How Johnson’s prorogation tactic threatens democracy itself

John Gloster-Smith takes an in-depth look behind the current crisis in the British democratic system that has led to what some commentators have described as a ‘soft coup’ by the government which is led by Prime Minister Boris Johnson.

Why has Johnson’s prorogation of Parliament shortly before Brexit caused such outrage? Non-UK readers might be puzzled but to many observers within the UK, in the midst of the struggle over Brexit that has fractured the nation, it is already being called a “coup”, an “attack on democracy”, and an “authoritarian” action from the leader of the Vote Leave movement who campaigned in the name of democracy. More thoughtful observers say that within reactionary nationalist populism in many countries there is an authoritarian undercurrent, and this is arguably its British manifestation.

Democratic outrage

Prime Minister Johnson’s announcement of the prorogation of Parliament until shortly before Britain is due to leave the EU has stunned and outraged many democrats. The Speaker of the House of Commons has called it a “constitutional outrage”. Observers should by now be under no illusion that the Vote Leave Brexiter faction that has captured the government is being led by a very determined and ruthless operator, advised by Dominic Cummings, who is cleverly outmanoeuvring his opponents in his bid to drive the UK out of the EU. By adroitly considerably limiting the time for debate, parliamentarians are now left with very limited options to stop him imposing a No Deal Brexit on the EU. To add to the already toxic mix of economic dangers inherent in the massive disruption to trade with the UK’s biggest trading partner, can now be added a constitutional crisis and a potentially very damaging attack on Britain’s system of government.

Constitutional damage

The charge that can be laid before Johnson is that he has used prorogation to frustrate Parliament’s democratic right to exercise its function of scrutiny of the executive and of holding it to account.

Non-UK observers are puzzled and astonished at what is happening in this perceived stable, moderate and law-abiding country. Yet within the UK, for political observers this has been a problem waiting to happen, and the “Revolt of the Left Behind” shown in the 2016 referendum has brought it to a head. As the so-called “mother of Parliaments”, Britain has a famously, or now-infamously, unwritten constitution. It is reliant on a mix of laws, historic documents, court judgements and written authorities bound together by convention, the “established way of doing things”.

One might argue that this crisis has exposed an old, long-standing flaw; that of the nature of the relationship between the government and Parliament. Parliament is, constitutionally, the “Queen-in-Parliament”. Parliament is democratically elected under the Simple Majority or First Past the Post (FPTP) electoral system, which itself is not very representative. The Prime Minister (PM) is appointed by the hereditary monarch from the party, or occasionally, parties that have a majority, and the PM chooses a government. The Queen consents to legislation, and that legislation is introduced and piloted through Parliament by the government. The Queen holds certain prerogatives, including the power to prorogue or dissolve Parliament, acting by convention on the advice of the PM. Now, the PM has “advised” the Queen to prorogue Parliament, ostensibly to prepare for a new session on 14 October, but in reality to prevent measures being passed by Parliament that would have, it seemed, prevented him carrying out a No Deal Brexit on 31 October.

This is a system that has complacently endured for centuries and has acquired a hallowed status. Meanwhile other countries who have become democracies have created more water-tight systems, often in the light of reactionary forces trying to prevent the emergence of democracy. In Britain, much has tended to rely on the constituent parts abiding by the “rules of the game”. Until a mega-crisis comes along that blows it apart.

A painful history of conflict

Parliament has been prorogued before in controversial circumstances. However, the last time the monarch prorogued Parliament for more than a few days for political rather than procedural purposes was in 1685 when James II decided to set aside discriminatory religious laws in order to promote Catholicism in a fiercely Protestant country. By 1688 the resistance had grown so strong that he faced invasion from the Protestant Dutch under William of Orange, invited by Whig opponents of James, and when his general, John Churchill (the future Duke of Marlborough and ancestor of Winston) refused to engage William, James fled the country. The Bill of Rights was passed in 1688 to limit the powers of the monarchy, and became a key component of the constitution. This began to draw to a close a bitter conflict over the exercise of the royal prerogative that in 1642 saw the outbreak of civil war.

Thereafter, the monarch was obliged to rule with Parliament, but the potential for tension between the two parts of the system remained. In time, it was the PM rather than the monarch who exploited the inherent powers of the monarch to control or “manage” Parliament. The sequence of Parliamentary reform measures since the 1832 Great Reform Act never addressed this area. In modern times political scientists have argued that Parliament was at times excessively subject to the control of the PM and governing majority of the day, and some called it an “elective dictatorship”. While efforts have been made since the 1970’s to give Parliament more influence over the government, the main elements of PM and governing majority power have remained intact.

Conflict between government and Parliament

The Brexit crisis has resurrected this age-old tension that lies at the heart of government. Early on, PM May attempted to deal with Brexit as a treaty matter between the government and the EU, not requiring Parliamentary involvement as it was subject to the royal prerogative. Yet Parliament still retained a Remain majority which was, perhaps reluctantly, observing the result of the 2016 referendum. The Miller Case (2017) was an important milestone in that the courts ruled in favour of the overriding constitutional principle of the Sovereignty of Parliament, forcing May to obtain Parliamentary consent to the activation of the Article 50 procedure to leave the EU. Thereafter, cross-party opponents, in defiance of their leaders on both sides, and led by the redoubtable Dominic Grieve, have insisted on the right to consent to the terms of Brexit. Faced with at times dubious tactics by May, measures were passed to ensure May obtained that consent.

