Prorogation struck at the very heart of parliamentary democracy. But it was not an isolated incident. Dr Robert Saunders
When the time comes to write the history of Boris Johnson’s premiership, historians will not be short of material.
In his first twelve months as prime minister, Boris Johnson has shut down Parliament, won a general election, taken Britain out of the EU and faced a global pandemic. He’s lost a Chancellor of the Exchequer, expelled 22 MPs from the Conservative Party, experienced the biggest economic hit for generations and taken on the wage-bill for a quarter of the workforce.
Yet perhaps the most significant moment of his premiership came at the very start. The Prorogation crisis, in August and September 2019, struck at the most basic principles of the British constitution. It drew an unprecedented intervention by the Supreme Court, and has set up a battle between the Executive and the Judiciary which will run throughout this Parliament.
Prorogation was not an isolated incident, or an extreme response to the Brexit crisis. It encapsulated three principles that have become central to the Johnson government: a contempt for Parliament; an intolerance of dissent; and a determination to concentrate power in the hands of the Executive. Those principles have been entrenched by the twin emergencies of Brexit and Covid-19, which have further sidelined Parliament and enhanced the power of Number 10. The result has been a shift in the character of British democracy, with lasting consequences for how we are governed.
The prorogation of Parliament in August 2019 was not, as ministers pretended, normal constitutional procedure. As scholars noted at the time, it was the longest suspension of Parliament since 1930, and was transparently intended to lock MPs out of the Brexit process: the single most important policy decision of the day.
In so doing, it subverted the very principles of parliamentary democracy. Prime ministers are not directly elected. They have no independent mandate of their own. Their democratic legitimacy comes solely from the House of Commons – the only institution, at a UK level, that is directly elected. A government that sets itself against Parliament, or that refuses to obey its laws, shuts off the source of its own democratic authority.
Had prorogation succeeded, it would have established a dangerous precedent: that a prime minister, installed in Number 10 by a vote of party activists, could use the powers of the Royal Prerogative to shut down our elected institutions.
On this occasion, the constitutional defences held: the Supreme Court ruled the prorogation ‘unlawful, null and of no effect’. Yet those defences are now themselves at risk, as the assault moves from Parliament to the Judiciary.
‘Getting the Judges Sorted’
The decision of the Supreme Court produced a furious response. Boris Johnson rebuked the Court for pronouncing ‘on what is essentially a political question, at a time of great national controversy’, while a ‘Downing Street source’ let it be known that ‘Dom wants to get the judges sorted’. After the General Election in December, the new Attorney-General, Suella Braverman, published an article urging ministers to ‘take back control … from the judiciary’.
Curiously, Braverman presented her position as a defence of Parliament. She accused the courts of ‘supplanting Parliament’ and of ‘the disfranchisement of Parliament’ – a bold claim from someone who had backed closing it down. Yet in both her examples of judicial overreach – the triggering of Article 50 and the unlawful prorogation – the courts actively restored decision-making to Parliament, after Number 10 had tried to remove it. In neither case did the Supreme Court make any judgement on policy. Instead, it insisted that Parliament must decide when to trigger Article 50, and that Parliament could not be suspended to exclude it from the Brexit process.
Braverman warned the judges that ‘they are not elected, they are not accountable to members of the public and it is for politicians to make political decisions’. Yet when Johnson suspended Parliament, he had been elected by no one except his own party activists. The only democratic body to which he was accountable was the House of Commons, which he had suspended. It was not possible for ‘politicians to make political decisions’, because Britain’s political institutions had been shut down.
When Braverman talked about the rights of Parliament, what she seems to have meant was the rights of the Executive: specifically, the right of a prime minister to shut down Parliament, ignore its legislation and exclude it from decision-making. What was at stake was not the supremacy of Parliament over the courts, but the supremacy of the Executive over Parliament.
‘A Dead Parliament’
In the weeks after Prorogation, the Johnson government intensified its assault on Parliament. The Attorney-General, Geoffrey Cox, called it ‘a dead Parliament’ with ‘no moral right to sit’. Johnson himself told Parliament to ‘move aside and let the people have their say’, while the right-wing polemicist Andrew Roberts urged ministers to revive the Royal Veto, striking down legislation intended to ‘subvert’ ‘the will of the People’.
