Constitutional or political?
Mike Macnair asks whether talk of a ‘constitutional crisis’ following the election of Boris Johnson as Tory leader is real or illusory
This article does not express an official Communist Party of Great Britain or Provisional Central Committee position. Indeed, it is in part a critique of Eddie Ford’s article, ‘Time to reorient’, in last week’s paper (July 11). Comrade Ford’s article is, in my opinion, insufficiently sceptical of the talk of ‘constitutional crisis’ coming from elements of the ‘remain’ camp and of the media - and in consequence does not get all the way to the Realpolitik considerations which lie behind this, or to the actual constitutional issues that these pose.
On July 23, barring some totally unexpected accident, it will be announced that Boris Johnson has won the vote for the leadership of the Tory Party. Assuming all goes to plan, on July 24 Theresa May will go to the palace to resign, then Johnson will go there to be formally appointed prime minister. On July 25, parliament will go into recess, returning (in theory) on September 3.
Given the scale of Johnson’s notorious dishonesty and opportunism, what will follow is not certain. But Trump’s equally notorious dishonesty and opportunism did not prevent him from following a policy whose main outlines had been indicated in his election campaign. Provided that Trump’s electoral crocodile tears for the plight of the ‘American middle class’ were disregarded, and instead Trump was assumed to share the actual commitments of the Republican Party to tax cuts and ease regulations for the rich and the corporations, to restore male and white supremacy under the cover of religion, and to wage aggressive war in the Middle East contrary to the principles of the Nuremberg war crimes trials,1 the upshot was predictable: Trump signalled he would pursue a right-populist nationalist policy, and that is what has been delivered.
By the same token, Johnson’s right-populist and nationalist policies expressed in his campaign for the party leadership should be taken seriously. He has indicated that he intends to play brinkmanship with the European Union, and to do whatever it takes to get EU leaders to believe Britain is willing to go for a no-deal Brexit if they are not willing to capitulate on breaking the link between the ‘four freedoms’ - free movement of goods, capital, services and labour - to allow British financial and legal services firms free access to European markets without free movement of labour.
To that end, he has announced that he will seek a US-UK trade deal agreed before the exit date, however implausible this seems to others (even the Brexiteer, Liam Fox).2 The point is to show that Britain under Boris will be willing to accept whatever Trump demands in order to have an alternative to EU trade.
For the same reason, Johnson has also refused to rule out adopting Dominic Raab’s suggestion of proroguing parliament (that is, using the royal prerogative to prevent parliament meeting before the October 31 exit deadline) to ensure that the only obstacle to a no-deal exit is the EU capitulating.
Former prime minister John Major and current chancellor of the exchequer Philip Hammond have suggested that they will litigate to prevent a prorogation, on the ground that they would be “protecting the queen” from becoming involved in a “constitutional crisis”.3 These statements in fact indicate the weakness of the political position of the Tory remainers and opponents of ‘no-deal Brexit’. There is not the slightest likelihood that the courts would be willing to enjoin the prime minister against advising the queen to prorogue.
Alongside this, Rory Stewart has offered fantasies of an ‘unofficial session’,4 patterned on the occasion of March 2 1629, when MPs held the speaker of the House of Commons down in his chair to prevent an adjournment, while the Commons passed a series of motions protesting against Charles I’s recent actions. The king promptly dissolved parliament by proclamation (left unpublished for a few days),5 and did not call another one until he was forced to do so in 1640 by the Scots uprising (‘First Bishops’ War’) and inability to pay for the army.6
Much the same was true of Charles II’s extensive use of the prerogative of proroguing parliament between 1660 and 1681. Charles was only forced to call fresh elections in 1678-81 when Louis XIV, king of France, temporarily cut off his subsidies to Charles’ government, and even in that period Charles used prorogations to prevent unwelcome parliamentary actions. Opposition MPs and peers grumbled, but they had no means of preventing prorogation. James II’s only parliament met only in May-November 1685 and, after it started to raise awkward issues, was prorogued repeatedly from November 1685 to July 1687. What followed was a Dutch invasion (demanding a “free parliament …”).
