explanation that makes sense of the evidence and the constitutional means adopted is that Mr Johnson is using prorogation to close down practical opposition to his determination to take Britain out of the EU with or without a deal on October 31. There are two ways in which parliament can check and balance the prospect of such a Brexit. First, it can seek to change the administration by votes of no confidence. Such a process is now largely governed by the elaborate mechanism set out in the 2011 Fixed-term Parliaments Act. But a vote of no confidence needs parliamentary time, and if prorogation runs down the clock there is a prospect that Brexit will come and go before anything results from such a vote. And there is nothing in that legislation which mandates that a prime minister should resign even if parliament passes an initial motion of no confidence; it stipulates only that there should be a further confidence vote 14 days later and a general election as a default. The second way, which is now more likely, is that parliament legislates to oblige the government to request (or accept) from the EU an extension to the Article 50 period. As it stands, such requests (and acceptances) are a matter of discretion for the prime minister, operating through the UK’s representative to the EU. It is possible that legislation can remove that discretion and replace it with a mandatory rule. That would be complicated, and would need to be tightly drafted so as to avoid any wiggle-room by Mr Johnson. But if it were passed, and the EU27 in turn offered (or accepted) such an extension (which cannot be taken for granted), then the matter is removed from the hands of the prime minister. Such legislation would take time — far more than a vote of confidence. Getting legislation through both houses at speed is rare. On a topic as toxic as Brexit, and in the face of government opposition, it would seem almost impossible. Control of the parliamentary timetable would need to be wrestled from ministers, and all parliamentary resources focused on getting a correctly worded bill on to the statute book. Opposition leaders recently met to discuss such legislation. The following day the government put in place the prorogation, robbing parliamentarians of any real chance of getting a measure through smoothly. It could just about be done in the few parliamentary days still available, but the task has been made far more difficult by Wednesday’s constitutional imposition. 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. This prorogation is nothing other than constitutional cheating.