Prorogation was shocking, but (probably) legal. That’s the problem.
There was a lot of shouting, accusation and typing in capital letters yesterday after it was announced that the Queen had agreed to Boris Johnson’s request to prorogue Parliament for five weeks, thereby seeming to nix – and vex – those MPs working to prevent the UK from leaving the EU without an agreement.
There were very strong words. People referred to it as a coup, as undemocratic, the actions of “a tinpot dictatorship” in the words of the Scottish First Minister Nicola Sturgeon. It was met with an immediate promise of a legal challenge, both in Scotland and England.
In the midst of the anger and raised voices, it was particularly soothing to hear the calm tones of Jonathan Sumption QC, former Justice of the Supreme Court. When asked by BBC Newsnight to describe what had happened, he put it succinctly:
It is politically shocking in a parliamentary democracy; whether it is illegal or unconstitutional remains open to question.
That is the rub of the matter. What the Government have done is infuriating, outrageous, maddening, and (almost) certainly completely legal and constitutional.
A new government with a new agenda has the right to ask for a parliamentary closure in order to prepare a Queen’s Speech to announce their new agenda. Typically, the session is ended for a few days before the Speech, not five weeks. Still, just because it is unusual does not make it illegal. The Queen had no choice but to agree to prorogation. According to the convention and tradition of the British constitution, she acts on the advice of her ministers, and cannot refuse to follow that advice. Were she to do so, then we really would be in a constitutional crisis. As Lord Sumption noted, the role of the courts in any subsequent legal challenge to this suspension would not be to decide whether the advice given to the Queen was right; the role of the courts would only be to rule whether or not it was legal. (As I write this, the Court of Session in Edinburgh has just refused to grant an immediate interdict to the prorogation. Lord Doherty rejected the initial claim of 75 MPs and peers that the advice given to the Queen violated the constitution).
I don’t know how the legal challenges to this will play out. But I do know a thing or two about our constitution and our history, and what this latest episode has called much-needed attention to is the fact that this kingdom has no written constitution. We have a set of laws, conventions and traditions.
The problem with this is that laws can be overturned, conventions can be ignored, traditions can be reinterpreted. There is no doubt that when compared with many countries, especially our continental neighbours, we seem to have got along extremely well without taking the trouble to write down and codify our laws. But I would argue that this has only been the case so long as we were governed by those who had at least a passing sense of respect for the laws, traditions and convention that have governed this kingdom for over 400 years. Would anyone say with confidence that the current government fit that description?
But this is not my main point. My point is about the role of our constitution in all this. Stephen Bush of The New Statesman put it very well when he said that this was not a constitutional outrage, but it called attention to our outrageous constitution. The problem is not that Boris Johnson did this; the problem is that Boris Johnson could do this.
Power in Britain, unlike many other democracies, does not emanate from the bottom up, but from the top down. Executive power in Britain is exercised via a convention known as the Crown-in-Parliament, where ministers exercise the powers of the monarch. This gives the executive enormous power to pass legislation and control the legislative session. That is why it has proved so difficult for opponents of No Deal Brexit or any Brexit to use the House of Commons to their advantage.
Power in this country is far too centrally concentrated. As I have written before, we have a 21st Century economy and society, with 17th and 18th Century political institutions. Whatever the outcome of Brexit, a future Labour Government must promise to call a constitutional convention where alternatives to the current system are discussed and proposed, including the role of the monarchy, possible federalisation of the four nations of the kingdom, the creation of an elected upper chamber, and the decentralisation of power to the regions of the entire United Kingdom.
If Labour does not do this, we run the risk of future governments taking this latest action as the new convention, where a government faced by a legislature that it finds troublesome can simply bypass it by using the ancient powers of institutions that need not even be abolished, but modernised to reflect the confidence this nation has in its democracy.