Charles II’s and James II’s repeated use of prorogations led the 1689 parliament to adopt - among the provisions of the Declaration of Right (February 1689), and Bill of Rights (December 1689) - provisions to the effect:
(article 4) That levying Money for or to the Use of the Crowne by pretence of Prerogative without Grant of Parlyament for longer time or in other manner then the same is or shall be granted is Illegall.
(article 6) That the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law.7
To give these provisions effective teeth to prevent prolonged prorogations in the style of Charles II and James II, the Mutiny Acts, which authorised the keeping of a standing army, were until 1879 passed only on an annual basis. The subsequent Army and Armed Forces Acts require annual renewal by parliamentary resolution (the Blair government in 2005 unsuccessfully proposed to remove this requirement, which remains in place).8 Income and Corporation Taxes also require annual authorisation, by passing new Finance Acts each year, though some other taxes have been made permanent.9
The 1689 parliament were not satisfied with purely legal teeth. The 1689 Bill of Rights (article 7) provides “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law” - denouncing thereby the James II government’s seizure of weapons and equipment for full regiments from prominent opposition aristocrats.10 In 1709 ‘Williamite Tory’ chief justice Holt ruled in the ‘Case of the Reforming Constables’ that unlawful arrest, being an invasion of constitutional rights, was sufficient provocation to reduce the ensuing killing of the constable who made the arrest from murder to manslaughter, instantiating the right of forcible resistance to unlawful government action.11 (These principles have since disappeared, with the ‘Reforming Constables’ ruling already abandoned by the 1750s, while the right to bear arms was abolished by the Firearms Act 1920.)
These were political judgments which reflected the fact that stopping the royal executive summoning parliament only when it was convenient to the executive had required a Scots invasion in 1640, a full-dress civil war in England in 1642-49, and a Dutch invasion (with insurrectionary support in England) in 1688.
The first problem with these constitutional mechanisms is that Boris Johnson is not, in fact, proposing to govern without parliament until February 24 2020 when the legal authority for the armed forces expires, or until April 6 2020 when the authority for the main direct taxes expires. He merely wants to use prorogation to postpone the re-assembly of parliament for two months, from September 3 to November 5 or thereabouts.
The politics of this course of action are what makes it problematic. It would certainly be possible for Johnson, after securing a no-deal Brexit by prorogation, to come back to parliament early in November and say, ‘Now let’s have a general election to break the deadlock.’ The Labour Party could not possibly vote against an early general election, which it has been demanding for months. And after delivering a no-deal Brexit, Johnson would certainly see off both the Brexit Party, and the rag-tag remnants of the UK Independence Party. The Labour Party would be more likely to be split, by its right wing hostile to Corbyn and complaining that he did not do enough to stop Brexit. The Tories should be a shoo-in for a clear majority (which is what polls for ‘Johnson as leader’ pointed to at the outset of his campaign). The Times (July 17) headlines: “Johnson plans early election to hit Corbyn.”12
The problem is that in 2017 the polls seemed clear that Theresa May would get a stronger majority by going to the country. In fact, the Tories lost their majority. We can push a little further back as well. Remember ‘Cleggmania’ and the exultation of the press about polls showing Labour being pushed into third place in 2010 - and the reaction to this threat, the large turnout in working class districts at the last minute? Today, the polls are all over the place - but they are certainly unclear. What if the upshot was not a Tory majority, but a Labour victory due to the peculiarities of ‘first past the post’, or even Labour as the largest minority?
The talk of ‘constitutional crisis’ from Major, Hammond and Stewart and others is all excitable stuff, but like Major’s threat of litigation, it strongly suggests that the proponents of this view do not have a parliamentary majority - contrary both to their threats, and to their 17th-century constitutional precedents. If they had a parliamentary majority, they do not need to litigate, or to have an ‘alternative parliament’ meeting. They could on July 23 or 24 suspend the standing orders of the Commons (if necessary) and pass a vote of ‘no confidence’ in the government. The problem is just that they do not seem to have a majority for doing so - as has already been shown in a succession of votes on alternatives to Theresa May’s deal.
