Parliament Back On, Brexit Clock Still Ticking
UK Parliament [CC BY 3.0 (https://creativecommons.org/licenses/by/3.0)]
For those of you that thought the problem with Brexit was it was too neat and tidy, your day has come:
Part of the problem is that the UK doesn’t have a written constitution like, say, the US or most other modern democracies. Instead, its constitution is based on hundreds of years of law and convention – which can be difficult to interpret.
A group of 70 Scottish members of parliament (MPs), a vocal campaigner over Brexit, and a former prime minister were all arguing against the government.
There was plenty of colourful language.
In the end, the Supreme Court decided against the government – that the suspension was designed to “prevent or frustrate” parliament carrying out its duties, and that it has no effect.
What happens next?
Because the suspension was ruled unlawful, parliament is technically still in session, as if the whole thing had never happened. The decision from 11 judges was unanimous. Parliament could be reconvened straight away. In its summary, the court said that how that happens is up to the Speaker of the House of Commons, John Bercow, and his counterpart in the House of Lords. But when it comes to Brexit, there’s a time limit.
So now what? No one is really sure. Labour, led by Jeremy Corbyn, will likely push for PM Boris Johnson to step down, but they don’t really want a gerneal election either so how they go about that will be interesting. If Johnson wants to “crash out” he can continue to run the clock out. The calls for a second “people’s vote” are loud enough but cannot be done in 37 days. Then there is the problem that parliament can pass whatever it wants regarding Brexit, but the European Union has more say in it at this point than they do. Which, of course, is why Brexit happened in the first place.
As it stands, the prime minister still maintains that he will take the UK out of the EU on 31 October – despite the fact that in the small amount of time they were in session, the parliament passed a law requiring him to ask for yet another extension.
That disagreement could lead to another political crisis, or another election. Or the EU might not agree to an extension even if asked.
And now, more than three years after the Brexit vote, there are just 37 days left to sort it all out.
Spinning faster without getting anywhere seems to be the immediate future for our UK friends, but one way or the other the end is near, or at least near-er. Clocks ticking.
Forget Brexit for a moment. What is fascinating to me is how the very principles of Parliamentary government have been (perhaps) irrevocably broken – not so much by this latest “Supreme Court” incident, but by the Fixed-term Parliaments Act 2011.
The court should strike down that act, and then the log-jam will clear. The Johnson Govt will fall; elections will usher in; and the Govt. will govern with the approval of Parliament.
It is positively bizarre that Parliament is attempting to govern absent a Government… that is the sine qua non of Parliamentary rule.
In my long running quibble with Saul about the efficacy of Parliamentary vs. Presidential regimes – this failure mode of Parliamentary government is worse than anything we could have contemplated. A little bit like taking all the failure modes of Presidential regimes and adding the failure modes of Parliament with none of the upsides of either.Report
It seems to me like the Fixed-term Parliaments Act would similarly fail this type of analysis. The present decision is premised on the notion that proroguing parliament is in conflict with an underlying principle of parliamentary accountability. It’s just as easy to conclude that the underlying principle of Westminster parliamentary democracy is that the government is accountable through the electoral process, and this act of parliament is contrary to that tradition. At an important juncture, where the government does not enjoy the confidence of the Parliament, Parliament is refusing an election for its own self-interest.Report
Precisely; It’s definitionaly delegitimatizing.Report
And in terms of Parliamentary failure, this one in particular exposes the problem of a public body trying to steer negotiations with other sovereigns. I could make an historical reference to how the Senate’s “advice and consent” role was reduced by mutual accord during the Washington Presidency, but here we have Parliament seeking to direct negotiations with the EU. They’ve either tied the governments hands in a constructive or unconstructive fashion, but certainly in a way that doesn’t meet the EU’s requirements and in a way that the government can undermine. I can’t tell whether or not Parliament has increased the risk of a no deal Brexit or not.Report
Right; if there was any hope for a deal, the PM needed a credible threat of No-Deal for purposes of negotiation… it’s the bluff that the EU has been calling since Cameron came back with zero concessions prior to the referendum.
The prorogue was the only real hope for a deal…
And, failing a workable deal, a vote of no confidence to force the EU to unilaterally extend the deadline – which the new government could then take or not as needed/desired.
