ANDREW FARRAN. Brexit – Put not thy trust in constitutional convention

Sep 2, 2019

Had the English Settlement of 1688 been followed with a written Constitution Britain might not be in the pickle it is today. Then the tussle between King and Parliament had resulted in civil war. While the Royal Prerogative Powers have been formally retained by the Monarch they are now in reality in the hands of one, King Boris, who recently secured them without endorsement by Parliament or other formal anointment.  

The coming week may show how the most serious political crisis facing Britain since that earlier civil war might be resolved, or at least held over for calmer reflection later in accordance with more orderly process.

Without a written Constitution both Parliamentary law and process have relied largely on ‘convention’, an understanding arising from custom and practice respected and honoured by persons and institutions of goodwill. Without that goodwill conventions can be abused or misused to achieve political ends otherwise not available. That is the case now.

Last week uncrowned King Boris sent three emissaries to Balmoral Castle where the Queen was holidaying and there made a request that she could hardly refuse: that she sign the Prorogation of Parliament. This in effect has severely cut the available time for sittings prior to 31 October, the date on which the UK will crash out of the EU with or without a deal. Realistically, if that is to be avoided this week is it.

Meanwhile the political ranks in the Parliament are breaking up and the general populace, of one side or the other, are in uproar, up and down and across the country. As for the ‘governing party’ of the Tories, all coherence has been lost. The test that will find them out is whether or not the planned attempt by a significant and influential number of them, including former and recent Ministers, to stop Britain leaving the EU without an agreement will succeed on the floor of the House of Commons. For this a majority will be required from remaining Tories, the Labour Party, the Liberal Democrats and the Scottish National Party. The consequences of leaving without a deal have been calculated and revealed by the government itself to be pretty much disastrous. The Boris government, seemingly resigned to leaving without a deal, are engaging in massive planning to ameliorate its adverse affects, but if in the event those are not sufficient the political consequences for the Tories in a forthcoming general election (assuming that the Labour Party meanwhile has changed its leader) could be devastating.

The tactics now being employed by all sides are of the darkest kind, so much so that Boris’ appointed enforcer at 10 Downing Street, one Dominic Cummings of the 2016 Leave Campaign made a spectacular and thuggish show of fierce intent by sacking a key 27 year old female staffer of the Chancellor, Sajid Javid, without consulting Javid – allegedly because the staffer had had peripheral contact with a former colleague in the previous Chancellor’s office. The previous Chancellor was Philip Hammond, a key figure in the stop Brexit without a deal group. Sajid Javid was said to have been furious and made that known directly to Boris. He has since said that his relationship with Boris remains, as before, ‘fantastic’. The staffer had been escorted out Downing Street by an armed policeman!

Forthcoming threats from the Boris camp are running thick and fast, aimed at defecting Tories, past and present, including past luminaries as Sir John Major and Lord Heseltine whom are now considered non-Tories. Those still in the  Parliament would lose their preselection at the next election, which Philip Hammond described as “staggeringly hypocritical” since eight members of Boris’ current cabinet had already defied the party whip this year, under Mrs May.

The initial moves in the Commons would not include a no-confidence motion as this wouldn’t immediately remove Boris or bring down the government – because of a statutory 14 day deferment period – and would lose most of the available time for the main purpose of stopping a no-deal Brexit. The immediate task would be to capture the business of the House from the government and enact a law that would stop the Brexit process and demand a further extension under Article 50 of the EU Treaty. If that were to get up the Bill would have to go through the Lords where there is some risk of a filibuster.

As for Boris’ possible responses to this, he could be expected to resort to further unconventional measures such as packing the House of Lords with enough additional peers to defeat the Bill; requesting the Queen not to give the Bill royal assent; calling a general election for after 31 October assuring Brexit without a deal by default; and as already noted deselecting Tories who defied him.

Sensing growing public apprehension about a no-deal, Boris is maintaining intensive rounds of negotiations with the EU, asserting that his recent visits to Germany and France had encouraged him to believe that the EU was ready to compromise and accommodate. He asserts that the Irish border ‘Backstop’ is undemocratic but hasn’t spelled out how that might be the case, especially to the Irish. Against this the EU, through its chief negotiator Michel Barnier, has denied that there is any plausible new proposal on the table from the UK, and categorically asserted that the ‘backstop’ is non-negotiable if the integrity of the EU single market is not to be compromised. He could have added that any change in that regard would require the assent of all 27 members remaining in the EU, including two provinces in Belgium which have separate vetoes.

Alternatives to blocking a no deal would have problems in that going into a General Election, as envisaged, Brexit would already be a fait accompli unless the EU had agreed to postpone it (unlikely). A further referendum would have the same difficulty unless the EU again were obliging. As for the state of British politics by that time, given how bad it is now, it would surely be even more than problematical.

In the face of this Boris is arguing that those who insist on rejecting a no-deal Brexit and formalising it are playing into the hands of the EU. It is said that only because he is prepared to crash through without a deal that the EU might be pressured to agree a new deal. Boris’ ascension anyway is due to the fact that his demonstrated ruthlessness won over those who despaired about former Prime Minister May’s ineffectualness. He could hardly afford now to go to an election without Brexit being over and done – and moreover get Nigel Farage’s Brexit Party off his back, a sine qua non to keeping Labour under Jeremy Corbyn out of office – another reason why Corbyn and Labour have been so ambivalent about the process all along.

We enter this week here with all this going on, the streets filling up with demonstrations, the media up to its ears with Brexit, and a nation hanging by a thread with its future.

Perhaps after all, if the UK is to survive, it might see the virtue in having a written Constitution, with clear structures and norms, to hold the parts together, and resolve issues as mandated therein, without abuse or misuse of arbitrary ‘conventional’ processes in future.

Andrew Farran is a former diplomat, law academic and trade adviser, presently in the UK over September.

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