It is, of course, possible that discussions will result in the opponents of ‘no deal’ assembling a majority to defeat Johnson on July 23 or 24. To do so would imply bringing down the government, splitting the Tory and Labour Parties, and assembling a ‘national government’ coalition. Even a single ‘no confidence’ vote and an extension of the parliamentary session beyond July 25 would point in that direction.
If it happened, this would not be a constitutional crisis - a crisis in which the failure of the constitutional order is posed. It would be a political crisis, a crisis of political management, working through the normal, but rather rusty, constitutional machinery of votes of no confidence and the reassembly of a parliamentary majority.
But in fact, as I have just said, on every occasion on which this issue has been posed, the Tory remainers have bottled it, and so have the Labour right (with the exception of the micro-groups from both sides who went with the doomed Independent Group/Change UK project).
Underlying this inability to assemble a majority is the same problem which makes Johnson’s early general election idea risky. It is a common understanding both of Tories of all stripes and of the mainstream media (including the ‘quality’ press) that a Corbyn government is a worse threat than a no-deal Brexit. The problem for the Tory remainers is, then, how to defeat no-deal Brexit without risking a Corbyn government.
After the 1809 ‘Walcheren debacle’, some wit wrote, in relation to the failure of the General John Pitt, Earl of Chatham, and Admiral Sir Richard Strachan to cooperate effectively enough to take Antwerp before the French reinforced the city:
Great Chatham with his sabre drawn
Stood waiting for Sir Richard Strachan.
Sir Richard, longing to be at ’em,
Stood waiting for the Earl of Chatham.13
On this sort of analysis, the Tory remainers have kept bottling a proper split from the Brexiteers because they are waiting for the Labour right to make a proper split from the Corbynites; meanwhile, the Labour right are waiting for the Tory remainers to make a proper split from the Brexiteers before they are willing to move.
There is a sound basis for this approach. David Cameron in 2014 employed the Labour right to ‘do the statesmanlike thing’ and defeat the Scottish independence campaign - and, on the very morrow of the result, knifed them in the back with an English nationalist speech, procuring a Labour wipe-out in Scotland in 2015. The consequence of this piece of dishonesty is that the Labour right cannot trust the Tory left not to do the same thing again over Brexit. And the Tory left have to fear that, if they split their party in the hope of avoiding a no-deal Brexit, the Labour right will respond in kind for 2014 by not splitting from Corbyn, with the result that (whatever else happens) the Tory left will abruptly find themselves in the political wilderness.
The plain failure of the Independent Group/Change UK, and Labour’s victory in the Peterborough by-election in the worst possible circumstances (in the midst of the anti-Semitism witch-hunt; after the removal of the sitting Labour MP, jailed for perverting the course of justice; in a Brexit-voting constituency), and the continued severe uncertainty in the polls,14 reinforce the pre-existing grounds for hesitation on both sides.
For Johnson to prorogue parliament requires that the queen should agree. It is, in fact, completely normal for the monarch to agree to such proposals from the prime minister - assuming Johnson becomes prime minster. By convention she is required to act on the advice of ministers.
It is not at all clear that she invariably has to do so. In 1975 the then governor-general of Australia, Sir John Kerr, refused Labour prime minister Gough Whitlam’s request for Senate elections, sacked him and instead installed Malcolm Fraser, leader of the Liberal/Country Party opposition, as caretaker prime minister to run a general election (which, unsurprisingly, Fraser’s party won). The last UK use of prorogation to achieve a legislative manoeuvre was by the Attlee government in 1948 (to pass the Parliament Act, further reducing the powers of the House of Lords).15 But the queen would need a pretty good reason to refuse to act on the advice of the prime minister, and this really could be a ‘constitutional crisis’.
There is a constitutional issue here, in that the supposedly ‘advisory’ Brexit referendum is being made to override the will of the parliamentary majority - but if the Tory remainers again bottle bringing down the government, there will be no actual will of the parliamentary majority, but merely conflicting Commons resolutions; and technically the act of parliament passed in response to Gina Miller’s litigation requiring a parliamentary decision on article 50 means that the legal default position is no-deal Brexit on October 31.