Which isn’t to say that the negotiations would have gone to anyone’s satisfaction, just that the actions of Parliament have doomed them to no good effect.Report
I’m less certain about a threat of No-Deal as an external strategy in the way advertised, the EU negotiators can read the newspapers about that stratagem. I think it is more that the threat of a no-deal is the only tool that will concentrate Parliament’s mind on what it agreed to do following the referendum. And that’s important for negotiations because the UK will seek concessions that it can then sell to Parliament, but these concessions will be public and the EU states will be reluctant to be seen bargaining against themselves if they think the UK Parliament will still reject them. Boris has to show that he has the ability to get to get a revised withdrawal agreement passed.
The alternative theory is that it is all about getting an election: ignite outrage in the opposition; purge the remainer MPs; and form a majority government that’s not reliant on the DUP. Perhaps only then can an agreement be reached.Report
Wouldn’t disagree, but say that its two sides of the same coin. Either way it depends upon a functioning government that can command a majority.
Regarding the alternative theory, that’s the only way forward; further, if you read the 2011 act, the alternative theory there is that it is a pro-incumbency act dressed as a “fair governance” act. Either way, it is a problem for parliamentary governance.Report
That act is a big problem, but simply throwing a referendum into a Parliamentary system was also a big problem. You can combine referenda with a Parliamentary system, New Zealand does it, but it needs a process around it to ensure that Parliament and the referendum result don’t become an opposing sources of legitimacy.
The core issue here I think is that key systems that make Parliamentary democracy work have been disabled because people decided that they were “undemocratic”, not understanding that the essence of a Parliamentary system is that Parliament is in charge. The democratic part of the system is where voters get to vote for Parliament, if people don’t like what Parliament does they can vote them out at the next election but they don’t have a right to overrule its decisions.Report
I agree.
I agree harder, but perhaps differently that the referendum wasn’t/isn’t binding… but that’s the point of the original election which gave Cameron his majority, and even the snap election which weakened it for May. He or She or the next He or She could take parliament in whatever direction they want… and subject themselves to whatever electoral forces it would let loose.
But that’s where we agree, the primary strength of the Parliamentary system is the fact that each election is a sort of referendum on the legislative and executive agenda for the next 5-years… absent defections or a lack of confidence.
The Romantic in me thinks the Queen should dissolve parliament – though it would likely be her last gift as queen. A fitting end to the monarchy… better than it will get in the future.Report
The referendum was binding in the simplest sense that an overwhelming majority of parliament voted to hold an in/out referendum on the EU, and following the referendum, an overwhelming majority of parliament voted to invoke Article 50. In the immediately subsequent election, no opposition party presented a serious opposition to Brexit, mainly preferring certain types of “leave,” or in the case of the LibDems, a confirmatory referendum.
I think there is a strong sense that the snap-election exhibited a failure of the parliamentary system because it was called by May to strengthen her hand in negotiating the details, but the opposition parties largely sidestepped Brexit as unfavorable ground and the election was largely fought with indifference to the matter.
In addition, the power of the referendum comes from its influence on the major parties. 74% of Conservative constituencies were majority leave, as were 64% of Labour. Most MPs probably don’t like it and voted against it, but lack what a former Illinois governor, current jailbird, called the “testicular virility” to do what they believe needs to be done.Report
I think your comments are really good with regards to why the Referendum was held and why its being acted upon.
But I think the case is overstated on the point of “Higher Law” or constitutional base. I could compromise on it being an expedient, if perhaps important, act of political legitimacy or validation for a specific part of an election platform – especially one that touches on matters of national sovereignty or the franchise.
But no given parliament is bound to enact the referendum nor respect a referendum “constitutionally”. Not doing so could, should, and would have electoral repercussions… but now we’re just back at the ordinary functioning of Parliamentary systems.Report
“Bound” is a strong word, particularly for a constitutional system based upon custom and conventions and a hodgepodge of historical documents and stories.
