In Britain, Sanity Prorogued

As Macaulay put it, “We know no spectacle more ridiculous than the British public in one of its periodical fits of morality.”  He was writing in a sterner age about the scandalous life of Lord Byron. Today, Byron would be a rock star and beyond public criticism, and Macaulay would be finding that the spectacle of Remainers both moralizing and rioting against Brexit was far more ridiculous than Victorian denunciations of Byron by almost any measure.

The latest episode: four days ago the Queen granted a request from the Government that Parliament be prorogued from the second week in September until October the 17^th. This was a tremendously normal thing to do. For almost all the postwar period—i.e., except for the last two years—the House of Commons has risen for the Summer recess in July or August, remained “closed” (except for emergency debates) through the season of annual party conferences in September/October, beginning a new “session” in mid-October. This new timetable mimics that regular procedure almost but not quite exactly.

If you doubt the word of a Brexiteer on this, here is the passionately Remainer Guardian explaining the position, striving to make it sound unusual, but then conceding grimly that it’s the usual thing by a different route:

Prorogation is a formal mechanism to end a session of parliament, normally lasting only a short time until proceedings begin again with a new Queen’s speech. It means parliament’s sitting is suspended and it ends all current legislation under discussion. It is normal for this to happen every autumn. The current parliamentary session, which began in June 2017, is the longest in almost 400 years.

So is this just normal procedure?

There are a number of highly irregular factors at play here. For prorogation to last more than a month is unprecedented in recent times. For example, since the 1980s prorogation has typically lasted less than a week. However, the five-week suspension does include a three-week period that would typically be recess anyway, three weeks during which the Liberal Democrat, Labour and Conservative party conferences are held.

Somewhat more “irregular” than this is that, as The Guardian dutifully noted, the Parliament just suspended has been the longest one for 400 years. How did that happen? Well, proroguing Parliament is the usual and necessary prelude to the government’s announcing its legislative program for the new session in the so-called Queen’s Speech. Theresa May’s administration had not prorogued Parliament in the previous two years for the embarrassing reason that it couldn’t make up its mind about Brexit and so it couldn’t say what it proposed to do about it in the Queen’s Speech. It had to let the existing Parliament run on without any end in sight—until May’s regime itself came to an inglorious end.

Twice in four hundred years! Now, that’s unusual.

Since Boris Johnson arrived in power, life has been much more like government as usual. After the recess, his government will be announcing its new legislative program in a Queen’s Speech which will reportedly be stuffed with big spending promises in addition to what he proposes to do on Brexit. Accordingly, there’s widespread talk at Westminster about a likely general election in the autumn or spring. That’s politics as usual too. And the decision to prorogue Parliament is part of that process of restoring normality.

Its net effect is that Parliament will now sit for about four or five days fewer than it might have done without this prorogation. Small earthquake in Westminster—Not many days lost: that would seem to be the most appropriate headline verdict, given that Parliament has been debating Brexit for the last three years without being able to reach a solution.

But that has not been the response of Remainers in Westminster, the media, the church, show-biz, the BBC, and the streets to this announcement. They think they see a sinister subversion of democracy behind the prorogation tactic. Britain is scheduled to leave the EU on the October 31 if nothing happens to stop it. If prorogation reduces the parliamentary time available to MPs to obstruct, halt, or even reverse Brexit by even a few days, that will make it harder to do all those things. And because they want to do all those things—some one thing, some another—they feel deeply that Boris must be acting, well, undemocratically of course, but also wickedly, shamefully, vilely, monstrously, contrary to the Ten Commandments, in violation of the Queensbury Rules, and contrary to both Emily Post and Mrs. Beaton, etc., etc., etc.

You doubt me. Well, Hugh Grant, the famous actor, tweeted out in response:

You will not f*** with my children’s future. You will not destroy the freedoms my grandfather fought two world wars to defend. F*** off you over-promoted rubber bath toy. Britain is revolted by you and you little gang of masturbatory prefects.

Ah, you respond, Mr. Grant is a very talented actor but not a very fair choice for an expert witness. How much does he know about constitutional politics? Is he perhaps over-excitable, imprudent, a little OTT? Maybe a front-bench parliamentarian would be a more persuasive witness to the threat posed to parliamentary democracy by Boris and prorogation.

Very well, let me seek such a witness. I am excluding from the search the Speaker, John Bercow, who did indeed send out a statement saying that prorogation was a “constitutional outrage.” I do so on the grounds that Mr. Bercow is well known to be over-excitable, imprudent, excessively verbose, and altogether OTT, as well as having shown himself to be actuated by a strong bias against Brexit in his judgments as Speaker—judgments questioned by his own (more authoritative) parliamentary clerks. No, Mr. Bercow who is something of a constitutional outrage himself, just will not do as an expert witness.  

