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Prorogation, Salisbury and Self-Denying Ordinances

“We’ve gone from a democratic exercise involving over 33 million people to the future direction of the country being decided by c.100k+ people while making the rules up as we go along and in which suspending parliament is being seriously discussed. Well done everyone.”
Philip Cowley, Professor of Politics at Queen Mary University, London

A quote that’s as brutal as it is accurate. The UK has been slowly lurching into a constitutional crisis for at least the last six months, ever since it became clear that there was a possibility the Brexit referendum would not be implemented. From the Yvette-Cooper innovations to seize control of Parliament, the repeated defeats on the not-so-Meaningful Votes, the Speaker playing fast and loose with convention and the farce of the Indicative Votes in which Parliament first voted a defiant ‘no’ to all eight options of how to resolve Brexit and followed it up by again voting ‘no’ to the four least unpopular options, we’ve gone from bad to worse. As Cowley says, we are now at a stage where the prorogation (suspension) of Parliament is being seriously discussed, albeit as an outside option and for a short space of time.

The root cause of this is a Parliament in which approximately three-quarters of MPs voted Remain, being asked to deliver a policy to leave the EU, a policy which they fundamentally opposed. One can argue about how to assign blame – on May, Corbyn, the ERG, the Lib Dems, Dominic Grieve, the SNP – goodness knows there is enough to go around, but the underlying cause is clear: it’s very hard to get a majority of people to vote for something they don’t believe in.

Certainly, it wasn’t inevitable that it should end up this way. A different Prime Minister might have achieved a better result. But when one looks at the voting pattern of Leavers, it’s clear that in a Parliament where 52% of MPs had voted Leave, Parliament would have voted for at least one of the options. Ultimately it was not Leave MPs that voted to delay us leaving the EU on March 29th – that vote was carried entirely by MPs who voted remain in 2016. 

Now, I will grant that these actions have been legal. The referendum was, technically speaking, advisory and the machinations of Parliament have also not contravened any law. But in a country without a formal constitution, it would be a mistake to downplay the role of convention. Constitutional crises typically arise precisely when something is legal but considered unacceptable – and they are crises, in part, because it is unclear how to resolve them. Those comfortable with Bercow’s machinations, because they are legal, may wish to reflect that proroguing Parliament would also be entirely within the law.

There is a growing distrust of our institutions of government, a distrust that can be traced directly to the failure of Parliament to deliver Brexit. That point is important: it is not to a dislike of any particular deal. Both from studying the opinion polls and from my own experience on the doorstep, it’s clear that the decisive shift took place not when May’s deal was presented, or after any particular vote, but after March 29th, when we had been told more than a hundred times we would leave, and we hadn’t. The dramatic swings to the Brexit Party and the Liberal Democrats also took place after this point. Of course, it is not a constitutional crisis in themselves that Labour and the Conservatives came 3rd and 5th in the European elections, or are regularly placing 3rd and 4th in polls for Westminster: these two parties have no God-given right to rule. But as a symptom it is significant: it demonstrates there has been a nationwide collapse of trust in our institutions, our Parliament and our two leading political parties. If large numbers of people suddenly start voting for those for whom it would have previously be unthinkable to, it is a sign that times are febrile, and that other things previously considered unthinkable might soon become conceivable and accepted.

The Dollar Auction

There is a peculiar type of auction in which you can sell a dollar bill – an ordinary dollar bill – for well over a dollar. 

It works as follows. The players place bids as normal, but there is a twist: in this auction, the winner gets the dollar, but both players have to pay their bids. If your opponent has bid 60c and you have bid 50c, it is rational to bid 70c: that way you gain 30c (i.e. $1 – 70c) instead of losing 50c. But once you’ve done that, your opponent should naturally bid 80c. Brutally, this logic doesn’t stop when the bids exceed the value of the dollar bill. Even if you’ve just bid $2 to your opponent’s $2.10, it’s rational for you to keep bidding, to offer $2.20, to cut your losses from $2 to a mere $1.20 (i.e. $2.20 – $1).

The only way to win this game is not to play. And unfortunately, constitutional crises have a lot in common with the dollar auction.

For something important – and Brexit is certainly important – it can be tempting to strain convention or push laws to the edge to gain an advantage. After all, it’s only marginal: British democracy won’t collapse because the Speaker makes an innovation. But straining convention isn’t done in isolation. As well as the immediate effect it has a wider, more important one: to create an environment where such behaviour becomes more acceptable. 

If one side has played fast and loose with the rules, it’s clear that the pressure increases on the other side to do so as well. But wait a minute, why stop there? If they used loopholes to gain an advantage, surely we shouldn’t just get even, but should gain an advantage itself. What was once seen as a transgression becomes the new baseline against which to measure future transgressions, creating a ratchet effect in which both sides can begin doing things that would, at the start, have appalled them. For like the dollar auction, once the game has started, you always lose more by stopping to play. After all, your next action is only a little bit worse than the one before, and if you don’t take it, you’ll lose the whole thing and it’ll all have been for nothing. And sometimes, in the escalation, there are tipping points, where the dynamic changes. March 29th was one of those.

