QED

Britain’s ‘No Election’ Constitutional Crisis

Where to now, Boris Johnson?  Yes, I acknowledge it is unwise to predict what might happen in Britain, based on my knowledge of the Westminster system as practiced in Australia — a deficiency of which Henry Ergas’ excellent piece in today’s Australian makes me even more aware. Ergas writes:

…the obvious risk was that the views of “the people’’, as expressed in a referendum, would at some point clash irreconcilably with those of their elected representatives, pitting two starkly contradictory principles against each other: that of the sovereignty of the people, which, in the popular mind, was the basis of British democracy, and that of untrammelled parliamentary sovereignty, which was its reality. Were such a clash to occur, the British constitution had no way of resolving it, ensuring that the consequences would be disastrous — first and foremost for the constitution’s legitimacy…

Still, if only for the purpose of prompting Quadrant Online‘s readers’ thoughts in the comments thread below, indulge me.

Now that it appears the No-Deal Bill will pass the Parliament, it will then need to go to the Queen for Royal Assent. Johnson  could present the Bill to the Queen and advise that she withhold assent on a number of grounds, including that it is contrary to the express wish of the British people, or that it is contrary to the national interest in that it can only result in a deal which is no better than the one rejected multiple times by both sides of the Brexit debate.

That would be a highly controversial move.  The Queen would be bound by convention to accept the advice of her prime minister but it would undoubtedly bring down undeserved opprobrium on the monarchy.  I doubt very much that Johnson would want to put Her Majesty in that position.

He might also delay presenting the bill to her until after the October 31 deadline, thus bringing down that opprobrium on himself.  This would undoubtedly result in a vote of no-confidence which he would certainly lose. Would that then enable him to advise an early election?  I think so, but I am not sure. Readers better versed than I might care to address this point in comments.

If Johnson adheres to convention and allows the No-deal Bill to go into law, would he then be granted an election? I wouldn’t count on it.  It would depend on how Labour and the renegade Tories read the public mood.  If they believe there is a reasonable chance the public will get behind Boris, if for no other reason than to get Brexit done, they will know that there is nothing to stop him repealing the Bill were he to regain control of the House.

If he cannot get an election, then it comes down to how long can he hold on as Prime Minister. As I understand it, under current rules the backing of 15 per cent of  Conservative MPs is required to trigger a leadership challenge. Given that hurdle,  one would imagine Johnson is safe for the moment.

It all comes down to how committed Johnson really is to Brexit. At the recent CPAC conference in Sydney, guest Nigel Farage had his doubts. We will likely now see if those suspicions are valid.

Is Johnson prepared to stake his political career on this one issue?  Should he get the election he seeks, is he prepared to accept the deal that Nigel Farage has put on the table: to field Brexit Party candidates only in seats the Tories will not, he could well essay a major triumph out of this dog’s breakfast.

Again, let me hand over to Henry Ergas in today’s Australian:

The process David Cameron rashly unleashed when he called the referendum is not one of entopic decline — it is a headlong plunge into the abyss, as one convention after the other crumbles and as all signs of political civility are lost.

And with parliament now knocking back Boris Johnson’s call for an early election — so that Britain has joined Italy in having a legislature that refuses to face the electorate — the relationship between the parliament and the people is being frayed to the breaking point.

Were I Johnson, I would delay presenting the No-deal Bill for Royal Assent and see where that led. Another convention, as Ergas observes, crushed and crumbled because Britain’s political class cannot and will not bow to the will of those who voted Leave.

14 comments
  • ianl

    > “He might also delay presenting the bill to her until after the October 31 deadline, thus bringing down that opprobrium on himself. This would undoubtedly result in a vote of no-confidence which he would certainly lose. Would that then enable him to advise an early election?”

    I did canvass all this in an earlier thread. However, if Johnson just sits on his hands and waits till October 31st (opprobrium and all), *why* should it result in a no-confidence vote ? That probably risks a general election without inclusion of any conditions from Brussels on quitting the EU, which is exactly what the Remainers do not want … so why put up a no-confidence motion ?
    If Johnson does just sit on his hands, doubtless the London establishment will pillory him unmercifully as without honour, integrity, destruction of democracy and blah … but the pressure then for a general election will become intolerable enough to force one. Will the electorate also regard him as dishonourable, without integrity and so on ?

    Unanswerable, but from the UK websites and MSM I’ve looked at, this “sit-on-hands” possibility is the one that evokes the most shrieking and wailing from the Remainers, so with that high degree of flak I suspect it’s over the target. But who really knows ?

  • Peter OBrien

    It agree that Parliament would not want to vote no-confidence if they thought that could lead to an election they might lose. But it is hard to see how they could avoid it if Johnson defied Parliament’s will. The alternative is that they might convince enough of the weaker Brexiteers to mount a challenge to Johnson. That is something I thought rather remote until this morning’s development that saw Johnson deserted by his brother.
    The other imponderable is how the popular support for Brexit translates to seat by seat support.