Equally, the queen could perfectly well, without creating a constitutional crisis at all, insist that Johnson face a vote of confidence in parliament before he is appointed prime minister. The constitutional case for appointing him to the premiership is that he leads the largest party in the House of Commons and commands a majority by virtue of the Tories’ coalition agreement with the Democratic Unionists. If there is actually a big enough split in the Tory Party, this case fails. So, in spite of the short time-scale before the scheduled recess, there would be nothing at all unconstitutional or crisis-making about putting Johnson to a vote of confidence before he is appointed as prime minister.
Suppose the queen insists on a vote of confidence before Johnson is appointed premier. If the Tory remainers are finally willing to bring down the government, he loses, and this takes us back to political crisis, not constitutional crisis, as I discussed earlier. Suppose - which seems to me most likely - the Tory remainers again bottle it, Boris gets his vote of confidence (for the moment) and is appointed PM. The result is then actually ‘business as usual’.
If Johnson gets a vote of confidence and is appointed PM, there would be nothing ‘anti-democratic’ or unconstitutional in the queen accepting his request to prorogue parliament - because the Tory remainers, having given him a vote of confidence, would have given him a mandate to conduct the Brexit negotiations as he thinks fit, up to and including a no-deal exit on October 31. I have to say that I think this is actually the likely outcome, for reasons already given.
We would then see a few months of ‘Boris brinkmanship’ leading up to some sort of Brexit on October 31: ie, more of what we have already seen under Theresa May. It might well be the case that some sort of amendment to the ‘Irish backstop’ is, in fact, agreed in order to provide a covering appearance of compromise - such last-minute pseudo-compromises are the normal coin of EU negotiations. The effect would be to kick the actual can - the negotiations for the longer-term relationship - down the road for another two or three years. Since the main concern of the media is to keep Labour out of office, at least until it has got rid of Corbyn and purged the left, and preferably permanently, the fact that there was no real agreement would not bar the celebrations of Johnson’s ‘achievement’ - any more than any significant section of the media has cast the slightest doubt on the ‘anti-Semitism’ campaign of defamation.
In this scenario, crisis-talk serves a real purpose. Back in 2015-16, David Cameron thought he could rely on Labour to deliver a majority for ‘remain’ in the referendum - and then dump on them with English nationalism, as he had done over Scotland in 2014-15. It would be Labour’s fault, not the Tories, that there was no Brexit, and Ukip would also be marginalised (except in Labour ‘leaver’ constituencies).
This idea failed. Corbyn won the Labour leadership in 2015, and retained it in 2016. The vote went for ‘leave’. But Cameron’s successors have had no idea what else to do with the result. They have kept on plugging away at the idea that ‘Labour needs to get off the fence’ over Brexit. At the same time they have deployed with ever-increasing media intensity the US-originated campaign of defamation round ‘anti-Semitism’, originally devised as a fightback against the anti-war sentiment round the Iraq war (and still employed for that purpose in France and Germany). They are still trying to force Labour into the position of the responsible remainers who can be damned for the eventual failure of Brexit. Crisis talk serves to pull the Labour right in behind the Lib Dems and the Tory remainers and provide yet another reason for a coup against Corbyn, and so on.
Johnson perhaps represents a change here: that is, if he actually goes for a no-deal Brexit on October 31. The result would then be a real crisis, and the government will need to make real plans not just for reopening ports other than Dover, and so on, but also for rationing of food, electricity, etc, transport control, internment of EU citizens resident here, and so on. The question of a national government would be posed again and in a new and much more serious way than it would be posed if Johnson is defeated in a vote of confidence on July 24. This would, however, still not be a crisis of the constitution: it would merely be the application of the war/emergency powers, which have been deployed before (particularly in 1914-18 and in 1939-45 - and continued to 1951). That might be an attractive option for Johnson, with his fondness for Churchillian rhetoric ...
