One further small step for Parliamentary Sovereignty against authoritarianism

Once again Parliament has voted decisively against a No Deal Brexit without its consent, another victory for the overriding constitutional principle of Parliamentary Sovereignty against the threatened abuse of power by the executive. This time it was to make it very difficult to force through a No Deal Brexit by proroguing Parliament. This still does not prevent a No Deal Brexit but it makes it very clear what Parliament’s position is on the question.

Preventing Brexit by prorogation

The likely new Prime Minister, Boris Johnson, has refused to rule out the use of the prorogation of Parliament to prevent it obstructing a No Deal Brexit which he has said he is will to pursue. Johnson will have a very shaky and slender majority and Parliament and his own party has proven itself to be almost unmanageable. Previous motions on No Deal have been lost and May’s compromise deal with the EU was defeated 3 times.

Prorogation is a procedural device used to close a session before the opening of the new session with the Queen’s Speech outlining the government’s legislative programme. To use this device to suspend Parliament has been regarded by very many people as unconstitutional and Gina Miller, the activitist who previously obtained a Supreme Court ruling in favour of Parliamentary Sovereignty, has assembled a legal team and it has issued a legal warning of potential legal action if prorogation is attempted.

The measure passed on 18 July also gives legal force to an already clear position by Parliament. The Grieve-Burt amendment strengthened a Lords amendment passed on 17 July sponsored by Lord Anderson, to ensure that Parliament must meet fortnighty between September and November. The motion that would have to be discussed would be amendable, a Parliamentary procedural device to enable opponents to potentially legislate against further government arbitrary behaviour.

Opposition to a No Deal Brexit is getting stronger

It was interesting also to read of the numbers against prorogation assembled yesterday, including likely departing ministers led by Philip Hammond, the current Chancellor of the Exchequer. Several ministers have flagged up that they oppose No Deal and Johnson has been insisting that membership of his government must include support for a possible No Deal. Ex-ministers are often a source of potential trouble for a new administration since they may take the view that they have nothing to lose. There is a suggestion that a group of at least 17 Tory moderates could coalesce against No Deal Brexit, which could more than outnumber MPs in the oppostion who favour Brexit. This might, I write might, serve as a group that will continue to frustrate the Brextremists.

Again it also shows how very fragile will be BJ’s grip on power, once he reaches the top of the greasy pole as Disraeli called it. Parliament, and indeed his own party, are now very rebellious. Party discipline has all but broken down, on both sides of the Chamber. In the past this has usually been resolved by the new Prime Minister calling a general election to gain a fresh mandate and silence his/her critics. In this case, it is hard to do this since a win is far from clear given the current configuration of parties.

It is possible that as the October deadline for Brexit gets closer, and especially after Johnson has attempted a further renegotiation with the EU, that this rebelliousness will make things impossible.

A further referendum or a general election

Barring a surpise compromise with the EU, which so far they have refused, it looks increasingly likely that a further general election or a second referendum is on the cards. One senses that, with the vote yesterday in Parliament against prorogation, something has shifted, that there is light at the end of the tunnel, in that BJ will almost certainly be forced into some form of public vote. More manoeuvrings will no doubt take place on both sides, Parliament and government, the former insistent on the assertion of the principle of Parliamentary Sovereignty and the right of consent, and there will perhaps be the farce of an attempted negotiation with the EU (curious how people in Britain seem to forget them), as well as witnessing the muddle and confusion that will surround a BJ ministry. It will be interesting to see if he makes it past George Canning’s record as the shortest serving Prime Minister, which is 4 months, but, optimistically, we might actually be lurching towards that final vote.

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