Mole hill

Mole hill or mountain?

The Supreme Court has decided. Boris Johnson has acted unlawfully. The eleven law Lords and Ladies leapt into deciding that he incorrectly advised the Queen. This Prorogation of Parliament was found to be wrong.

Has he dug himself into a hole? Is this a media mole hill or a mountain for Boris to climb?

The public judgement has let to a host of quotable headlines: “the decision to advise Her Majesty to prorogue Parliament was unlawful” – “it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions” – “without reasonable justification”.

A variety of cases led to a landmark judgement. In England, Gina Miller appealed an unsuccessful case, in Scotland, Joanna Cherry made more headway with the Divisional Court in appealing a decision by the Scottish Inner House.

Ultimately, the Supreme Court framed three questions. Firstly is the case justiciable, open to their intervention. Secondly what is the extent of parliamentary sovereignty and government accountability.

Thirdly, the specifics of this case were “whether this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification”.

The situation arose through a combination of circumstances which can be tracked back to Spring this year. Theresa May yielded as Prime Minister, the Conservative Party producing a timetable to elect a new leader. The background to that was repeated defeats over the deal that May had agreed, if not negotiated in the accepted sense of the word, with the EU over the terms of Brexit.

One of the side effects was that May did not bring a State Opening of Parliament and Queen’s Speech, normally an annual event outside election years. In her case, May’s 2017 Queen’s Speech had been designed for a two year parliamentary session. Indeed, in April, former Shadow Leader of the House Chris Bryant had called for a Queen’s Speech to be presented. This was repeated by his successor, Valerie Vaz in May this year.

In fact, this had been the longest session of Parliament since the English Civil War. Quite naturally, a new Prime Minister sought to bring a new Queen’s Speech, therefore new session, at the earliest opportunity. The proposal was to do so on 14th October. Prorogation was sought on 28th August.

In years past, the advice to the Queen to prorogue Parliament for a new State Opening and Speech may not have been an issue. Party conference season has been in the Autumn since around 1950. Until 2011, the summer recess has continued until October. This is only the ninth year that Parliament has in fact sat in September, before taking another recess before conferences.

Unsurprisingly, this prorogation for a Queen’s Speech has been unprecedented in modern times. It covers the conference season when we would not expect Parliament to sit, therefore has had the effect of suspending a mid term parliamentary session for five weeks. This may have proved to be a mistake on the part of Boris, giving the Supreme Court a launchpad for its decision.

The State Opening of Parliament has typically led to a suspension of around a week beforehand. In part, this gives time for the government to finalise its legislative programme for the coming year. On the logistical side, it has been a tradition since Guy Fawkes to check for explosives, nowadays other forms of security.

It may be a point worth noting that had this prorogation been judged to be lawful, a general election could have been held before the key EU Commission meeting on 17th-18th October, potentially allowing a new, or existing, Prime Minister the opportunity to conclude negotiations.

It becomes a technicality, therefore implicitly a point of law, that a recess from September to cover the conference season would have meant a net loss of a handful of days of debate due to prorogation.

This brings us back to the Supreme Court decision. It should not have been unexpected that the judiciary might have found a case that they have the power to intervene.

It is, of course, a matter for conjecture whether the decision would have been different had a recess been voted for. As Guy Verhofstadt had pointed out, after the current Article 50 extension had been agreed “Their (MPs) first decision was to go on holiday”.

Paragraph 56 of the judgement provides for their own conjecture: “Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that”.

Paragraph 50 suggests that a shorter period of prorogation “will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive”.

Paragraph 51 extends that: “The Prime Minister’s wish to end one session of Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice”, the key word perhaps being “short”. Paragraphs 56-61 carry a number of references to the time period.

One of the effects of prorogation rather than recess is the capability of other aspects of parliamentary procedure to take place: “Scrutiny committees in both the House of Commons and the House of Lords play a vital role”. Therefore, those committees cannot meet, nor publish reports.

With the benefit of hindsight, it might be that a simple part of the Prime minister’s approach could have been modified: “ It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks”, assuming that repeated references to “five weeks” is a hint to the reasons for the outcome.

It is another matter for conjecture that had Boris identified the the status of a minority government, the inability of a to pass legislation, the importance of being able to present a strong government with clear endorsement to the EU Commission meeting, whether that would have been sufficient justification. A request for prorogation could have leveraged a general election.

Amid the hysteria and rhetoric surrounding Boris’s behaviour, clarity is lost on the legal meaning of the word unlawful: “contrary to or unauthorized by law”. It may be that no law has been broken, simply that the case has not been covered by specific law, therefore a broader constitutional context might need to be decided.

Instead, the Supreme Court has interpreted limits, in its own words: “marking the boundary between the prerogative on the one hand and the operation of the constitutional principles of the sovereignty of Parliament”.