An equally important question is why we have had over Brexit a succession of charades of ‘constitutional crisis’, starting with the Miller litigation and the claim that the judges were ‘enemies of the people’, and going on to the present Major and co hot air - but no actual constitutional crisis which sets the parts of the constitution (monarchy and executive, parliament, judiciary, etc) against each other in real conflict.
There are, I think, two basic reasons for this. The first, which I have already discussed, is that for the Tories in particular (but also the Lib Dems, as is seen in Vince Cable’s 2011 tribunal fees scam16) the primary job of government is to hold the working class in effective subordination. The fear of a Corbyn government is mainly a fear of millions of workers taking matters into their own hands (as has happened on several occasions in the past, when governments believed to be leftist have taken office). Brexit is therefore secondary and not worth a real fight.
The second is that MPs generally - and here including the Labour left as well as the Labour right and the large majority of the Tory Party (I except David Davis and a few others) - have lost all sense of what the constitutional role of MPs is. In consequence, they make little or no serious effort to defend this role, against the executive; against the judiciary; or against the ‘fourth estate’, the corrupt media (in Karl Kautsky’s apt phrase, the käufliche Presse - the venal press), and its instruments, notably referenda.
The constitution based on parliamentary sovereignty grew up on the basis that the consent of the large property-owners in the House of Lords (including the bishops), and of representatives of smaller property-owners in the House of Commons, was necessary for two sorts of decisions: imposing taxes and making new laws. It was on the basis of these very elementary tasks that parliament, taking political power against the Stuart monarchy, insisted on some control of what the taxes were spent on, and hence a degree of veto power in relation to concrete policy and in relation to who the monarch employed as ministers. The mechanisms for preventing prolonged prorogations, which I discussed earlier, were part of this system.
MPs represented either counties or boroughs (urban local authorities). In the unreformed system there were usually two MPs for a constituency; the City of London had four, Westminster two and Middlesex two. MPs were paid, if at all, by their constituencies, and some of these expected fairly full reports from their MPs.17
This was the basic shape of parliament as long as the property franchise was in place. Letting the unwashed masses - the ‘democracy’ - in to vote resulted in a series of ‘modernising’ changes, whose purpose is to reduce both the answerability of MPs to their constituents and their power over the unelected parts of government.
We now operate single-member constituencies, which increase the anti-representative quality of ‘first past the post’ voting, and cast the MPs not as representatives, but as patrons or ombudsmen for the particular concerns of their constituents. The MPs, meanwhile, are handsomely paid - currently £79,468 a year - by the state, not by their constituents. A significant part of their time is devoted to activities aimed at running for re-election, rather than at collective decision-making.
The taxing power is effectively delegated wholly to government, as the level of parliamentary scrutiny of tax proposals is low and largely focused on the headline spin: here, as with referenda, the role of the fourth estate (this time in electoral spin) undermines the elective-representative principle. The law-making power is now largely delegated either to the civil service (and its particular branch - the parliamentary draftsman’s office) or to the Law Commission: originally set up by the Wilson government as a project of codification of the law, this has been ‘captured’ by the legal profession and the lobbyists, creating legislation not really scrutinised by MPs (in so far as it is not merely used by government to kick law reform demands into the long grass).
MPs, then, are there merely to be counted for the purpose of the election of a prime minister, who will in turn appoint a cabinet and other ministers. Our 18th-century ancestors engaged in some effort through the ‘Place Bills’ to restrict the number of salaried ministers allowed to sit in the Commons - the ‘payroll vote’ - but the number has been allowed to creep up and now stands at 109 - or 35% of Tory MPs.
The underlying constitutional issue in Brexit is precisely the conflict between forms of elective representative democracy and referenda steered by fraudulent operations of the ‘fourth estate’, producing ‘decisions’ which then somehow have to be made into real decisions. Would the public have voted, even by 52%-48%, if they had been told that what was on the table was a ‘no-deal Brexit’? We have no idea.
