AC GRAYLING: Brexiteer panic now risks crashing the constitution as well as the economy

The explanation Wallace gave was (I quote verbatim) that ‘our system is, winner takes all – if you win a parliamentary majority, you control the timetable. There is no written separation. So it’s, you pretty much are in command of the whole thing. And we’ve suddenly found ourselves with no majority and a coalition, and that’s not easy for our system’.

Apart from the scandalous effort to bypass parliament, and the duplicity of emphatic statements – right up to the last moment – that this was not going to happen, the prorogation effort reveals the state of mind of the Brexit cabal in Downing and Tufton Streets: the Brexiters are in a panic. They know that the following three groups, viz. the British people, an increasingly cohesive set of parliamentary opposition parties, and a significant number of Tory MPs, are against Brexit (and not just against ‘No Deal’ Brexit; but stopping this latter is the immediate step now) – and the Brexit cabal therefore know that this is their last chance to drag the UK out of the EU. In panic mode they are risking a constitutional as well as economic crash by scrambling for the exit in a frantic hurry before they are stopped by the genuine will of the people.

I say ‘risk crashing the constitution’ but in fact they have done so already. More accurately: the whole Brexit debacle has done so; the desperate prorogation ploy is simply the concluding act of the tragicomedy. Tucked in Wallace’s remark to Mme Parly is the key: as Wallace said, ‘Our system is, winner takes all – if you win a parliamentary majority, you control the timetable. There is no written separation.’ He meant that because there is no written constitutional provision which separates the powers of the executive and legislature respectively, the consequence is that in normal circumstances the executive controls the legislature, both because it ‘whips’ the majority (from which the government is drawn) to toe the government line, and because it controls the business and timetable of the House of Commons. One major result of this is that MPs almost always represent the party line rather than the interests of the country or their constituents, because their own jobs depend on obedience to the whips’ demands.

Notice the caveat that it is ‘in normal circumstances’ that the executive controls the legislature, because it is ‘in normal circumstances’ that it is drawn from the majority in the legislature. But Johnson does not have a majority in parliament. There are enough disaffected Tory MPs like Dominic Grieve and Sam Glymah, and enough anti-No-Dealers like Oliver Letwin, to combine with the opposition parties to stop his scramble for a No Deal Brexit. So he is using the power that the unwritten constitution gives him to force his agenda through, by suspending parliament in order to act with unrestricted licence.

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The danger of this situation has long been known. A former Conservative Lord Chancellor, Lord Hailsham, giving the Dimbleby Lecture for the BBC in 1976, said that the British constitutional order is unsafe because governments which control the legislature have unlimited powers to do what they like. He described the British constitutional system as an ‘elective dictatorship’ because of the unbridled power it gives the executive. Long before him, in 1882, Sir Leslie Stephen pointed out that if parliament ‘decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal’. Both William Gladstone and John Stuart Mill concurred; in 1879 Gladstone said of the office of prime minister, ‘nowhere in the wide world does so great a substance cast so small a shadow; nowhere is there a man who has so much power’. And in his book Representative Government (1861) Mill said that what prevents British governments behaving in the way described by Leslie Stephen is a sense of ‘constitutional morality’ – that is, a personal sense of restraint and probity on the part of individual politicians, not any external constitutional or legal restraint upon the government.

The Harvard University political scientists Steven Levitsky and Daniel Ziblatt channel Mill on this point when they say in their book How Democracies Die (2018) that until recently – until Tump they mean – US democracy was protected by an ‘unwritten democratic norm’ governing politicians’ behaviour, namely, ‘the idea that politicians should exercise restraint in deploying their institutional prerogatives’. I italicise this because as Levitsky and Ziblatt show, Trump brazenly ignores it; and in the UK Johnson and Cummings – i.e. the Leave campaign, now occupying 10 Downing Street – ignore it too. But whereas in the US there is a constitution and an independent congress checking the limits of Trump’s behaviour, in the UK there is no protection against unscrupulous politicians ignoring the ‘tradition of good behaviour’ – the ‘constitutional morality’ – that alone protects the British people from a tyranny as absolute as that in today’s North Korea.

The last time that parliament was prorogued so that the executive power could do what it liked resulted in the Civil War of 1642-51 – a war between crown and parliament – in which Charles I was executed for treason to his people. In the Glorious Revolution of 1688 parliament de facto wrested from the crown almost all its remaining ‘prerogatives’ precisely to prevent any monarch from exercising arbitrary power. But the result was not to restrain arbitrary power as such; instead, arbitrary power thereby came to rest with parliament – and more particularly, with the executive drawn from the majority in parliament. This development was cemented by the fact that when the Duke of Hanover became Britain’s King George I in 1714 he could not speak English and therefore did not attend cabinet meetings.

The situation in today’s UK, the UK of August-September 2019, is that an executive – consisting of Johnson, Cummings, the ERG and the dark figures of Tufton Street; cabinet government has ceased to exist too – is opposed by the legislature because the unusual circumstances obtain in which the executive does not reliably control a majority in the legislature. (At time of writing its majority is technically one but in reality does not exist.) Therefore the executive, trying to hide behind a smokescreen of allegedly normal constitutional practice, is shutting down parliament so that it can act without restraint.

To do this in the face of an extremely controversial and damaging set of imminent possible developments affecting the economy and therefore the lives and welfare of millions of citizens is the height of constitutional impropriety and irrespinsibility in a country that views itself as a democracy. A government exists to serve the people, not to harm them in the interests of a clique. Even if Johnson were actually and genuinely to believe that he was championing the cause of those who voted Leave in the 2016 referendum – and who could believe that this is his motive! – he would still be perpetrating a profoundly undemocratic disservice to the country, because in the 2016 referendum (as one must endlessly and tirelessly reiterate at every opportunity) only 37% of an unfairly restricted electorate – that’s 26% of the population – voted to Leave following a campaign in which the pro-Leave side was subsequently found guilty of electoral crimes. There is no basis in fact, reason or constitutional propriety for Brexit, just as there is no reason for it (no conflict with the EU, no harm done by membership to the economy – exactly the opposite!) – other than the longstanding desires of a clique, the Eurosceptics, whose own interests are better served outside the EU than in: one example being the forthcoming EU law against tax avoidance by holding funds in offshore tax havens. Hundreds of billions of pounds are at stake for these individuals – the unseemly haste and panic of the current Brexit endeavour may have something to do with the imminence of that new EU tax law; it comes into force in January 2020.

The long and short of Johnson’s prorogation ploy, independently of what parliament and people will achieve in their aim of stopping it, is that it has torn the last atom of fig-leaf from our disastrous constitutional arrangements. There now has to be and will be a major drive for constitutional reform, for codification of at least the central features of the constitution governing the nature and extent of executive powers in the state, and the final and unequivocal subordination of those powers to the powers of the legislature.

The fight between tyranny and a nascent democracy that started in the 1640s is unfinished. Today the fight is between a flawed and tainted semi-democracy which still has the power to enact a law requiring the murder of blue-eyed babies, and a proper democracy. In their ham-handed blundering attempt at tyranny, Johnson and Cummings have killed the old constitution – about the only service they will ever perform. But in the process they are putting us all at very great risk of harm. They must be fought, on the streets if necessary, and stopped. And then the task of necessary reform can begin.