So, in light of the Brexit deadlock, we need a “Government of National Unity” according to the former UK Prime Minister Sir John Major (and others). But how do we get from here to there? He (and others) are pretty clear that a General Election would be divisive, time-wasting and pointless – not least since the two main parties are as divided amongst themselves as they are between one another. No clear “will of the people” is likely to emerge.
On top of which no one can trust the Prime Minister Boris Johnson and his adviser, Dominic Cummings, not to fiddle the election date for political purpose, such as sneaking Britain out of the EU without a deal.
What are the constitutional options? Parliament, or more specifically, the House of Commons, has the power to bring down a Government in a vote of no confidence. The assumption is that this would probably lead to a General Election (under the Fixed-term Parliaments Act) if no other MP was “best placed” to take over as PM. But there is also a useful traditional power for MPs to vote out the Government and then replace it without an election.
This might be a handy ploy if there really is enough cross-party opposition to Boris Johnson’s government – and majority support among MPs for some other way out of the Brexit maze. It would mean more than simply “Parliament taking control” with the occasional anti-No Deal vote. If Parliament really wants control over deciding how Britain leaves the EU, it also needs a Government to bring its wishes into effect.
UK Parliament or Executive: which is top dog in Britain’s constitution?
Boris Johnson is telling all who are willing to listen that he has a mandate from the people to cling to his post as prime minister come what may. This gives him remarkable powers – to ignore the long established traditions of his party and of Parliament regarding when a prime minister has run out of road and should resign.
Does he have any constitutional justification for his view? There have certainly been questions asked about whether Britain’s “sovereign” Parliament as important – or as sovereign – as we assumed. There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern and the Prime Minister have his way.
This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’s prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding the legality of its use, like most actions of the Executive (including those founded in the royal prerogative).
The argument against Parliament
So the question arises, which is the premier body in the British constitution, which is top dog: the Executive or the Legislature? As it happens, the historian Robert Tombs had answered this question to his own satisfaction in the Times some weeks before Miller in a piece headlined: Parliament has no right to plot a Brexit coup.
Continue reading →
2 Comments
Filed under Analysis, Comment, Constitution, EU law, History, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics, Uncategorized
Tagged as analysis, Article 50, Boris Johnson, Brexit, current affairs, current-events, European Union, government, Lord Pannick, Miller v Prime Minister, Parliament, Prorogation, Robert Tombs, UK Parliament