In the election campaign that followed, Johnson became perhaps the first prime minister since the eighteenth century to run against Parliament, accusing MPs of ‘thwarting the democratic decision of the British people’. Having tweeted (falsely) that Johnson’s deal had ‘passed Parliament’, the party pivoted swiftly to the opposite position: congratulating the prime minister for negotiating an agreement ‘despite Parliament’s best efforts to block his progress’.
The election produced a Parliament more to ministers’ tastes, with an 80-seat majority for the government. Yet the determination to reduce its powers continued. Downing Street has reasserted its power to appoint the chairs of parliamentary committees; and while that failed in the case of Chris Grayling, the expulsion of Julian Lewis from the parliamentary party has sent a clear message that disobedience will not be tolerated in future. It was nearly ten months before Johnson appeared before the Liaison Committee in May, and he declined to commit to return.
More troublingly, the Brexit process has seen an explosion in the use of ‘skeleton bills’, which allow ministers to fill in the details of legislation after an Act has passed. The effect is essentially to pass law-making power from MPs to ministers. A report by the House of Lords Constitution Committee, published in June, warned that ‘skeleton bills’ were vesting ministers with powers of ‘breath-taking scope’, adding that it was ‘difficult to envisage any circumstances in which their use is acceptable’.
Parliament and the Pandemic
The outbreak of Covid-19 has in some respects accelerated the side-lining of Parliament. It was not the government’s fault that public health restrictions made it more difficult for the House to meet in person. Yet it was the government’s decision to switch off digital participation, at a time when only 50 MPs could fit inside the Chamber. The result was that nearly 200 MPs, who are shielding or have family members who are vulnerable, have been excluded from Parliament. The rest are mostly scattered around the parliamentary estate, unable to enter the Chamber or access support. Parliamentary votes have become so cumbersome that MPs are encouraged to avoid them altogether, while proxy voting has dropped hundreds of votes into the pockets of the party Whips.
At the same time, government has chosen to legislate as far as possible through Statutory Instruments and emergency powers: procedures that side-line Parliament altogether. As David Allen Green has noted, ‘the recent coronavirus regulations have created the widest criminal offences in modern legal history’; and they have done so largely without parliamentary approval. In most cases, there was no special pressure of time to make this necessary, suggesting an active preference for legislating outside of Parliament.
A Quasi-Presidential System?
It is tempting to view all this as an assault on democracy. Yet if that were the case, the defences would not so easily have been breached. The attack on Parliament is better understood as part of a shift in the character of British democracy, to a model that views the Executive, rather than Parliament, as the carrier of democratic legitimacy.
This is rooted in the growing presidentialisation of British politics. General elections are increasingly cast as presidential contests, with televised ‘prime ministerial debates’ to decide ‘Britain’s next prime minister’. Televised addresses – delivered, not in Parliament, but at a presidential podium, in front of the Union Flag – have become part of the theatre of the modern premiership, while the prime minister’s recent illness saw much talk of ‘designated survivors’ in the event of his death. As the Cabinet sinks into irrelevance, power has shifted to prime ministerial appointees from outside Parliament: figures such as Dominic Cummings and David Frost, who serve – like a presidential ‘administration’ – at the will of the prime minister.
Yet the result is dangerously unbalanced: a quasi-presidential system that lacks any of the safeguards of an actual presidency. Unlike an American President, Number 10 is not constrained by a written Constitution. It does not have to share power with a separately-elected Congress, in which one or both Houses might be controlled by the opposing party. Its appointments do not require Congressional approval, or a formal nomination process. As the prorogation crisis demonstrated, Number 10 now claims a direct democratic mandate that is not only separate from that of Parliament but that can be mobilised against it. Yet it recognises no balancing sources of authority, able to limit its power.
Historically, the most important check on the Executive in Britain has been Parliament. Yet the ability of MPs to challenge their leaders has been significantly constrained. By transferring power from MPs to party members, parties have liberated their leaderships from parliamentary control and inverted the traditional relationship between Parliament and the Executive. Instead of leaders drawing their authority from MPs, MPs are expected to obey the ‘mandate’ of the party leadership. On this model, legitimacy flows downwards from The Leader, not upwards from Parliament.
In consequence, Parliament risks sinking into the position of the Electoral College in the United States: a largely ceremonial body of pledged delegates, whose functions cease once the Executive is in power. A Parliament demoralised by the referendum and scattered by the pandemic must decide whether it is willing to accept that fate – and what, if anything, it proposes to do about it.
Dr Robert Saunders is Reader in British History at Queen Mary University of London and Co-Director of the Mile End Institute.