In short, there has been no evidence to support allegations that Boris “lied to the Queen”. In future, a sufficient case needs to me made to justify a prorogation of unprecedented length.

So where do we go from here?

Implicitly, a further prorogation to allow for a State Opening of Parliament and subsequent Queen’s Speech is allowable. However, a general election before the EU Commission summit is now impossible, before the scheduled date of leaving the EU barely possible.

It now falls upon Her Majesty’s Most Loyal Opposition to determine the constraints under which a general election can take place. It might be assumed that a vote of no confidence should be sought immediately when Parliament is reconvened.

Logistics might dictate otherwise. Two previous attempts to bring about an election, therefore taking responsibility and leadership over Brexit policy, have been turned down by the opposition. Although polls suggest that Boris would lose support if Brexit does not take place by 31st October, they also suggest that no other party is strong enough to gain a majority. Perhaps secretly they have confidence in Boris? What of the Brexit party?

Perhaps ironically, the activities at the conferences that have gone ahead might split the Remain vote. Conservatives could benefit from policies not being laid bare at their own scheduled conference next week. Those who have accused the government of “kicking the can down the road” have only succeeded in kicking the can further down the road.

There are also some intriguing possibilities. Given the legal interventions over procedure, could the government bring some of its own? There are almost certainly constitutional question marks and technicalities that are open to challenge.

Watch this space.

Another fine mess

From the outside looking in, the House of Commons has become a comedy. It is hard to pick a genre, farce, slapstick, Month Python – or is it the theatre of the absurd?

The government, even given a confidence and supply agreement with the DUP, is technically in a minority. The opposition don’t want the government but don’t want an election to replace them. Neither do they seem capable of forming a government of their own. However, they are united in opposing a so called “no deal”, yet are unable to formulate a positive message for a way ahead.

The issue is not in fact a final contract but over the Withdrawal Agreement, covering the terms of leaving the EU. This includes setting up discussions for a longer term arrangement covered by an accompanying Political Declaration. Those discussions could take many years.

It seems as though Boris Johnson will not be allowed his policy of keeping the option of honouring his promise to leave the EU on 31st October 2019. Neither can he seek a mandate in a general election.

So how did we get into this mess?

Despite a long history, the start of the crunch point was the referendum campaign of 2016. A simple binary question was presented, to remain in the EU or to leave the EU. Despite the obvious goals, there were a host of players in between them; left wingers, right wingers, strikers and defenders.

Among all of the nuances, the key question was whether decisions should be made on behalf of the British people in Brussels or in Westminster. Obfuscation came from different considerations, whether economic, immigration, trade or indeed any other policy.

A vote to remain was implicitly to accept the principle of ever closer union, exhibited in successive treaties, the future direction of travel having been outlined in the Five Presidents’ report. It is a legitimate position to confirm economic policy constraints imposed by the Maastricht Treaty and to step closer to tax harmonisation, perhaps more so now when the UK government has not been able to deliver on many promises.

A vote to leave was a vote to restore the full sovereignty of parliament, decisions to be made in the UK A former remain campaigner, Theresa May, was later to summarise on multiple occasions, the vote to Leave was to “return to Britain control of its borders, laws and money”.

It is now a matter of history that against the odds, the Leave side won the referendum. The Prime minister who had given the electorate the choice had identified that: “What the British public will be voting for is to leave the EU and leave the single market.”

Although the leaders of the campaigns were both Conservatives, the appointment of the official camps was decided by the electoral Commission. Politicians of all parties made their positions known, there not necessarily being a consistent approach on party lines. Labour, too, had leavers and remainers.

Perhaps it was the first big mistake that David Cameron’s successor chose to exclude the possibility of forming a cross party committee from what had been a cross party campaign. We may never know what was the process that led to Andrea Leadsom not standing in a leadership election run off.

Most would now accept that May also made the mistake of calling an election, making Brexit a party political issue. A third error can be argued to have isolated the DexEU department, the infamous Chequers Agreement driving us towards what has become known as the Withdrawal Agreement, sidelining the David Davies preference for a free trade agreement, also endorsed by Donald Tusk.

A catalogue of other mistakes has littered the route. Nevertheless, other mantras evolved, not least during the 2017 general election; “nothing is agreed until everything is agreed” and “no deal is better than a bad deal”. Critics from both camps of the referendum campaign would probably agree that the deal ultimately presented was a very bad deal for the UK, great for the EU.

So where are we now?

Quite naturally, organised opposition parties are doing their job of opposing a Conservative government with minimal accountability. It is open to conjecture how effective that opposition would be to a cross party consensus group.

