After the referendum — a brief explainer of Brexit so far….
Prime Ministers, prerogatives and proroguing Parliament
I recently posted a brief explainer of the European Union and the constitution of the United Kingdom. In this story, I will provide an overview of events since the referendum result in 2016 against the backdrop of the UK’s constitutional framework.
The Prime Minister (PM), David Cameron, who had campaigned to remain in the EU, resigned following the referendum result. In the UK the resignation of a sitting PM does not trigger an election automatically. The Prime Minister is, by convention, the person most likely to command a majority in the House of Commons. This is logical as the main function of the Commons is to legislate, and the legislative program is driven by the government, led by the PM. Should the PM not command a majority then it would be difficult for any legislative program to progress and Parliament would be hamstrung. The Prime Minister will almost always be the leader of the party which holds the most seats in the House of Commons. Note that there is no public election for the post of PM. Time for a brief explainer.
The UK is split into 650 constituencies, each one representing a seat in parliament. At a general election, political parties field candidates in each constituency. The public votes for the candidate whom they wish to represent them in the House of Commons. Candidates will almost always represent a party, so with all 650 seats filled the party with the most seats will get to form a government with the leader of that party recognised as Prime Minister. The PM is never directly elected like, for example, the President of the United States; individuals are elected to Parliament and the party with the most representation forms a government.
A new leader
When David Cameron resigned then, it fell to his party — the Conservatives — to find a new leader who would step into the role of PM. The leadership election process varies between parties but generally consists of an initial vote by the parties’ Members of Parliament (MP) until two candidates remain. The final vote is then put to the members of that party across the country. So, if you are a member of a political party, and that party is electing a leader, you will have a vote. The leadership contest of 2016 was a little unusual, as all but one of the candidates withdrew before the final round of voting. Theresa May, as the last woman standing, became the leader of the Conservative Party and Prime Minister. She signalled her intention to deliver Brexit and notify the EU of the UK’s intention to leave by triggering Article 50 of the Treaty on European Union which facilitates leaving the EU. Once Article 50 is triggered a two-year countdown begins at the end of which the member state in question ceases to be a part of the EU. Extensions to the two year period can be granted with the consent of all member states. A legal challenge was immediately launched against the triggering of Article 50.
Not your prerogative
Entering and exiting international treaties fall within the prerogative powers, exercised by the Prime Minister and their ministers in the name of the monarch. Theresa May’s stance was that as the EU Treaties are international treaties she was within her remit to take the UK out of those treaties. A legal challenge argued that, due to the constitutional importance of the Treaties, this could not be done without the involvement of Parliament. The Supreme Court of the United Kingdom agreed, noting that Parliament could not be circumvented when constitutional changes were afoot. As mentioned in my previous explained, the EU Treaties are unique in that they create a direct source of law for member states. Unlike most international treaties, which are essentially little more than agreements between governments, the EU Treaties directly create rights for citizens of member states. This elevates the EU Treaties to constitutional status and Parliament must be consulted when changes to the constitution are afoot.
The question of whether to invoke Article 50 went to Parliament who passed the European Union (Notification of Withdrawal) Act 2017 by 494 votes to 122. Notification of the UK’s intention to leave the EU was given on 29th March 2017, meaning the UK would leave two years later unless an extension was agreed. Negotiations began with Theresa May adamant that a deal with the EU was the preferable option. This would, in theory, ensure the smoothest possible transition from membership to non-membership in terms of trade between the UK and the EU. Unfortunately, the deal struck between Theresa May and her European counterparts was not accepted by Parliament who voted against it three times before the Speaker of the House of Commons, who essentially referees debates, rules that the deal could not be voted on again. The sticking point of the deal was the so-called backstop, which is a contingency arrangement should the UK and EU not be able to strike a full deal in the months following the UK’s departure. The crux of the backstop arrangement is that Northern Ireland, and to a lesser extent the rest of the UK, would remain in the single market until the EU and UK could agree on trading conditions. The backstop and the Irish border question are complex and beyond the remit of this particular story, however, it will suffice for this brief explainer to say that the backstop prevented the deal from being approved by Parliament. Some MPs were not happy that the backstop could keep the UK in the single market — and therefore subject to EU rules — indefinitely while some were unhappy that the backstop, or single market membership, was not designed to be permanent. Either way, the failure to secure a deal cost Theresa May her premiership and led to an extension to Article 50 until 31st October 2019.
