I say we wait three years without implementing the court’s ruling, then ask the court if that is still what they think.
– Perry de Havilland
Category: Westminster Parliament
Westminster Parliament. The heart of darkness
Prorogation unlawful
The supreme court ruled that the prorogation was unlawful. It is unclear what the implications of this are, besides that Parliament will sit for more days than expected and that future prorogations will be subject to similar scrutiny as to motive.
We seem to be in an interesting situation in which Parliament is divided on other-than-party lines (it is not aligned with itself). The executive can not pass legislation (at least not Brexit-inclined legislation) because it does not hold a majority. It can not get a majority because the Fixed Term Parliament Act prevents an election. However the speaker allows the (Remain) opposition to pass legislation which appears to bind the executive into specific courses of actions.
It is a very odd situation. Either parties must split and the Great Realignment occur, or else the issue on which they are split must resolve and the parties re-join and continue as they were.
Update: Raphael Hogarth explains the court’s reasoning.
We are oh so far past the stage where all must abide by every corrupt legal nicety
When leaders represent the will of the people – and the laws they are breaking are illegitimate or undemocratic – violating them is nearly always justified in retrospect. As it would be in this case. The Benn Act became law earlier this month because of the connivance of the unconstitutionally partial Speaker, John Bercow. When he allowed the Opposition to pass legislation in Government time against the will of the PM and his Cabinet, 300 years of constitutional precedent was overturned.
The Benn Act was a very English form of coup d’etat, orchestrated by an anti-Brexit faction in Parliament to subvert the clearly expressed will of the people. It is, therefore, necessary for Boris to break it to restore the proper constitutional relationship between Government, Parliament and people.
The David Starkey Interview
The historian David Starkey was interviewed by Brendan O’Neill of Spiked. He compares recent events in Parliament with events in the 17th century:
We’re going through the events of the 17th century as farce. What those people were doing, that noble gentleman I think he was a Scot Nat who fell across the speaker, he was trying to re-enact the role of the Commons in 1629 when the speaker was held down to prevent the proroguing of Parliament at the will of Charles I.
Rather than being suddenly silenced with desperate amounts of business waiting to be dealt with, they have sat for the longest single session since the long Parliament. It was 810 days. It cost one and a half billion Pounds, and they did bugger all. They did worse than bugger all: they buggered things up. What happened? It’s very clear. No legislation of any significance was passed in three years. Not only that, they stopped any decisions being taken. We are in a nightmare. We are in this sealed world that you can’t get out of because we’re bound into it by another catastrophic peice of legislation, the Fixed Term Parliament Act, which looks directly back to the Civil War.
Parliament in 1641 passed an act that it couldn’t be dissolved without its own consent. It then turns into a vicious oligarchy that sits until 1653 when it has to be chased out at the point of a bayonet by Cromwell. That’s where we are.
I think the best feature of all this is that no legislation has passed. Other than that this seems about right. Starkey goes on to discuss the role of MPs, the speaker, and the government.
In legal theory, the members of the Commons are representatives and they have the role that was enunciated in the famous letter to the electors of Bristol by Edmund Burke. “I owe you my discretion; I don’t merely owe you my vote.” That was nearly 250 years ago when there was no democracy and politics was run by a handful of families like the Marquess of Rockingham to whom he was the paid lackey (and by the way the electors of Bristol threw him out). There is a very vague relationship between Parliament and democracy. We have had Parliament for 800 years. We’ve had democracy for less than a century. And the great issue was: how do you reconcile the previous tradition of representative in a non-democratic Parliament with the position of delegate in a democratic Parliament. And the way it was dealt with — this is what all the fuss, all the things that we are talking about: Erskine May, A V Dicey, they all appear at a particular moment of time. They appear in the middle of the 1880s because it’s the 1884 reform act that introduces something like democracy.
But you see we’ve never worked out the relationship between the fact that we’ve got two sovereigns. There is the legal sovereign which is the Crown in Parliament and there is the real, political sovereign which is the sovereign people behind them. But what we did, and this is why Bercow’s behaviour is so disastrous; it’s why Theresa May’s behaviour has been so catastrophic: what we developed thanks to Erskine May and the Parliamentary Handbook and endorsed by Dicey, we developed a whole series of devices. They were conventions that turned MPs from more or less representatives into more or less delgates. And what are these things? They’re party affiliation. They are manifestos. They’re standing on a ticket and they’re being whipped when they’re in the house. That is the thing that binds them to the popular vote. No MP; Dominic Grieve was not elected in a personal capacity. He was elected because he stood as a Tory on a Tory manifesto which promised Brexit. That man did not dissent at the time. His claims to dignity, his claims to acting honourably, are totally false.