The options have fallen into three broad groups; revoke Article 50, be prepared to leave without a deal or to take “no deal” off the table. It would seem to be generally accepted that the “people’s vote” grouping effectively support the first option, in the House of Commons if not the general population.

The election of Boris Johnson as party leader has brought things to a head. It is unsurprising that in making Brexit a party issue, factions within the governing party have ultimately channelled the course of events. The ERG group was opposed to the bad deal. Those who voted to take “no deal” off the table have had the Conservative Party whip withdrawn, or at least suspended.

Media analysis helps to shape impression an language around the issues. Of course the media are on the whole impartial in the sense that all parties will receive proportional coverage. What lies behind those positions?

Revoke Article 50 is a legitimate position. Many in that camp have genuine convictions. Indeed, for a binary question, it is probable that people made a grey decision on a black and white question. Equally, the Leave camp have genuine convictions.

It is natural that those who agree with the decision to leave, whether 100% or 55%, have left it to the government to get on with finding a solution. Of the 48% who were on the losing side, it is also natural that they should express a democratic right to influence outcomes. Inevitably, some will take to public protest.

Perhaps that is why the “no deal” camp have been portrayed as “extremist right wing” with all the associated language. “Crashing out” is far more evaluative than “leaving without a deal if a satisfactory deal can not be agreed”. It is true to say that “leaving without a deal was not on the ballot paper”. It is also true to say that “leaving with a deal was not on the ballot paper”. However, “no deal is better than a bad deal” was an electoral pledge.

By the same token, “taking no deal off the table” can be labelled as a ‘moderate’ position. Curiously, the nominal architect who introduced the anti no deal bill in Parliament is Hilary Benn, a Remainer. His late father was a key critic of a perceived democratic deficit in EU institutions and a focus for many in making their decision to vote Leave.

An amendment to reconsider the Withdrawal Agreement was proposed by another political son, Stephen Kinnock, supported largely by Labour MPs in Northern Leave constituencies. Whether by accident or design, the amendment is reported to have attracted little support in the voting lobby yet has gone through in the absence of government tellers.

So where are we now?

The “people’s vote” camp are represented by a new Lib Dem leader, calling for a second referendum yet refusing to accept a “leave” vote should it happen. Conversely, the leader of Change UK when challenged has said she would accept the outcome.

Remain arguments remain the same. However, cohorts of MPs from different parties have sought some sort of compromise, professing to respect the referendum result.

To leave without a deal is an option that is currently in the process of being removed. Nevertheless, the camp who would keep the option open insist that this is the only way to gain leverage in reopening the Withdrawal Agreement. The benefit is more immediate policy independence with the prospect of falling back on GATT Article XXIV, subject to the agreement of the EU.

Ostensibly in the middle are those removing “no deal” although parliamentary support for this route include the Remain and “people’s vote”sides. The balance that held power over the outcome of the “no deal” vote came down to 21 Conservatives no longer bound by the whip. All were against Brexit during the referendum, a majority Oxbridge graduates, four of them at Oxford with Theresa May.

There is another perspective to consider, that of the EU negotiators and leaders, who have to unanimously agree to a potential extension. If “no deal” has been taken off the table, there would appear to be little or no incentive to reopen negotiations.

The Withdrawal Agreement provides leverage. Barnier is on record as saying that the backstop allows the EU to “put permanent pressure on the negotiations about trade”. The British Prime Minister has little or no room to decline stringent conditions that the EU might impose. The only question for the EU is what terms to impose.

So what is the solution?

Boris may have been put in a position where Parliament does not allow him to honour his word. For the time being, he is also denied the opportunity of a general election. However, this is the route to a way out. If the Leader of Her Majesty’s Most Loyal opposition is to be believed, as soon as the latest bill is in force, then a poll date can be decided, provided of course that a majority of other MPs agree with their leaders on a vote of no confidence along with the old guard cum new rebel.

Under those circumstances, were Boris to win, he can claim a mandate to leave on 31st October, deal or no deal. His first act, following a Queen’s Speech would surely be to repeal the constraints prior to the EU Council meeting on 17th-18th October.

Opinion polls would tend to suggest that in order to deny a Conservative majority, opposition parties would have to come to an electoral pact, the mechanics of which would surely be beyond acceptability for all of the parties involved although a new genre of comedy could be created.

If the polls are wrong, it could take, days, even weeks to form a coalition. Boris could still be Prime Minister attending the European Council meeting despite being in a minority.

In either event, it could be an option for Boris to defy the instruction from the House of Commons

in contempt of Parliament. The last fine for this offence was imposed in 1666, imprisonment in the clock tower being in 1880 although health and safety considerations during renovations might make that penalty unlawful.

We are certainly due interesting, if not historic times. The twists and turns will be simply unprecedented.