The obscenity of the prime minister’s behaviour neither begins nor ends in the law
The Supreme Court has this week provided the scene for constitutional drama not witnessed in over 300 years. A former Conservative prime minister has, in the nation’s highest court, accused the current Conservative prime minister of lying and behaving unlawfully. Judges have heard the numerous ways in which our convention-based constitution could succumb to tyranny. Leading barristers have outlined the now fundamental conflict between the executive and parliament. This, in particular, looks set to be one of the great battles of our age.
The legal arguments have proven chilling. Submissions proposed that, if any prorogation is solely a matter of political judgment or prime ministerial discretion, the PM’s power is almost unlimited. He could prorogue just as parliament was legislating to stop prorogation. He could prorogue to prevent a vote of no-confidence. He could, astonishingly, prorogue prior to renewal of legislation on the Army, thus effectively disbanding it. It is wholly extraordinary that we might have operated for so many decades with so few safeguards.
And yet the legal focus has also been a distraction. The justiciability and lawfulness of parliament’s prorogation is incredibly important—yet it is not the most important element. Even if the judges determine they can make a legal ruling on Boris Johnson’s actions and find them to be lawful, those actions remain neither politically nor morally acceptable. The judicial wrangling this week has not merely illuminated the potential deficiencies and loopholes in our constitution, but in our entire democratic culture.
In the short term, we find the acme of this problem in Johnson’s next decisions. The government has not committed to reinstate the parliamentary session early if the court rules against it. Astonishingly, it has not even pledged not to prorogue parliament once again, on the basis that the court cannot judge something unlawful before it has actually happened. This crisis could quickly and easily become more acute.
In the long term we must confront still greater dangers. Our constitution is, put simply, not worth the paper it is not even written on.
We now live in the age of charlatans. We can no longer depend on the people ruling us to do so with any good faith. We cannot trust them to defend our rules, norms or rights. It is not so much that the government will not protect democracy, it is that democracy must be protected from the government. The current occupants of Downing Street have shown that they are prepared to destroy anything to get what they want. We cannot simply hope that they will go away and never be replaced with people even worse.
A further constitutional battle is gathering: the role of the Queen. In recent days the monarchy has faced almost unprecedented scrutiny on its level of interference in the political process. Arguments have raged over ministers’ advice on the prorogation, and the broader problem that the Queen’s role can so easily be manipulated and abused. David Cameron’s revelation that he asked the sovereign to intervene in the run-up to the 2014 Scottish independence referendum has not helped. It must now be time for the constitutional monarchy to do what should be entirely obvious, and subject itself to a constitution. Parliament cannot simply operate at the Queen’s pleasure or discretion. Just as we never sufficiently insulated ourselves against the possibility of a tyrannical prime minister, we need to safeguard against the possibility—however remote it may seem—of a tyrannical monarch.
The most depressing aspect of this dispute is its stark division along the lines of Remain and Leave. Too many politicians and commentators have assumed positions based on whether or not they want the government to be able to force through Brexit. This should not be a matter of anyone’s support for Brexit but for core democratic principles. A most basic point is now considered radical.
On a fundamental level our nation is riven. This week marks five years since the referendum in Scotland. That perhaps exposed for the first time the extent of constitutional divisions, and more specifically, the extent to which national electorates were prepared to break things which for decades had been taken for granted. The late 20th-century certainties about the nature of the United Kingdom, its stability, global role and sense of self, publicly began to erode, and then disintegrate.
These recent years of convulsion have challenged not just the nation’s confidence, but its identity. We are profoundly lost, and it was the people who should have been leading us who led us astray. Now nobody knows the way or can offer us any answers at all. The government gambles with our security, prosperity and place in the world. Parliament cannot hold it to account. All the old realities of our civic life have melted away. Like a child confronted with the sudden realisation of their parents’ inadequacy, we are disoriented, confused and entirely on our own.
The UK’s constitutional settlement has been blown apart, along with the complacency of our assumptions. Questions unresolved for decades or centuries are no longer being pondered in philosophical tracts but posed in the nation’s highest court amid a political emergency.
But this prorogation is not ultimately about the law. It goes to the heart of who governs us and how. It asks us if our constitution is not merely unwritten but in fact a sham, and asks us how we will cope with the answer. It is, in the end, a question of whether our democracy actually exists in any form worthy of the name.
With many thanks to: Prospect Magazine and Jonathan Liz for the original story
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Jonathan Lis is Deputy Director of the Think Tank British Influence
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