There are other rules in Erskine May about the procedures of Commons business which gives the government the basic control of the parliamentary timetable. Otherwise what happens is the house just dissolves into a talking shop. Becuase MPs have refused to vote for any deal: they’re strong in the negative but they’re hopelessly weak in the positive. They can’t agree on anything. We developed a series of conventions in the 1880s that turn MPs into something like the representatives of the people and what has sytematically happened in this Parliament: we have broken those conventions.
Theresa May’s loss of the election and her absurd notion that you can keep people with completely contradictory opinions on a main platform of government policy in the same party broke down the whipping system. Bercow broke down the government’s control of legislation. And you’re left with this chaotic mess.
Later there is discussion of the validity of the referendum result:
All the referendum act does: it specifies the question and it specifies the day on which it will be put. In other words, no protections were built into it at all because George Osborne said, “easy peasy we’re going to win this”. In theory, yes the referendum is advisory because of the sovereignty of Parliament. But that’s the legal sphere. The political sphere was that Cameron said publicly and repeatedly: we will honour the results of the referendum. And the leaflet went to every house in the country. That is political. At the moment the legal sovereign refers itself directly to the political sovereign on a key issue on a binary vote, only a fool would challenge that. And the argument that because it was a narrow vote it doesn’t count: every single general election is a vote of a few percent. The landslides of Blair were all secured with a fraction of the number of voters for leave.
We’ve got degrees of deceit, of chicanery, of double-talk because simply: they did not like the result. They saw it as an act of rebellion.
This all seems like useful context for understanding the impending realignment.
Et tu quoque?
Parliament demands to see all the private messages sent between nine advisers since 23 July relating to the prorogation of parliament (or to Yellowhammer), claiming there might be constitutional issues.
Suppose Boris demands to see all private messages sent between remoaners and the EU, under a similar claim?
Of course, it may not matter in either direction.
– On the one hand, even May only yielded to a similar demand after parliament, in a second vote, held her in contempt (one of the few sentiments I share with them). In Boris’ case, such a vote cannot now happen for weeks – and if it finally does, he might ignore it anyway. Meanwhile, he may exploit the humour of insisting that EU law (GDPR and/or similar) means he cannot comply. It makes an obvious introduction to a speech echoing Churchill on how the 1930s parliaments were
“adamant for drift, solid for fluidity, all-powerful to be impotent”
– On the other hand, Boris may already know whatever a counter-demand could tell him. In the days before Corbyn became its leader, instead of the kind of backbencher that worried its leaders, the Labour establishment, whenever it won an election, was delighted to discover that the UK security services were keeping an eye on their wilder backbenchers (whom they could then head off from their wilder antics before public embarrassment ensued). I don’t see Barnier and friends as the men to keep secrets, despite their passionate belief that there are many things the masses do not need to know, still less decide on.
So I’m more interested in the ‘why’. Mostly, I’m assuming (and hoping) that it’s just a standard insolent PC establishment fishing expedition.
“Perhaps the outrage over the fact that Parliament is to be prorogued – something that normally happens at about this time each year – tells us more about the Remainiac establishment’s state of mind coming to terms with Brexit, than it does about our constitution?” Douglas Carswell
If you want to insist that something that “normally happens at about this time each year” (and is now, abnormally, a year overdue) is an unconstitutional outrage then you need to gather a lot of material to have a chance of finding something you can misrepresent.
However – although I would be glad to think otherwise – it is just possible that the people who are so sure they are the clever ones found themselves on Monday feeling the need of some intelligence. Last week, 102 amendments were tabled to help time out the wrecking act in the Lords – standard parliamentary tactics which the remoaners well understood. But then No. 10 said, “Don’t bother – go get a good night’s sleep”. (Other ways of timing it out or delaying it were likewise left unexplored.)
As regards public opinion, I can see the benefits.
– Now, not just the remoaners but Labour – and Corbyn personally – are incredibly on record: no letting the public decide, no election, and in Corbyn’s case, no more plausible pretence of being different, still less of being brave, but just doing what Tony Blair and the spin doctors tell him like a good party hack.
– Boris, by contrast, now has the perfect out for the negotiations. If he’d negotiated for 5 weeks without the EU-advised act shouting “ignore him” to the EU negotiators, then failure to present a Canada++ deal on October the 14th would be something he’d have to explain. Now, he can throw it in parliament’s face (which won’t bother them but will destroy any traction they might otherwise have had with the public). If he already felt sure the EU’s stubborness meant we’d have to leave before they’d negotiate for real, it was very much in his interest to have the act to blame. And if he already felt sure he’d have to leave on absolute no-deal to reel in the Brexit voters or ally with The Brexit Party, it was wise to make that parliament’s fault, not his choice in rejecting some no-backstop-but-still-smells-fishy deal.
