Now is the time for democracy, not a fictional Parliamentary sovereignty

By Thomas Lines – August 6th, 2019

In the early years of membership, British opposition to the ‘Common Market’ was led by constitutional conservatives of the Right and the Left, such as Enoch Powell and Tony Benn.  They argued against its deficiencies in democracy, which gave them affront in comparison with the United Kingdom’s parliamentary tradition.  They thought that parliamentary sovereignty – the fulcrum of British constitutional tradition – could only be upheld by leaving the European Economic Community.

However, since then the EEC has evolved into the European Union, which has a proper democratic shape due to the real power and direct accountability of the European Parliament.  I would suggest that its institutions are at least as democratic as those of the United States (with which they have much in common) and a lot more so than the UK’s, with its centralised structure while composed of three-and-a-bit different countries, its appointed and hereditary upper house, distorted electoral system for the House of Commons and hereditary head of state.

And here lies the rub.  Unlike other parliamentary democracies, a new British government does not have to win Parliament’s approval before it takes office: confirmation of a new Prime Minister by the Queen suffices.  That even applies in mid-Parliament in a situation where the single governing party represents only a minority in the Commons (although supported by the DUP’s confidence-and-supply arrangement), while MPs have already rejected the main plank of the new government’s policy – the threat of crashing out of the EU without a deal.

No confidence but no resignation

But with only a few weeks to go till October 31st, those MPs must now wait for an opportunity to express a lack of confidence.  Moreover, we have just learnt that even after a vote of no confidence, a Prime Minister is under no obligation to resign: he can hold on in the hope that the two weeks provided by the Fixed-Term Parliaments Act will not be long enough for the formation of a new cross-party government, and then call a general election at a time of his choosing.  And before that election takes place, he will be able to take the UK out of the EU without a deal and without having to seek parliamentary support for it.

I was taken aback yesterday when I read that Dominic Cummings – who seems to be the real leader of the government, Boris Johnson being its political front man – asserted that this was so.  But it was calmly confirmed on the BBC’s Today programme by Lord Sumption, a retired Supreme Court judge and constitutional authority.  An Old Etonian and former advisor of Margaret Thatcher’s political mentor, Sir Keith Joseph, recent remarks of his nevertheless suggest that Sumption is not a fan of Boris Johnson.

But how can this be?  If the elected chamber expresses no confidence in the Prime Minister shortly after he takes office, how can he be in control of the events that ensue, including a general election as well as a fundamental constitutional change, to be achieved by gravely damaging means that to all appearances do not have majority support in the country either?

The answer lies in the two bulwarks of the British political system: parliamentary sovereignty and constitutional monarchy.  Parliamentary sovereignty has gradually morphed since 1689 into government by Cabinet and, most recently, centralised personal rule by the Prime Minister – all this in a typically British way, with little or no debate or expressed opposition to the changes.  And then, eight years ago, we had an important constitutional change in the Fixed-Term Parliaments Act, passed as ever by simple majorities in Parliament to serve David Cameron’s short-term desire to lock the Liberal Democrats into a coalition for a full five years.

A problem of Hindenburg-esque proportions

This Act allows the follow-up to a statutory vote of no confidence to be controlled by the rejected Prime Minister him- or herself, not a politically detached authority such as an elected President.  This brings us to the position of the Queen.  It is established practice – another of those far-reaching but unwritten conventions on which British politics relies – that the monarch cannot intervene politically.  This has come to mean that in general they must do whatever the Prime Minister of the day advises.  This self-serving governmental interpretation of impartiality means that the Queen cannot exercise any power or discretion even when it is most needed, such as a constitutional crisis of the sort we may be about to face.  This could become a problem of Hindenburg-esque proportions.

In other countries, if a Prime Minister loses a vote of confidence, they have to resign immediately and the constitutional head of state determines what happens next.  Usually, the same person will run a caretaker government, while the President discovers whether there is parliamentary support for a replacement government or if an election is needed instead.

This happened last year in the constitutional monarchy of Spain, where the King used his discretion to ask the previous opposition to form a government after Mariano Rajoy lost a vote of confidence.  Unlike his British counterpart, the Spanish monarch is protected from suspicions of bias by the circumscription of his role in a formal, written constitution.

Essential safeguards do not exist

However, no caretaker government in other countries is permitted to pursue any partisan or controversial policy: that has to wait for a replacement government to emerge according to the procedures.  Least of all can they carry out a big constitutional change, such as taking the UK out of the EU without a deal.

But if Lord Sumption’s interpretation of the arrangements is correct, such essential democratic safeguards do not exist under the purported Mother of Parliaments.

Some people have called Boris Johnson’s accession to office last week a kind of constitutional coup d’état.  However that may be, it seems clear that the ragbag of political conventions and statutes which passes for a constitution in this country is not up to the task at this time.  The means provided by the 2011 Act for votes of no confidence seems to have too many loopholes through which a failed government can pass, while the British version of constitutional monarchy provides no protection from such manipulations either.  The best we can hope for is that the Speaker of the House of Commons will stand firmly by the rights of Parliament, just as his predecessor had to in the early 1640s.