The story about parliament enabling the referendum then ratifying it is a powerful one that it is hard to undo because the act, whether ill-advised or not, sought the judgement of the People. And part of the tradition and custom of the system is that the People are the source of parliament’s power, and when parliament loses confidence in the executive or the executive is being prevented from governing by parliament, they traditionally held elections to allow the People to resolve the dispute through another election. Is Parliament bound to ever have another election or does custom strongly suggest that arrange to do so at some time?Report
I don’t disagree, but I’m not sure where the point of contention is anymore…
The conclusion that Parliament is “bound” by tradition to hold elections is really the point… sometimes Parliament changes the customs under which it holds elections… ranging from the Long Parliament (which lasted 20-yrs) to the more recent 7-yr terms, to the current 5-yr terms to the very-recent 2011 Act which fixes the terms and requires the “abnormal” 2/3s majority to dissolve parliament. So, strictly speaking, Parliament is not bound to have another election should it decide it not to be so bound, like it has in the past. Or, on the flip-side, it can so bind itself that unintended consequences can make it dysfunctional until such time that it unbinds itself – which is my contention about the 2011 Act.
Which brings us back to the Referendum; a political act that provides legitimacy/validation for a political course; in itself it can enact nothing.
Perhaps it seems I am arguing – like many who have made similar arguments – that this is a backdoor for Remain (i.e. the wise Parliamentarians set aside the Referendum)… this is not my intent. My inclinations side *with* Brexit, and my concerns are the extra-Parliamentary procedures that are undermining Parliament in the interest of an end, not in the interest of the process. I think Brexit has exposed problems with the 2011 Act that were not (perhaps) apparent at the time.
it is the political theater of Prorogues, Bercows and Spiders that is the symptom of the greater problem.Report
I think the 2011 Act was a long-held desire of LibDems and a condition for them to enter a coalition government with the Conservatives. It also probably secured that coalition by preventing one side from getting what it wanted from the arrangement and pulling out before the other party got what it wanted.
Fixed terms makes the system more comparable to the U.S. system, as does the UK Supreme Court and to some extent devolution (as an imperfect form of federalism). All of which have changed the assumptions underpinning the constitutional order.Report
The reason that the referendum was utilized was to establish a point of “higher law” (the will of the people) to provide a more stable constitutional base. At some point a Constitutional system is expected to place restrictions on parliament or at least form a framework of unity within which disputes are resolved. Some things are not supposed to be changed at the whims of the governing majority.
I’m not sure this referendum would be controversial, if it had gone the other way (as did the 1975 EU referendum) because it would have required no further act by the government or parliament. “Leave” meant the introduction of a series of negotiations with the EU that could not be reduced to ballot.
The reason Labour promised a referendum in the 2005 election; the Conservatives and LibDems coalition passed a referendum lock in 2011, and the Conservatives passed the 2016 referendum act was that (a) these were popular, and (b) they responded to the lack of consent to the changes to the UK constitutional system due to membership in the EU. Parliamentary supremacy was being eroded by courts finding “higher law” in EU rules. Parliament couldn’t change the outcomes at its whim. The referendum was the device by which EU hegemony over domestic institutions was to be legitimized.Report
There is a great short explainer about “How Would a Second Referendum on Brexit Work?” that makes reference to how New Zealand has done it:
https://www.youtube.com/watch?v=TO4yzIGtjrEReport
With all of the other stuff going on over there, the UK had time to have its own “Marbury v. Madison” moment with the UK Supreme Court, less than ten years in existence, seizing a bit of power in a moment of political crisis.
The differences that come to mind though are two: Theoretically, Marshall claimed the power of judicial review as an essential characteristic of any “written constitution.” Much of his argument built on this and relaxed any anxieties that the power was rooted in political preferences.
As a matter of practical politics, Marshall claimed for the SCOTUS the ultimate power of constitutionalism, declared what the government had done violated the constitution, but gelded the beast by also declaring the legislation giving the court it’s power was unconstitutional. The effect was to assert a power of restraint that the SCOTUS didn’t find the need to utilize for fifty years when Chief Justice Roger Taney picked it up to resolve the great political crisis of his time.Report
I leave the legal analysis to others.
I say again as I have before that Brexit is what happens when politicians care more about power then the do actually governing. Whatever the flaws of the EU – and frankly they only exist when the threaten a particular power base – it has generally worked. Crashing the UK out of the EU because you lied to get elected and can’t face the truth that there was and remains no there there is the height of hubris; not to mention really bad economic policy. Johnson, much like Trump, likely never expected to win, is in over his head, and is too prideful to actually say “hey, you know what, this is a crappy idea. ” So the UK will crash out of the EU on 31 October with no plan, dragging the world economy behind it.