Remoaners and Corbynites may not realise just how big a political price they have paid, but they surely know they need their procedural win to be a real win on October 31st to make it worth it. I hope they feel lazily sure they have Brexit boxed in and it’s all over bar the shouting – that’s their rhetoric – but is it possible that, as Monday progressed, they found themselves really wanting to know what the despised Dominic thought and why Boris didn’t sound more panicked?
(Of course, they’re not alone in that. 🙂 )
Some MPs Leave Parliament
The remainers’ and Bercow’s mutual love is telling. A rowdy lot of student activists at the end, there. Looks like someone needs to come and ask them to go.
Previously, one of these men is more entertaining than the other:
The promise that was never meant to be kept is now the hill they have chosen to die on
It is said of Obama that his every promise had an expiration date. That way of phrasing it seems almost too kind – as if each promise once had value and then lost it after it expired. Some promises are only ever meant to be believed – they are never meant to be kept.
MPs of all UK-wide parties voted to hold the Brexit referendum – but for many, the promise to leave the EU if Leave won was only ever meant to justify remaining in ever closer union when Remain won. The believe that we would have left had Leave won was expected to have great value – to remainers after Remain won, justifying their putting an end to the carping criticism of a minority of MPs and those stupid voters. “We’d have left if you’d won, so shut up” was to be the essence of politics thereafter.
Now, after both major parties campaigned in 2017 on a promise to honour the result, blood has finally been squeezed from a stone – and promises they do mean to keep from Remoaners. Their bill is astonishingly frank (for them) in its determination to give power over Brexit to the EU. Their refusal of an election makes equally explicit their intense desire not to give that power to UK voters. The difficulty of defeating the deep state is that they will not openly stand to fight and so risk being beaten. It’s a sign of how much has been achieved that people so given to deceit are being so open.
I hope Boris, Dominic and others have foreseen, and are masters of, the procedural and constitutional technicalities needed in the next few days between now and prorogation. But, however that turns out, I think their enemies too caught up in this fight to see beyond it. They imagine that, if they can only delay leaving forever, they can get us back to the grudging attitude of a few years ago, when most people did not like the EU but most thought it was as inevitable as bad weather, and was merely an add-on to Britain, not a replacement. I think their own antics are ensuring that that particular Humpty-Dumpty cannot be put back together again.
The game is afoot…
Finally, Parliament gets treated with the contempt it richly deserves.
And now more than ever, we will need the Brexit Party to keep a political knife to Boris Johnson’s throat, or the most likely last minute result will be a sell-out ‘deal’ that delivers the utterly appalling Withdrawal Agreement (“Whether you’re a Brexiteer or Remainer, this is a deal that a nation signs only after having been defeated at war. This is not a deal fit for purpose for any sovereign country.”), probably minus the distraction of the backstop.
Did they think they were the only ones who could break with convention?
Oh, the growlings and the howlings now that Boris Johnson – for which read Dominic Cummings – has asked the Queen to suspend Parliament.
Reaction to Parliament suspension plan
Bercow: “I have had no contact from the Government, but if the reports that it is seeking to prorogue Parliament are confirmed, this move represents a constitutional outrage.”
Corbyn: “…an outrage and a threat to our democracy”.
Sturgeon: “This simply cannot be allowed to happen.”
Tory chairman James Cleverly blandly says that it is merely that the Government seeks “to hold a Queen’s Speech, just as all new Governments do”, but is not fooling anyone and does not seem greatly troubled by that.
It is an audacious move, and it is indeed constitutionally unprecedented. But that’s the thing about breaking precedent; once broken it stays broken. Oliver Letwin, Dominic Grieve, Yvette Cooper, Hilary Benn and Nick Boles were all happy to dispense with Parliamentary precedent in March. Bercow smirked while he betrayed his office to let them do it. Many warned them at the time that what they had done their opponents could also do. They went ahead anyway. And now they find themselves in the position described in a famous quote from A Man for all Seasons, that of having cut a great road through the law to get at the devil only to find that the devil has turned round on them and there is nowhere to hide, the laws all being flat.
Parliament Prorogation
Boris has written a letter to MPs announcing his intention to prorogue Parliament, have a Queen’s speech, and start a new parliamentary session.
This is really winding up all the right people, which means it is probably a good idea.
Guido points out that it only removes 4 sitting days from Parliament, however. Is this enough to put a stop to attempts to legislate to impede Brexit? Will remainers be forced to hold a vote of no confidence? Is it a constitutional outrage or just a normal Parliamentary procedure?
For now I suspect that it will work. Either we will leave without a deal, or the EU will decide that since we really are leaving on October the 31st it can become more flexible.
Update: Boris is on TV arguing that this is just to enable him to get on with the domestic legislative agenda. He says there is plenty of time left to debate Brexit. He comes across as calm and reasonable. His opponents sound screechy and panicked. He’s playing a good game.