It might become necessary to destroy British democracy to save it: that’s the argument that is never far from the surface when supporters of a no-deal Brexit flirt with the idea, publicly or privately, of suspending parliament in order to take the United Kingdom out of the European Union by 31 October.
Their argument is that the only majority that can be found in this parliament is to delay the decision. MPs will not vote to revoke Article 50 or for a second referendum, but they have thrice rejected the withdrawal agreement and have voted to extend the Brexit deadline on one occasion – and will do so again. The only way for the Leave vote to be honoured is for Boris Johnson to use his prerogative powers to suspend parliament until after the Brexit date. They believe that the democratic damage of putting aside our elected parliament is a lesser blow than the democratic damage of putting aside the result of the 2016 vote.
There are serious problems with the case for suspension. The first is that while 17 million people voted to leave the European Union, in excess of 30 million people voted in the 2017 general election, and voted for their MPs to have at least a cursory involvement in the issues of the day. Equally importantly, it is likely illegal. Before Johnson became leader, Geoffrey Cox, the Attorney General, surprised several in the cabinet by telling ministers that proroguing parliament would be “unconstitutional, improper but not illegal”.
But the ground shifted under the government’s feet on 18 July, when MPs voted to force ministers to give regular updates to parliament about the progress of efforts to revive power-sharing in Northern Ireland. Most lawyers – including Cox’s opposition number, Shami Chakrabarti, whose legal advice was leaked to the Guardian – believe that vote means that any attempt to suspend parliament would be immediately overturned by the courts. Across Whitehall, civil servants believe that the reason Downing Street has sought outside legal advice on the matter is that their internal counsel points the same way. One constitutional lawyer, whose services have not yet been called upon, quipped to me that while they didn’t see how the government could prorogue parliament, they were happy to charge a sizable fee to tell the Prime Minister that.
That legal reality is part of why opposition leaders, convened at Jeremy Corbyn’s office on 27 August, gave very little time to discussions about prorogation or the formation of a government of national unity. As one of those present reflected, the gathered MPs essentially got together “and agreed that the silly season was over”. They have had a good run airing various impracticable and undeliverable schemes to prevent a no-deal Brexit – and using them as sticks to beat one another – during the parliamentary recess. But, they agreed, the time is now upon them to take serious legislative action to force the government to change hands.
That dynamic was unchanged by the government’s plan to extend the parliamentary recess by a week to further shorten the amount of time that MPs have to take legislative action to prevent a no-deal Brexit. For MPs to stop a no-deal Brexit, they would always have needed to seize control over Parliament’s sitting from the executive – all Johnson has done is move the day of reckoning forward.
Yet it remains troubling that the executive is considering using its prerogative powers to frustrate our elected parliament, the only institution in British public life from which democratic legitimacy ultimately flows.
Control over when parliament sits is one of a number of powers that are nominally the gift of the monarch but in reality rest in the hands of the sitting prime minister. Johnson would not be the first PM to use the power of prorogation to his advantage – the most recent politician to do that was John Major, who opted for a longer-than-expected election campaign in 1997 to avoid having to answer questions in parliament about the cash-for-access row. But nobody could seriously argue that bringing forward the date of an election campaign in order to avoid minor embarrassment is a decision of similar magnitude to mothballing parliament, years before the next election is due, in order to force through a significant and far-reaching change in public policy.
The flirtation with prorogation represents a victory of sorts for Michael Gove, though not in the way that he might wish. Gove, who sharply criticised calls to suspend parliament to deliver a no-deal Brexit during his own leadership campaign, was the most senior Brexiteer not to quit Theresa May’s government. He stayed because, as he urged MPs at the time, while the withdrawal agreement may have been imperfect, its flaws could be tweaked and negotiated away after we had formally left, while voting it down risked undoing the referendum result altogether. That calculation underpinned the thinking of most of the Brexiteers who remained in May’s government, including Cox, whose legal advice on the matter was described by one cabinet minister as “once we’ve left, parliament is sovereign and the things you don’t like about the withdrawal agreement can fall away as needed”.
The Govian argument was rejected, but his insight has gone mainstream among Leavers: that once the UK has legally left the EU, the Brexiteers’ victory will take at least a quarter of a century to reverse, if it can be reversed at all. The democratic damage of mothballing parliament and the economic damage of a no-deal Brexit can be weathered – because the ultimate triumph of leaving will have been achieved.
There are just two problems. The first is that parliament could yet frustrate a no-deal Brexit. But the second is that a similar calculation underpinned Vote Leave’s win-at-all-costs approach to the referendum. That led the campaign to set out a Brexit destination that could never be achieved via negotiation and contributed to the present deadlock. The “victory” of a no-deal Brexit by any means necessary could yet turn to ashes in Brexiteers’ hands, just as the triumph of 23 June 2016 gave way to paralysis.
This article appears in the 28 Aug 2019 issue of the New Statesman, The long shadow of Hitler