Which means the the UK will bring a recession to the US in the middle of our presidential election. An election in which we may well be impeaching the incumbent.Report
Sacrificing freedom and self-government for a bit of economic growth is not good policy. How are you supposed to feel when you’re on trial in a European court for violating some bizarre speech code, probably going to prison for five years, but then your Aldi stock went up 3%, so there’s that.Report
i ave never bought that argument. Especially since we have done the same thing right here over the last 40 years. EU citizens still owe their first allegiances to their respective countries, and the EU construct actually keeps most of the sovereignty in the hands of those countries. The economic growth is a nice benefit, but there’s also been the elimination of significant bureaucracies (via ease of movement and a united currency) and greater market certainty across a significant region due to unified regulation.
Frankly the EU is just a looser federation that matches the vision of our Founding Fathers.Report
“you can keep trying to make anything other than Individualist Republics function, but it’s going to be political power dumpster fires all the way down”Report
Yes, but no. Yes, Cameron is the colossal failure here… he failed to negotiate concessions from Merkel prior to the referendum, failed to guide the referendum to his desired outcome, then failed to govern at all with his resignation.
But No, the remedy is still votes of no-confidence and collapsing governments until a working majority in favor of Leave/Remain emerges.
Voting down deals under May and Johnson and simultaneously refusing votes of no-confidence for new elections is the crisis…
And, given the polling that Brexit is preferred over Corbyn is the lie that Parliament isn’t dealing with.Report
I’m wondering if Boris thinks he’s run the clock out. That if he just sits on his thumbs from now to Oct 31, including ignoring the law requiring him to request an extension by Oct 19, the only way Parliament can stop no-deal Brexit on Oct 31 is by (a) rescinding the Article 50 notice or (b) the opposition forming a government after a no-confidence vote. And that Parliament can’t pull off either of those.Report
That’s a fairly good read of the situation actually. And its equally scary. the Opposition could indeed form a new government after a no confidence vote – and I suspect that coming rather quickly now that the courts have weighed in. They might well also be able to table a rescind motion in that time too . . . but the chances of getting actually passed if the Conservative MPS don’t play along would be unfortunate. And that assumes the EU would accept a rescind notice this late in the game.
I suspect we will see a No Deal crash out regardless. At which point the Brexiteers will all of a sudden decide that leaving wasn’t a good idea economically and the EU will tell them to pound sand.Report
The European high court ruled earlier this year that the UK could unilaterally rescind the Article 50 notice any time before they were actually out.
The risk of passing a no-confidence motion seems to me the possibility that the opposition can’t put together a government. In that case, if the NC vote happens soon, I believe that the important Oct 17-18 EC meetings, the Oct 19 required extension request, and the Oct 31 departure date would happen after Parliament is dissolved and before the election. Boris would probably be overjoyed — Parliament takes themselves out of the game at a critical time.Report
Prime Minister’s Questions ran more than three hours this afternoon (local time — gotta be able to stay up late if you’re an MP). Mean. Lots of name calling. Occasional crying. When they were done I was left with the impression that the Remainers and soft-Brexit people believe that somehow Boris is going to out-maneuver them all and deliver no-deal Brexit on Oct 31.Report
No Deal Brexit is all he has left. Cameron and May left him little choice. Which to me is really funny since, as a Brexit leader he kept claiming No Deal would be ok. Now he has to lead his words. Funny how reality always catches up to them.Report
I think Boris has decided he’s fine with no-deal — maybe always was — and is running out the clock. Everything else is an act. He’s going through the motions of negotiating an alternate deal. The EU side keeps saying that, in diplomatese. The attempted five-week prorogation bought him a couple of weeks until the courts overruled it. An election timed so that Parliament is dissolved before the critical dates in the second half of October would give him freer rein to do nothing, and he’s certainly doing his best to goad Parliament into one. He’s doing a fine job of offending the EC, in hopes they won’t grant another extension.
The last thing between Boris and no-deal is May’s deal, already approved on the EU side. Last time May’s deal got voted on, it lost by only 58 votes. With no-deal staring Parliament in the face, May’s deal may get a last chance.Report