PROF. LAL MONTHLY „BUSINESS STANDARD“ COLUMN
The fabric of Britain’s unwritten constitution has been dangerouslydamaged by partisan passions over Brexit
During the last five months I have been inLondon watching with growing astonishmentas the world’s oldest democracy (based on anunwritten but well-honed constitution) goes througha nervous breakdown. With Theresa May’s withdrawalbill agreed with the EU being defeated thrice by massiveParliamentary majorities for making the UK, ineffect, a colony of the EU for the indefinite future, MsMay reneged on her oft-repeated slogan“No deal is better than a baddeal” by not letting the UK leave theEU on WTO terms at the end ofMarch. Instead she asked for anextension of the withdrawal datefrom the EU to the end of October.
In the following interregnum, shewas ousted from the premiership ofthe Tory party, which elected BorisJohnson as the leader and thenceprime minister (PM) at the end ofJune with the pledge that the UKwould leave the EU on October 31(Halloween) with or without a deal(on WTO terms). He was faced by a hostileParliamentary majority of those who had supportedRemain in the 2016 referendum, even though in thesnap election of 2017 nearly all stood on manifestosto implement the referendum verdict of leaving theEU by the end of March 2019.
Surprisingly, Mr Johnson succeeded in negotiatinga new deal with the EU, which removed the moreobjectionable clauses of Ms May’s withdrawal agreement,including the notorious Irish backstop, whichwould have tied the UK as a permanent vassal of theEU, subject to its laws as enforced by the EuropeanCourt of Justice. But, instead of supporting and laudingthis deal, the Remainers have sought to thwart itby using various Parliamentary procedures (unlawfulunder the conventions of the unwritten constitution)to legislate delays in the withdrawal date. They havealso refused to allow a fresh election despite theTories losing their Parliamentary majority. So, the polity now is in limbo. How has this extraordinaryconstitutional impasse been allowed to develop?
The proximate cause was the Shakespeareandenouement after David Cameron —who had calledthe 2016 referendum—resigned as PM after hisRemain side lost. In the following election for theTory leadership and thence PM, Mr Johnson, theleader of the Leave campaign, was fatally stabbedon the morning he was toannounce his candidacy by hiscampaign manager Michael Gove,who chose to stand himself. Theother Leave candidate Mrs Leadsoncommitted electoral suicide bymaking foolish remarks about thechildlessness of the other candidate(the Remainer) Ms May whowon the leadership election andbecame PM by default.Uncharismatic but stubborn, withlittle political nous nor intellectualdepth, she foolishly called a snapelection which destroyed the Torymajority David Cameron had won and was forcedinto an electoral pact with the Northern Irish DUPfor a Parliamentary majority.
She then conducted the most disastrous negotiationswith the EU as a supplicant rather than asthe proud leader of a major economy and militarypower wishing to reassert UK sovereignty and theprimacy of its distinctive non-European CommonLaw. By agreeing to the EU’s sequencing of negotiations,leaving the all-important post withdrawal economicrelationship with the EU to the last, she gavean inherent advantage to the EU which MichelBarnier and his team exploited brilliantly to tie theUK indefinitely in the EU without any say.
Having escaped this trap, Mr Johnson is nowfaced by another problem created by Mr Cameron.When negotiating a coalition government with theLiberal Democrats, Mr Cameron — seeking to ensurea five-year term to carry out his legislative agenda — agreed to a LIBDEM proposal for a fixed-termparliament. This went against one of the importantrules of Britain’s unwritten constitution, whichallowed the prime minister to call an election wheneverhe deemed it desirable for national or partypolitical reasons. Under this new constitutional lawa super parliamentary majority is required for anelection to be called before the five-year parliamentaryterm ends. Mr Johnson has failed thrice to getthis majority for an election to clear a parliamentdominated by Remainers from thwarting the executive’swill.
In the past, as part of the unwritten constitution,the judges could be expected to find a way throughthis constitutional impasse. Here again past unwiseconstitutional change have led to another trap. Inthe past the Law lords in the House of Lords alongwith the Lord Chancellor (from the ruling party)dealt with this legal process. But Tony Blair in hisdesire to ape the European Court of Justice decidedto set up a Supreme Court in which the Law Lordsbecame virtually independent agents.
The dangers of this became apparent when thisnew court, against precedent and previous laws,deemed Mr Johnson’s prorogation of parliamentillegal. It turns out that Lady Hale (known asSpiderwoman for the brooch of a spider she woreduring the legal proceedings) was a Remainer. Noimpartiality could be expected from this court if theFixed Term Act was legally challenged.
Then there is the Speaker of the House ofCommons, John Bercow, an avowed Remainer whoused what is meant to be an impartial position toallow an unprecedented and, according to the unwrittenconstitution (as pointed out clearly by Jacob ReesMogg the leader of the House), an illegal ruling allowingparliament to take over the business of the Houseinstead of the executive. This allowed various delayingtactics to be enacted into law. Fortunately, he is retiringat the end of October and this trap may be removedin the future.
But, there may be some light appearing at the endof the tunnel. Forced by a Parliamentary Act passedthrough the unconventional takeover of legislativebusiness by the Remainer parliament permitted byMr Bercow, Mr Johnson was forced to ask the EU foran extension to the UK’s current departure date fromthe EU of October 31 to January 31, 2020. This hasjust been granted as a “flextension”, to end early ifMr Johnson’s withdrawal deal is ratified by the UKand European parliaments by end November, or aftera UK general election in December. Otherwise therewould be a “no deal” exit on January 31.
With parliament due to vote (as I write) on aDecember election based on a proposal by the LIBDems and the SNP — both want an early electionfor their own special reasons — for a parliamentaryvote, which only requires a simple majority, the currentBrexit impasse could end. If Mr Johnson winsthe election as expected, he hopefully will have thefixed term Act repealed, the Supreme Court abolishedand replaced by the old final Appeal Court ofthe Law Lords supervised by a political LordChancellor, and convert the conventions about theSpeaker’s discretionary powers into laws. This wouldrestore the fabric of Britain’s unwritten constitution,which has been so dangerously damaged by the partisanpassions of Brexit.
Source: Business Standard