Boris’s constitutional manoeuvres

It is probable that until about a week ago, few of our readers were familiar with the word prorogue, or the parliamentary action that it describes.  Boris Johnson’s decision to ask the Queen to prorogue parliament from next week until mid-October has certainly changed that, and much else besides.

The general sentiment among those who oppose Johnson and his government has been that the decision to prorogue parliament was unconstitutional in some way, while at the same time a very clever manoeuvre.  We do not entirely agree with either assessment.

The constitutionality of the move is the easier of the two to analyse.  Prorogation is entirely constitutional, and is the standard way for a government to end one session of parliament and start the next.  Legally it is the Crown that prorogues parliament, and then summons the new parliament to listen to a speech from the Throne setting out the government’s legislative programme, but for centuries the Crown has in these matters acted on the advice of ministers with no independence of decision-making, and not only was the Queen right to agree to Johnson’s request for a prorogation, it would have been extraordinary if she had not.

Nor is Johnson acting illegally in timing the prorogation to fit in with the government’s other plans.   One of the Executive’s most powerful privileges is the management of the timetable of parliamentary business, and the prime minister is entirely within his or her right to time a prorogation to the government’s advantage.  Indeed Mrs May decided for political reasons not to prorogue parliament for over two years following the 2017 election, making the 2017-2019 sitting the longest parliamentary session since the Civil War in the 17th century.  If anything Johnson could claim to be bringing matters back in line with the tradition of annual parliaments.

But one thing is certain:  he was constitutionally within his rights to act as he did.

Whether Johnson’s decision is clever or wise is more open to debate.  But before we assess that, we must look at the battles Johnson is having to fight.  For unusually, he is fighting on four fronts at the same time.

Johnson’s first set of opponents are the EU.  Increasingly the EU is realising that Johnson will not flinch from a no-deal Brexit, and that absent some move from Brussels, this is now the most likely outcome.

The problem is that if the UK leaves with no deal then the EU’s own rules will mean that in order to protect the integrity of the single market, there will have to be a hard border in Ireland.  And despite the EU’s oft-stated opposition to a hard border, it will be Dublin (forced by Brussels) who will impose it.  And the irony is that Johnson will be able to point at the new border posts and the new trade restrictions and say that these are being put in place entirely by Dublin, and he will also no doubt say that from the UK’s perspective the border can stay just as open on 1 November  as it was on 31 October.

Hence some urgent discussions in Brussels about how far the EU can move.  But the answer is “Not very far”.  The EU is first and foremost a rules-based organisation, and it feels itself constrained sufficiently by those rules to be not only unwilling but actually unable to make the necessary compromises;  indeed many in the EU so prioritise adherence to the rules that they will do so even though they know it will lead to an undesirable outcome[1].

Alongside this, there is a growing realisation that for all his brilliance and effortless air of superiority, Barnier risks not succeeding in the task he was set.  His job was to get a deal, to secure the cash the EU thinks it is owed, to protect EU citizens in the UK post departure and to preserve the open border in Ireland – plus, along the line, hopefully lay the groundwork for a longer term trade agreement with the UK and if possible make sure that the EU and the UK remained not just geographical neighbours but partners and friends.

Against that list of objectives the fear is growing that he will come up empty handed.

In diplomacy the aim is not to be right.  It is not to be elegant.  It is not to be superior.  It is to secure your objectives, to seal the deal.  Whatever you may think of the other side.  Whatever unreasonable stance they take. However difficult they are.  And Barnier, and the EU, is edging closer and closer to failure with every twist that Johnson adds to the tale.

So against his first set of opponents, Johnson is having considerable success.  For the first time in the UK’s long 3-year negotiation with the EU, the EU also has something to lose and some problems to think about.

Johnson’s second set of opponents are the Brexit party of Nigel Farage.  It is not too much to say that the Brexit party is an existential threat to the Conservatives;  if they are still a force at the next election then Johnson will lose, and quite possibly lose heavily.  He is countering this by stealing their position;  hence his determination to leave the EU on 31 October, and his readiness to accept “if necessary” leaving without a deal.