However, the problem for Parliamentarians has in part been down to themselves and a failure early on to tie the government’s hands and ensure accountability. This is probably in part due to how transfixed politicians were by the 2016 vote and the perceived need to “respect the result” despite its many failings. Thus when May’s deal was rejected by Parliament in 2017, by an unholy alliance of right wingers and Remainers, they were left with the “default” position of Article 50, which they had earlier agreed to, in which the UK would simply leave within a certain time span. Thus, the Johnson regime now argues, it is simply fulfilling what Parliament earlier agreed to, “come what may”, “do or die”.

Rival claims to democracy

While the conflict stirs passions both in Parliament and in the country over whether to leave the EU and on what basis, it should be pointed out that there are competing claims to democracy at work. Parliamentarians claim a right to hold the government to account and to consent to executive measures as the traditional, and therefore in constitutional terms conventional, democratically elected legislative body. It rests this claim on the overriding principle of Parliamentary Sovereignty, recently endorsed by the Supreme Court in 2017. The Johnson regime claims a prior legitimacy based on the 2016 referendum result, that Britain would simply leave the EU, as the “will of the people”. They allege that Parliamentarians are not “respecting the result” and are “betraying the people”. They also point out that Parliament has already voted to leave the EU.

This is a necessarily brief summary of what is a huge area of dispute, but suffice it to say that we have here a conflict between on the one hand a concept of direct democracy, which is not a settled part of the constitution, and is technically advisory and not mandatory. On the other hand we have traditional representative democracy. Populists have been advocating the use of direct democracy to, as they claim, restore or create a direct connection between “the people” and their leaders. Observers point out that many populists are authoritarian, or have authoritarian tendencies, such as Trump, Orban, Erdogan, Bolsonaro and Duterte.

The risk of authoritarianism inherent in the notion of direct democracy should be patently clear. It was a device used to legitimise annexation of foreign territory by dictators like Hitler, and most recently Putin after the seizure of the Crimea in 2014. A recent commission (2018) has warned against the wrong use of referendums in Britain and recommended that they be subject to regulation.

The crisis has come to a head

The conflict over Brexit was bound to come to a crunch as the deadline to leave neared. Parliamentarians were opposed to the No Deal implications of the direction of travel of the Johnson regime and hoped to prevent it. Johnson heads a team of people who led the marginally successful Vote Leave campaign in 2016 and many are determined neoliberals hoping to use Brexit to complete the “Thatcher Revolution”. They are equally determined to leave the EU, deal or no deal, on 31 October.

Opposition politicians have shown promising signs at long last, many say fatally overdue, of collaborating to pass legislation to prevent a No Deal Brexit. It has been suggested that this agreement, on 27 August, pushed Johnson to activate his long-mooted plans to prorogue Parliament and make it very difficult to pass necessary legislation. This latter move would be based on the earlier work of Letwin and Cooper to take control of Parliamentary business from the Government who usually control it, and pass a bill very quickly.

Cleverly, Johnson has narrowed the window of opportunity and is challenging his opponents to use the nuclear option of a Vote of No Confidence to bring down the government. Given the Fixed Term Parliaments Act (2011), there would be a delay of 14 days in which options for a new government would have to be reviewed, after which Johnson proposes, under the royal prerogative, to choose a date for the election for after 31 October, in other words after Brexit has taken place. His enemies are thus boxed in.

“The People versus the Politicians” demagoguery

This is a ruthless game, and many consider that Johnson is really intending to hold a general election which will be a “People versus the Politicians” election. He has proposed a raft of electoral sweeteners to avoid the damage May suffered in 2017 when attention in the campaign shifted from the need for strong government over Brexit to the lack of attention to domestic, non-EU matters. Thus he is proposing measures on the NHS, education and the police, although observers say that much of the money is from funds already committed and is thus “fake” window-dressing.

The real aim of the campaign will be to blame the breakdown over Brexit on the EU and on “Remainer” politicians in Parliament who have allegedly frustrated the government’s good intentions. What is so deadly about this tactic is

1. It taps into a powerful thread in the widespread support for populism in Britain of distrust for politicians and a dealignment from traditional voting patterns in favour of new forces. Politicians at Westminster are widely seen by these people, Leave voters in the main, as a remote, self-serving and elitist “political class”, detached from the needs of “ordinary people”, of whom Farage presents himself as one.
2. There has been a shift in opinion in favour of a “strong leadership” and people who will take action to sort out the problems without democratic niceties. A study of political opinion in 2019 by the respected Hansard Society makes chilling reading. It found, for example, that when people were asked whether “Britain needs a strong ruler willing to break the rules”, 54% agreed and only 23% said no.
3. By posing as the champion of “the People”, Johnson could effectively undermine the authority and power of Parliament, by securing a voter endorsement for his actions. A shift towards more authoritarianism would be under way.
4. His opponents are divided and lack a single, strong leader. The one person who could in theory take on this role is himself a Brexiter, the official Leader of the Opposition, Jeremy Corbyn, admittedly a “worker’s” Brexiter, but certainly unenthusiastic about supporting the widespread anti-Brexit feeling in Labour and in the country.
5. The electoral system supports a strong, united party when their opponents are divided, since under the simple majority or FPTP system when one candidate has more votes than his or her nearest rival. Thus their majority in Parliament will be unrepresentative. No Remain electoral alliance is so far forthcoming.

Britain now faces two months or more of turmoil, and much more if a No Deal Brexit occurs on 31 October. The outcome is very uncertain, but what should be clear is that what is occurring is not simply a fissure in relations with the EU and a breakdown in trading arrangements, but a crisis of democracy itself. All true democrats should be deeply concerned.