No single vote has blocked Brexit – and yet Brexit has been blocked. No single petition to revoke, or call for a second referendum, or legal challenge is itself a constitutional crisis, but they contribute to it. Is the idea of prorogation worse than the Speaker’s disregard of convention? Probably. Is it much worse? Probably not. Would it even have been contemplated had Brexit been delivered. Almost certainly not.

And what comes next? Does some of Parliament choose to continue sitting, nominally unlawfully, but perhaps morally more in the right? What if they revoke Article 50, while sitting unlawfully? Who does the EU accept as representing the UK, the Prime Minister or the Speaker? What if one side tries to prevent the other from action, perhaps by ordering the police to bar premises? 

And this is the way democracy ends, not with a bang, but with a whimper.

A Lesson from History: the Salisbury Convention

We are still a long way from that. We are not in the days of Cromwell, when Pride’s Purge saw the Parliamentary army forcibly depose almost half the MPs, to pave the way for the execution of Charles I and the establishment of the Commonwealth. But the fact that one can even make the comparison demonstrates that we have fallen far from what one would have hoped of the mother of parliaments.

Parliament could have done better to have learned from history. For there was a time before, in living memory, when Parliament had the legal authority to block change, but no moral mandate to do so.

In July 1945, a record swing to the Labour Party swept Clement Attlee into power with a majority of 145 seats. Elected on a platform of sweeping reform, their manifesto contained plans to establish the NHS, nationalise industry and lay the foundations of the modern welfare state. All that stood in their way was the House of Lords, where fewer than 3% of the peers supported Labour.

Legally, the Lords had an absolute right to block any and all of Labour’s legislation, most of which they strongly opposed. Though Attlee could have ultimately got it through by using the Parliament Act, such opposition would have significantly hindered the reforms. Despite their legal entitlement, the Lords recognised that it would be morally unacceptable to oppose the expressed will of the people in this way and so adopted the Salisbury Convention: a commitment that, for any measures included in Labour’s manifesto, the Lords might scrutinise and amend such legislation, but would not ultimately block it. The Convention was a success: the role of the Lords preserved, the welfare state created and a constitutional crisis averted.

The Remain-supporting MPs in the Commons would have been wise to learn from this and to adopt a similar self-denying ordinance: that they might scrutinise and amend the bills implementing Brexit, but not ultimately block them. For just as, legally speaking, the Lords could block the Commons, but morally should not have so, too, legally speaking, the Commons can refuse to implement a referendum, but morally should not.

The Way Forward

Even now, there is a way out of the morass. The UK is due to leave the EU on the 31st of October. There are two ways to do so: with a deal, or without a deal.

A deal exists, consisting of the Withdrawal Agreement. Whether you like it or not – I personally do not – it gets us out of the EU, delivering Brexit. There will be no other deal: the EU has made clear, repeatedly, that ‘not a dot or comma will be changed‘. The fact that they are serious about this is perhaps one of the few things on which I agree with my Remain supporting friends.

If this is the case, the choice is simple. To avert this constitutional crisis, Parliament must deliver Brexit. Delay serves no purpose; as Barnier has said, Britain has three options: the Withdrawal Agreement, No Deal or No Brexit. Ultimately it was always likely to come to this. Implicit in Brexit was that our choices were always limited by what the EU would offer us.

It is right that the choice of how to leave should be made by Parliament. They should vote on whether to accept the deal or to reject it, and therefore to leave without one. If they choose the former, it is equally right that Parliament should be heavily involved in the next stage of the negotiations to determine our eventual trading relationship – whether that be a free trade agreement, a customs union or even joining the single market. The referendum did not say how we should leave – but it did say we should leave.

If Parliament continues to defy the will of the people, the current constitutional crisis will worsen. We will enter unpredictable territory. The results may be relatively benign – perhaps Jo Swinson or Nigel Farage in Number 10, a second referendum (with who knows what result) or a brief prorogation with no harm done. But perhaps we will lurch a couple of steps closer to the precipice. Sometimes no-one can see where the edge is until it’s too late. 

 

This post was originally published by the author on his personal blog: http://edrith.co.uk/blog

About Iain Mansfield

Profile photo of Iain Mansfield
Iain Mansfield is a former senior civil servant who worked extensively on trade, competition and higher education policy, including spending over two and a half years in Manila as Director of UK Trade & Investment for the Philippines. He was the winner of the Institute of Economic Affairs Brexit prize and a local councillor candidate for the Conservative Party. He writes in a personal capacity and his regular blog is at http://edrith.co.uk/blog

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2 comments

  1. Did you know that proroguing Parliament is by no means unknown in UK politics. The last case was in 1997 when John Major did it to prevent publication of a “Cash for Questions” report – see https://www.independent.co.uk/news/the-sleaze-report-scandal-that-changed-the-face-of-politics-1248836.html

    Incidentally, Major is now claiming that any government that prorogues Parliament should be taken to Court. The BBC etc. have suppressed any mention of this irony.

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