This is the classic way that a party ensures it is not outflanked by people even further to the extreme than itself.  Johnson wants to ensure that there is no credible home to his right for extreme Brexiteers, and he achieves this by donning the mantle of extreme Brexiteer himself.  And so far, it is working – hence the efforts by Farage, who is genuinely concerned, to stress that he and his party are “not going away”.

But the problem with this is that it leaves Johnson with the great majority of the electorate to his left.  And this brings us to his third set of opponents, the mass of the electorate who, whether or not they want on balance to leave the EU, are not ardent supporters of no-deal.

Johnson’s problem is one that those with extreme views have faced throughout history.  Although there is a broad agreement in the electorate with his policy of wanting to resolve the impasse over leaving the EU, and probably also a majority who feel that democratically, the result of the referendum does need to be honoured, the closer we get to seeing exactly how Johnson wants to leave, the more people have doubts.

His solution is to polarise the electorate, as he did his government, by asking those who are unsure “Are you with me or against me?”  And crucially this is a question to which the answer “Yes but …” is not an option.

It is striking that the proportion of the electorate who want to leave, now, without a deal is rising fast.  It is a measure of Johnson’s success in forcing people to choose one or other extreme.  But it is a two-edged sword, because just as he is firming up the support of those who are vaguely in favour of leaving the EU, he is also crystallising and radicalising those who are opposed.  As the mass demonstrations in the last few days have shown.

The last of his opponents is the House of Commons and the majority of MPs who deplore the idea of leaving with no deal (or in some cases leaving at all).  And, unexpectedly, it is here in the House, where his prorogation ploy would seem to have most damaged his opponents, that Johnson’s move may perhaps backfire the most.

As we explained in our previous essay (“Enter Boris”, 27.07.19), Johnson does have a problem with the House of Commons, where his government is in a minority and where he cannot even rely on all his own party’s MPs to vote with him.

So far though he has been helped by the fact that while a majority of MPs are against his plan to leave with no deal, they cannot decide what they are in favour of in its place.  Every time the House have been asked to vote for something (as opposed to against the government), the opposition have failed to persuade a majority to do so.  In the circumstances the concept of a “Government of National Unity”[2] to stall Brexit has gone nowhere, indeed they cannot even agree on who would lead it, let alone on more important issues like its policies.

And this is what Johnson might inadvertently have changed.  The prorogation cuts the parliamentary time available to his opponents to the bare minimum.  They will in all likelihood have just one shot at stopping him, one last chance to avoid no deal.  The luxury of indecision is removed, the internal debates have to cease, the ability to “wait and see if some better opportunity arises” is ended.

In sport, there often comes a time when the losing side has to gamble all on one last throw of the dice, a “hail Mary” pass or a final reckless attack.  Johnson’s opponents have reached that point:  they have to choose just one plan, and then whether or not they think it is optimal, they have to wholeheartedly go for it, all of them, because there will be no second chance.

Johnson is forcing the EU to reconsider.  He has the Brexit party on the run.  He is polarising the electorate and building support for his extreme position, though at the expense of also rallying the opposition to it.  But by his decision to prorogue parliament and bring the contest in the House to a head, he might just have given the opposition enough backbone to sink him.

For Johnson and his dream of leaving the EU the stakes have just got a lot higher.


[1]           During the 1992 ERM crisis many throughout Europe tried to warn the Bundesbank that its interest rate policy was so damaging to Europe that in response the rest of Europe would eventually rise up and curtail the Bundesbank’s powers, to make sure it could never inflict such damage on the rest of the EU again.  To their surprise they found that the Bundesbank entirely understood this, but felt that even so it had no choice, because their founding law forced them to consider only the German economic situation and forbade them from taking into account the effect of their actions outside Germany.  So the Bundesbank senior management felt unable to modify their slavish adherence to the law even though they knew it put the institution’s existence into peril.

[2]              Itself a huge misnomer because far from uniting the country, half the electorate would be strongly opposed to its main policy.