But the MPs have not defended their formal constitutional role as elected representatives - and the reason is that they have completely internalised the constitutional role of the corrupt media, as well as the limitations of their own constitutional role created by the single-member constituency, pay from central government, the ‘political career’, and so on.
A real constitutional controversy about Brexit - or anything else - therefore remains unlikely. For one to arise, we would need a Labour Party which aimed not for winning government, but for constructing an effective opposition and - hence - for fighting for an actual constitutional role for elected representatives l
http://legal.un.org/ilc/texts/instruments/english/commentaries/7_1_1950.pdf, principle VI: “The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).”↩︎
‘Boris Johnson to seek Trump trade deal in first move as leader’ The Times July 15; ‘UK trade secretary: Johnson’s pre-Brexit US trade deal won’t work’ Politico July 15: www.politico.eu/article/uk-trade-secretary-johnsons-pre-brexit-us-trade-deal-wont-work; see also NBC News June 6, ‘This is what the US wants from the UK before it will sign a trade deal’: www.nbcnews.com/news/world/what-u-s-wants-u-k-it-will-sign-trade-n1013081 (essentially, a bonfire of food regulations and the right of US companies to buy parts of the NHS).↩︎
‘Ex-UK PM Major vows to protect queen and avoid constitutional crisis in Brexit row’ Reuters July 10; ‘Hammond warns of “constitutional crisis” as Grieve attacks Johnson’ The National July 13: www.thenational.scot/news/17768093.hammond-warns-constitutional-crisis-grieve-attacks-johnson.↩︎
‘Rory Stewart describes plans for “alternative parliament” to stop new prime minister in event of no-deal Brexit’ i News July 8: https://inews.co.uk/news/brexit/rory-stewart-alternative-parliament-boris-johnson-no-deal-brexit.↩︎
A convenient summary is on Wikipedia: https://en.wikipedia.org/wiki/Bishops%27_Wars.↩︎
www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction. Spellings original.↩︎
On the Mutiny Acts see https://en.wikipedia.org/wiki/Mutiny_Acts; see also Hansard HL, February 20 2019, ‘Armed Forces Act (Continuation) Order 2019’: https://hansard.parliament.uk/lords/2019-02-20/debates/D3FBF488-8BF8-4CE5-A69F-C58E1C5EB6BC/ArmedForcesAct(Continuation)Order2019.↩︎
Finance Act 2019, sections 1 and 2. Thanks for this reference, and for the point about other taxes made permanent, to professor Glen Loutzenhiser.↩︎
Bill of Rights -see above, note 7. For seizures, see LG Schwoerer The declaration of rights 1689 Baltimore 1981, pp76 and 326.↩︎
Tooley and others (1709) (various reports); M Macnair, ‘Revolution principles and the revolution bench’ in C Macmillan and C Smith (ed) Challenges to authority and the recognition of rights Cambridge 2018, pp111-14.↩︎
The suggestion is an election after October 31, when Brexit is expected to have been delivered. “Mr Johnson has made clear that holding an election before Brexit has been delivered would be an ‘absolute folly’.”↩︎
According to the Oxford dictionary of quotations, this is usually attributed to Joseph Jekyll (1754-1837).↩︎
https://britainelects.com/polling/westminster/ shows polls down to July 11.↩︎
www.instituteforgovernment.org.uk/explainers/proroguing-parliament. The same source tells us that in 2008 the Canadian government prorogued the Canadian parliament to delay an intended vote of no confidence.↩︎
‘Government sets out proposals to reform employment tribunals’ The Guardian January 27 2011: “Earlier today, the business secretary, Vince Cable, said the current system served as a ‘major impediment’ to small businesses hiring people. He told BBC News: ‘The process of going through tribunals [is] a very costly and time-consuming process and all the feedback we get from employers’ groups - particularly small business groups who are absolutely key to hiring people and getting us out of the economic mess we’re in - is that the fear of a tribunal is a major impediment to them hiring people.’”↩︎
Eg, the poet and politician, Andrew Marvell, and his Hull constituency: www.historyofparliamentonline.org/volume/1660-1690/member/marvell-andrew-1621-78.↩︎