Theresa out, Boris in
Following the procedure explained above, Boris Johnson won the leadership contest and was duly appointed Prime Minister with a pledge of leaving the EU on 31st October, deal or no deal. This has whipped Parliament into a frenzy with a no-deal exit being touted as an economic Armageddon from which the UK would take years, if not decades, to emerge. Johnson’s supposed preference is to strike a deal with the EU but to leave without one if a deal cannot be agreed before the deadline. This sounds simple enough so it may be worth taking a quick inventory of the forces which are currently in play:
- The UK population voted to leave the EU by a margin of 52% to 48%.
- Individual members of parliament voted overwhelmingly against leaving the EU in the referendum with one survey finding 480 MPs voting to remain with 159 voting to leave. This has created an unusual position where most areas of the UK voted to leave, but most members of parliament voted to remain.
- Parliament has on three occasions voted against the only deal to be proposed.
- Boris Johnson has stated that he wants a deal, but that the backstop in the proposed deal is unacceptable and must be removed.
- The EU has stated that the deal which Parliament has voted against three times is now non-negotiable and the only deal on the table.
So, as you can see, negotiations are anything but simple. The majority of MPs insist that a deal must be struck and that Article 50 be extended to facilitate this. The EU insists that the deal which parliament has refused is the only deal on the table. Boris Johnson insists that the UK must leave the EU on 31st October whether a deal is agreed or not to allow the UK to get on with its post-Brexit existence. Tension has been mounting as Parliament has been on its summer recess since 25th July and is due to resume on 3rd September. It has been widely reported that upon return from recess Parliament would seek ways to introduce legislation which would force the Prime Minister to seek a further extension to Article 50 while a new, or amended, deal could be negotiated. Boris Johnson’s response — shut down parliament.
Proroguing Parliament
Proroguing parliament is a common occurrence and is usually an uncontroversial event. Prorogation ends the current parliamentary session and puts a halt to any parliamentary business which is still ongoing. The various committees which sit are disbanded. Any legislation which is making its way through parliament is effectively killed off. Parliament is put on hiatus for a set period. The power to prorogue is a prerogative power which is exercised by the monarch on the advice of the Prime Minister. Note that prorogation differs from the dissolution of parliament which is the process by which all MPs lose their seats in preparation for a general election. Prorogation is commonly used when a new Prime Minister or government takes power as it allows for the current session to make way for a new session for which the PM will set out their agenda. While a standard procedure, the prorogation of Parliament by Boris Johnson has provoked an outcry.
A constitutional outrage?
The outcry surrounding Boris Johnson’s move has centred around the fact that the prorogation of Parliament at this time will not allow time for adequate discussion and debate of the options to leave the EU with a deal. If no deal or action is taken before 31st October the UK will automatically leave the EU. Against this backdrop suspending Parliament does appear to be a cynical move. Claims of a coup d’état by an unelected Prime Minister have prompted discussions of the nature and suitability of the UK constitution. The monarch, who is traditionally apolitical, has been dragged into the debate with commentators claiming that she should not have consented to suspend Parliament at this critical time. Arguments against the suspension are understandable. From a constitutional standpoint, however, everything is above board. Johnson is indeed an unelected PM, but as has been discussed, the UK does not elect PMs, it elects representatives with party affiliations with the PM being the leader of the party with the largest representation. As was noted in a previous story, the exercise of prerogative powers rests with the Prime Minister of the day, not the personal whim of the monarch.
Which way now?
As things stand Parliament will return to work today, 3rd September 2019, before being prorogued in the week of the 9th September, returning on 24th October. That gives Parliament a week to find a way through the stalemate and achieve its desire to enforce an extension to the 31st October deadline. It will also have a week when Parliament resumes in October. So what will happen next? In short, nobody knows and watch this space. Parliament may choose to subject Johnson to a vote of no confidence which would indicate that he no longer commands the confidence of the House of Commons. This would almost certainly lead to a general election however the date for that election would be set by the Prime Minister. Johnson could simply set an election date for after 31st October thereby ensuring the UK’s exit. This would surely add to the outrage which is already being vented. This will be an interesting week in UK politics in which the Speaker of the House and the Clerks of the Commons will play a pivotal role. The Speaker and the Clerks are experts in parliamentary procedure and it will be interesting to see what mechanisms they may uncover. Suffice to say, it is not over yet.
I hope this basic explainer was of help to those of you who may be familiar with Brexit without knowing the whys and the wherefores of the UK system. What is your take on Brexit? Do you consider Johnson’s actions to be a constitutional outrage or merely a political gambit designed to deliver Brexit as mandated by the British people? What should happen next? I’d love to hear your feedback.
