A constitutional crisis is now in full swing with the attempt to impose Brexit

According to news reports today, the Johnson regime in the UK is risking a “full blown constitutional crisis” by asserting that the UK will leave the European Union on 31 October “whatever the circumstances”. Parliamentarians fear that he intends to do this despite the expressed wish by the democratically-elected Parliament against a No Deal Brexit. This blog has been warning of this threat to the constitution and representative democracy for a long time, that populists would exploit the questionable claim to a mandate from the 2016 referendum to impose Brexit on the UK.

Expressions of outrage

This latest twist to the Brexit crisis has occurred because Johnson’s “dark arts” advisor Cummings has said that Parliament can now no longer stop Brexit happening on 31 October. A No. 10 spokesperson also stated “The UK will be leaving the EU on 31 October, whatever the circumstances. There are no ifs or buts.” Parliamentarians have reacted furiously.

Tom Brake, the LDP Brexit spokesperson, said: “By threatening to disregard votes in parliament, the government are careering towards a full-blown constitutional crisis. There is a word for a prime minister who dismisses parliamentary democracy – a dictator.”

Legal but unconstitutional

The context is that Parliament voted on several occasions against a No Deal Brexit. It also rejected Mrs May’s negotiated Withdrawal Agreement. However no legislation has been passed to prevent a No Deal Brexit. The current legal “default” position is that Britain would simply leave the EU on 31 October under the Lisbon Treaty Article 50 process. Currently that position is a “No Deal” one. Parliament has already voted consistently to have a say in the Brexit process, most recently by a “meaningful vote” on May’s Withdrawal Agreement.

In 2017, in the Miller case, the Supreme Court endorsed the constitutional principle of Parliamentary Sovereignty, that in particular Parliament had a right of consent to major changes such as leaving the EU. Departure from the EU could not be done by the executive alone. Litigation is now being prepared by the same Miller legal team to block further executive action that overrides Parliament’s wishes.

The new Johnson regime is refusing to allow Parliamentary consent for the 31 October departure. There are those that consider that he is legally entitled to do so, although this too could be subject to emergency litigation. As Vernon Bogdanor has said, arbitrary action such as suspending Parliament by prorogation might be legal but it would be a constitutional “outrage”.

The British constitution does not precisely cater for this situation, since it operates as an “unwritten” constitution by virtue of convention supported by such devices as statute, court rulings, Parliamentary procedure, and written authorities.

There is also the vital point of historical precedent. There was a long conflict in the 17th century between King and Parliament over the rights of the royal prerogative and the “divine right of Kings” against the rights of Parliament, the principle of Parliamentary consent, the rule of law, and the rights of the King’s subjects. It saw a bitter civil war (1642-1651). It was eventually resolved by the ejection of James II in the “Glorious Revolution” of 1688 after he attempted to rule without Parliament, whom he prorogued, and set aside certain religious laws. This was when that major constitutional document, the Bill of Rights, was agreed.

Hence Parliamentarians are now once again raising these old issues against threatened arbitrary action by the Johnson regime.

Parliamentarians can prevent a No Deal Brexit without consent

Attention is now being focused on what can be done to ensure Johnson does not carry out his threat. Bogdanor, among others, has said that Parliament can legislate to prevent it, by taking over Parliamentary business as was done before by the Cooper-Letwin team this year and passing laws, and/or it can overthrow the Johnson regime by a Vote of No Confidence. It would be very difficult since time would be very short, between 3 September and 31 October, and would need a rare degree of Parliamentary unity. Huge efforts are under way to get that unity. It may come done to the need for Tory moderates to vote against their own government in the national interest.

Most attention is being drawn to the VNC option, since in effect an alternative government would be needed in the interim, before 31 October. Johnson is cynically threatening to spin out the process so that the 31 October deadline would have passed before such a government could be in place. Thus what is thought to be necessary in that, under the Fixed Term Parliaments Act (2011), after 14 days, a new government can be formed rather than a General Election held and it is suggested that a government of national unity will be necessary to navigate an agreed way through this constitutional crisis.

A massive crisis is pending

All this is taking place as the Pound plummets in value and the economy slides towards recession. One must ask how the Johnson regime could hope to continue to govern, on its wafer-thin majority, amidst this collapse in confidence. No wonder he is thought to be planning an early general election on the populist basis of “The people versus the politicians”, to out-manoeuvre his opponents, gain a marority, carry out Brexit and then implement a neoliberal transformation.

Demonstrations are already being planned and many think these could be far in excess of those that protested the Iraq War in 2003. Were Johnson to attempt arbitrary action there is always the threat of people power, and Remainers control the cities. This is also in the context of massively rising inequality, poverty and a crisis in the welfare state.

The period from 3 September when Parliament reassembles after the summer recess will be a very tense time, while a struggle between Parliament and the executive over the constitutional crisis and Brexit reaches a climax.

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