In a rather novel decision the United Kingdom’s Supreme Court has decided that its Prime Minister, Boris Johnson, acted unlawfully in proroging Parliament.
While I think the decision is unfortunate because it will interfere with Brexit, I rather like the limit it places on Executive power both in the UK and here in Canada. It effectively sets out a boundary which a Prime Minister cannot cross and that boundary is the right of Parliament to conduct its business.
Quite rightly, Boris wants an election in the face of this defeat. Unfortunately, the legacy of Nick Clegg in the form of the fixed term Elections Act prevents the very natural process of a government, thwarted by the Courts and Parliament, seeking a new mandate. Labour realizes that if an election were to be called it would lose in a big way. The remainers also realize this and will try to legally hamsting a no-deal Brexit in what can only be described as a rump Parliament.
The decision of the United Kindom’s Supreme Court, (a Blairite innovation), combined with the idiocy of the fixed term under the Elections Act, leaves British politics in a quagmire. It completely hobbles Johnson in any negotiation with the EU because he is bound by the remainer’s law requiring him to seek an extension in the event of no deal.
It is not at all obvious what a way forward for Johnson and Brexit looks like at this point. The odious Speaker Bercow has recalled Parliament. But it is not at all obvious how the business of that Parliament is to be conducted.
What had been a minor constitutional crisis has now become a full blown question of governance.
Breaking the impasse is going to require more than just “muddling through”.
Boris could resign and make way for a “caretaker” government but that raises the question, “Headed by whom?”. Corbyn appears to be a non-starter and it is difficult to see how a Lib-Dem Prime Minister could summon a majority. Boris could stay on – as he says he will – and then? It is not clear what he would actually be able to get through this Parliament.
The problem here is “this Parliament” so finely divided between Leavers and Remainers in all their many varieties. The fixed term provision of the Elections Act, a provision which is entirely alien to a Parliamentary Democracy, has actually broken the system. Prior to the fixed term Boris would have simply asked the Queen for an election and, likely with relief, the Queen would have given it to him.
And that may yet happen. The one person in England who is not bound by the idiotic “Fixed Term Parliaments Act” of 2011 is the Queen. And she happens to be the only person in England who can dissolve a Parliament and call an election on her own iniative. Yes, this would be more than a little unconventional but it would be the very opposite of undemocratic. Typically, the Monarch acts on the Advice of her Ministers. And Boris has been loud and clear on wanting an election. But he, legally and constitutionally cannot call an election in the face of the Fixed Term Parliaments Act. The Queen can.
In this case the residual power of the Crown is pretty much the only solution to this Parliament’s deliberate thwarting of the result of the Brexit Referendum and its willingness to ignore the manifesto commitments of both the Conservative Party and Labour in the last General Election.