Instead of the fulminating Bercow, therefore,  let us attend to Labour’s number two, John McDonnell, the Shadow Chancellor of the Exchequer, widely seen as the most intelligent of the Corbynite Labour leadership. He pondered deeply and wrote:

Make no mistake, this is a very British coup. Whatever one’s views on Brexit, once you allow a Prime Minister to prevent the full and free operation of our democratic . . .“ but you can probably finish the sentence for him.

A coup no less! And within hours  messages were going out from the Corbynite organization, Momentum, summoning people into the streets to “Stop the Coup.”  Crowds have indeed turned out waving banners, attacking those they suspected of pro-Brexit sympathies, and generally behaving not at all like sober constitutional theoreticians. Alas, they encountered no tanks against which to stand with a fine defiance. And though they marched on Buckingham Palace, they then dispersed. That very British coup was indefinitely postponed in a very British way, probably due to inclement weather.

Sceptics may rule out McDonnell as a fair-minded witness since he is also a self-proclaimed Marxist revolutionary given to occasional hot-headed moments of violent rhetoric. Okay, I understand; what’s needed is a sober centrist. I’ll give it another try: is there a Blairite in the House? As it happens, there is: Yascha Mounk, a rising young star of transatlantic liberal-democratic gabfests, who has served both in one of Tony Blair’s organization and at the Johns Hopkins School of Advanced International Studies, weighed in boldly at the Atlantic magazine:

Boris Johnson’s decision to suspend parliament is the most blatant assault on democracy in Britain’s living memory, and one of the most serious any Western country has faced in the populist era.

Let’s be level-headed here. Britain hasn’t furnished many examples of “blatant assaults on democracy in living memory.” If I wanted to compile a anxiety-inducing list, I would have a hard job. Among the things I could consider as deserving that description might be the 1984/85 miners’ strike, when an earlier Marxist revolutionary, Arthur Scargill, overrode the union rule book to instigate a national strike and then employed violence by roving pickets to prevent miners in areas that voted against the strike from working, with the professed political aim of bringing down the Thatcher government and reversing its policies. Fortunately, Scargill and the Yorkshire miners were defeated with the slightly perverse result that, though constitutional democracy was preserved, their violent actions are now shrouded in a mist of sentimentalized amnesia. But it was a serious threat to public order and constitutional legitimacy in its day.  

Oh, and another example springs to mind too. In 2015 the Tories held an election on a manifesto that promised a referendum on the UK’s membership of the European Union. Parliament voted to hold that referendum on the explicit promise that it would be the sole referendum and thus a once-in-a-lifetime decision. In 2016 the voters decided to leave the EU by a 52-48 margin. Both major parties then pledged to support that decision—including a departure from the single market, the customs union, and the ECJ’s jurisdiction—in the 2017 election campaign. They won 83 per cent of the vote between them compared to about eight per cent for the parties that rejected Brexit. Parliament then passed legislation to implement those promises by a majority of almost 500 MPs. That law also laid down that if an EU-UK agreement on the terms of Brexit could not be agreed, then Britain would leave automatically without a deal.

Having made, implemented, and entrenched these promises to the voters, a good many MPs (including Tory Ministers and the Labour leadership) have set about undermining, opposing, and reversing them by trying to halting Brexit at all costs and by junking any number of parliamentary conventions in order to do so. And fresh from their efforts to render Britain’s constitutional democracy meaningless and hypocritical, they now take to the streets and to the airwaves to “defend democracy” against the blatant and terrible assault of losing four or five days of parliamentary debate on Brexit when they have wasted three years of parliamentary time available to them on the same topic.

Compared to either the miners’ strike with its pitched battles against working miners and the police, or the last three years of parliamentary obstruction of both a popular vote and the Brexit legislation they had voted through themselves, losing a few days for parliamentary debate doesn’t quite match up.

If Professor Mounk thinks this as the worst assault on democracy in his lifetime, his lectures must be terribly thrilling. One can almost hear Lady Bracknell’s fruity tones in the trigger-warning he feels obliged to give: “The fall of the ERM you may omit. It is somewhat too sensational for a democratic electorate.” I wonder if he is by any chance related to Edvard Munch, the artist most famous for “The Scream.”