  • sabena

    There is a basis for royal assent being refused if the bill is unconstitutional.The argument for that in this case is that the bill seeks to intrude on the manner in which the executive carries out its functions,not their power to do so.
    If Johnson wants to adopt this line the argument against it is that unconstitutionality is normally a matter for the Courts.However the Palace,if advice is foreshadowed that assent should be refused,will no doubt take independent advice and that may impact on the timetable.

  • Peter OBrien

    Just a thought – could Johnson justify a refusal to present the Bill to HM on the grounds that to ask her to assent to a Bill that thwarts the will of her subjects would be to ask her to bring the monarchy into disrepute? A fig leaf, I know but that is often all that the modesty of our politicians requires.

  • sabena

    Peter,
    Unfortunately,the answer to your question is no.

  • Peter OBrien

    Sabena, could you elucidate, please

  • rod.stuart

    Surely the smokescreen created by the elite regarding this deal/no-deal nonsense is enough to justify the impropriety of simply not presenting it to HM before the 31st.
    The referendum of course was binary………LEAVE, or REMAIN. The very idea that some sort of “deal”could be struck with the Soviet EU was nonsense from the very beginning. That the hapless May even produced the theatrics of seeking a “deal” is absurd. That line of reasoning makes the no-deal bill ridiculous.

  • sabena

    Peter,
    Johnston can’t ignore the bill now that it has passed.
    There are two options in relation to recommending that assent be refused to the bill.The first is that it is unconstitutional,as to which see above.If Johnston gives this advice,the Queen is bound to follow it,provided he tenders with it reputable legal advice to that effect.The second issue is whether a government is bound to present a bill for assent that it does not support.The issue is discussed in Twomey:The Veiled Sceptre at pp645-7.The fact that 2 different principles(the obligation to follow Ministerial advice and the obligation to follow the will of parliament) means the Queen’s power is a reserve power.
    Twomey then says this “The likelihood of such a scenario is slim,because if a majority of the lower house passes a bill against the wishes of the government,this majority could vote no confidence in a government if it advised the head of state to refuse assent to the bill.Most governments would be unwilling to take that risk,unless it was clear that no alternative government could be formed and a dissolution was undesirable.”
    Now the “slim” scenario may have arrived as the government wants an election.
    On the other the bill states that if no deal is reached by 19 October,the PM must write a letter to the EU requesting an extension to the deadline in the form set out in the schedule to the bill.It does not prevent the PM from writing a separate letter setting out his conditions for a deal which would likely mean the refusal of an extension by the EU.

  • Peter OBrien

    Sabena, thank you. My point was that Johnson could trigger a vote of no confidence by his refusal to present the bill. That would then enable him to advise an election unless Labour, Lib Dems and rebel Tories conspired to give their support to a coalition government led, presumably by Corbyn, who could then claim a majority support on the floor of the House and visit the Queen to ask her to commission him PM. I doubt the Lib Dems and rebel Tories would agree to this strategy unless Corbyn agreed also to advise an election. In which case Boris gets what he wants. But in this febrile environment, who knows?

  • [email protected]

    What would happen if an extension is requested but is refused by the EU? Could Johnson quietly arrange for that to occur.

  • Peter OBrien

    Gary,
    as Sabena suggests, Johnson could make known that he will not accept any version of the May deal, as he has, in fact done. But my guess is the EU will bank on Johnson getting rolled and a more amenable replacement moving in to No 10. They will grant the extension.

  • pgang

    It’s hard to see Johnson not allowing Royal Assent. He seems to be a little more honest than the rest of Westminster, and that would cut against the grain. But I find this comment from sabena interesting:

    “On the other the bill states that if no deal is reached by 19 October,the PM must write a letter to the EU requesting an extension to the deadline in the form set out in the schedule to the bill.It does not prevent the PM from writing a separate letter setting out his conditions for a deal which would likely mean the refusal of an extension by the EU.”

    If I am reading this correctly it is game-set-and-match to the PM. All else has been mere histrionics leading to a Brexit on 31 October. If he gets his election, he wins (probably the best scenario for him). If he doesn’t, he makes his request for an extension completely unpalatable to the EU so that they will reject it anyway.

  • Peter OBrien

    If the EU seriously want to keep Britain in the fold, I can’t see them rejecting the extension and thereby triggering a no-deal exit.

  • en passant

    Peter,
    I have not seen the terms of the ‘request and extension’ letter, but if it as vague as so much else Boris could comply by asking for an extension to 2nd November, then out with no-deal.
    I saw a great cartoon that said “The Americans crashed out of the British Empire 243 years ago. How did that work out for them?’

    My (opinion) view is that the Brits should be fervently talking trade deals with Trump, the Commonwealth countries, the BRICS and the RoW and ignoring the EU. They should also be stirring up the Visegrad countries within the EU, such as Poland & Hungary

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