Now, the apparent fact that Professor Mounk is wildly signaling to be rescued from the shallows here does not necessarily mean that Boris Johnson is right. To judge that, we have to consider what he intends by the prorogation. And what he seems to intend is to put pressure on Brexit opponents by reducing the amount of time available to discuss their various solutions. As time for debate shrinks, so it becomes more difficult to push through parliament such complicated anti-Brexit schemes as making any Brexit deal subject to a second referendum. Eliminating them would whittle the realistic choice down to either a No Deal Brexit or a new compromise with the EU that is generally assumed to be Theresa May’s Withdrawal Agreement without the Northern Ireland backstop that makes it indefinite, possibly permanent, and constitutionally objectionable.  

Both the EU and Remainers in the Commons would be put under pressure by that binary choice because they both want desperately to avoid a No Deal Brexit. Boris and his forceful strategist, Dominic Cummings, seemingly calculate that the EU might remove the Northern Ireland backstop from the already negotiated Withdrawal Agreement and that such an amended deal would have a good chance of finally getting a parliamentary majority? Could either of these things happen? Possibly? Could the first happen but not the second? Possibly again. The parliamentary arithmetic is so tight that the Commons might well reject EU concessions supported by the government. On the other hand, things might not get that far. Boris himself might well reject the EU concessions he’s now seeking if he decides they’re too politically risky for himself and the Tories in an election. He may not yet have made up his mind on that. What is clear, however, is that if prorogation works as I suggest, then Boris has put himself in a situation in which he has more choices on the battlefield than either of his antagonists—something the wretched Theresa May never got close to doing.

Is prorogation legitimate, however? And will it succeed? Well, it comes with one small risk attached. Despite their absurdity, the charges that prorogation is an assault on democracy might slightly weaken the Tories’ otherwise solid attack that the opponents of Brexit are trying to outwit and frustrate the largest democratic vote in British history. It’s a small risk if and when Labour or the Liberal Democrats denounce Boris in these terms, however, since they are discredited before they begin. But he has to worry that if he finds himself fighting the Brexit Party on a “soft Brexit” platform, Nigel Farage would not hesitate to argue his party could be better trusted with Britain’s democracy since “You Can’t Trust the Tories” in general.

That aside, prorogation is what I would call “legitimate political chicanery.” It’s a regular part of the British constitution. It was used by Clement Attlee’s postwar Labour government to overcome Tory obstruction of its nationalization of industry program. It was used by former Tory Prime Minister John Major (who has condemned Boris’s employment of it on this occasion), to postpone an embarrassing report on a seedy Tory scandal in the 1990s. It’s been used in recent years by at least two prime ministers in the other English-speaking parliamentary democracies of Canada and Australia. And when a distinguished former Justice of the UK Supreme Court—yes, we now have one thanks to Tony Blair—was asked by a BBC interviewer if what Boris was doing was legal, he replied simply “Yes.”  

To be sure, prorogation wasn’t designed for this particular purpose of Boris—nor indeed for Attlee’s or Major’s purposes. But its purpose on this occasion—namely, reducing the time allowed for debate on legislation—is one well-known to the British constitution. There is even a name for it, “the guillotine”. To be sure, the guillotine is usually imposed by a government to ensure that its legislation gets through against determined obstruction by Opposition parties, whereas prorogation is being imposed here by government to derail attempts by Opposition parties to pass legislation by much more irregular constitutional methods. Even Stevens—at worst.

That said, prorogation is a legitimate power of government which Boris has used skillfully to gain a significant advantage at the start of what looks like a crucial but difficult week for him and Brexit.

Today a coalition of opposition parties and Tory rebels, almost certainly abetted by the Outrageous Bercow, will attempt to “seize control” of the parliamentary agenda from the government and then to pass legislation to amend existing law—the one they passed by a majority of 498 two years ago—to prevent a No Deal Brexit and perhaps to add on other bright ideas like making any Brexit conditional on a second referendum. The Tory whips have started telling their MPs that a vote for this motion will be treated as expressing no confidence in Boris and would therefore lead to expulsion from the party and the selection of another candidate in their seat at the next election. That in turn has Tory rebels talking of setting up a new party. Paul Goodman, on the influential ConHome website, notes fifteen different possible outcomes to the crisis. My guess is that he has undercounted the possibilities. But there’s a widespread sense that the long and drawn-out Brexit crisis is finally reaching its ultimate solution—probably in the form of a general election that will produce a different parliament that isn’t both largely hostile to Brexit but unable to agree on any single “solution” to it.

The hysteria of Boris’s critics this weekend is simply the rage of people who have realized too late that if you’re doing it to them, they’ll start doing it to you eventually. And there’s a risk that they’ll be better at it.

We’ll see.