James Kirkup

Brexiteers should be careful about setting fire to the British constitution

Brexiteers should be careful about setting fire to the British constitution
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Revolutions, once started, are hard to stop. The fire that David Cameron so casually lit in 2016 has burned through many things that seemed like fixtures of British national life. Judicial independence; the Civil Service and the Bank of England; the Union; the Conservative party's faith in institutions; basic standards of journalism; and parliament itself: all have been pushed towards the the flames by chanting members of the Brexit death-cult.

So it should be no great surprise that we’ve reached the stage where it is said that the Prime Minister of the day is prepared to set aside pretty much the most fundamental principle of representative democracy in the name of the precious Brexit.

To recap: the Times today reports – and has not, to my knowledge been contradicted – that in the event that the government loses a confidence vote in parliament before Britain has left the EU, Boris Johnson would simply refuse to resign as Prime Minister and cling to office until the automatic conveyor-belt of law had carried Britain out of the EU on October 31st.

Strikingly, some constitutional scholars argue that there is nothing in law that precludes this course of action. They note that the Fixed Term Parliaments Act (FTPA) that provides for such confidence votes is silent on the actions a prime minister should take in such circumstances. Downing Street, in the form of Dominic Cummings, is seeking to fill that silence with the noisy suggestion that Prime Minister Johnson would just sit tight, effectively daring the Queen to take a genuinely unprecedented role in politics by sacking him and inviting someone else to form a government.

I make no claim to constitutional authority but this interpretation strikes me as quite extraordinary. I’m rather more persuaded by the arguments made by lawyers such as Spinning Hugo, who say that the FTPA’s silence on a prime minister’s duty to resign is effectively irrelevant because that duty is clearly established in both convention and other texts including the Cabinet Manual.

Hugo poses a good question: where in statute is it written that a prime minister whose party loses a general election by a wide margin must resign? If the Cummings-Johnson interpretation ('If it’s not written clearly in law, you don’t have to do it') is correct, why did John Major bother to leave No. 10 in 1997? Apparently he could simply have insisted on remaining in office.

That illustrates how absolutely fundamental this stuff is. Britain, like all democracies, relies in large part on conventions, shared understandings about things that must happen under certain circumstances. One of them is that a prime minister who cannot command the confidence of the House of Commons cannot remain prime minister. But, as we’re being painfully reminded, often by people who still have the gall to call themselves Conservatives, such shared understandings are essentially voluntary. If someone wants to break the rules we’ve always played by, there is little to stop them.

So while I find the prospect of a defeated Prime Minister Johnson barricading himself in office jaw-droppingly dreadful and extremely disturbing, I do not suggest that it is impossible. The institutions that underpin democratic politics are essentially fragile; the whole point about democratic politics is that it's something we all collectively consent to do together, not something we’re forced to do by men with guns and sticks. Boris Johnson’s life has been a story of breaking the rules and getting away with it. It is surely at least possible that he could break just about the most important rule of all.

Yet while I think it’s possible to imagine events playing out in line with the tales being spun by 'senior Downing Street sources,' I can only hope that the Conservative party is not so far sunk into the mire that it cannot see the catastrophic harm and self-harm that this would do.

I don’t dwell here on Boris Johnson’s place in infamy. That’s for him, his conscience and posterity.

Instead, I’d urge Tories to consider two things that might arise from their leader ignoring fatal defeat in the Commons and squatting in Downing Street regardless.

First, Britain’s standing in the world as the fount of democracy and a country built on the rule of law would sustain a grievous and possibly fatal wound. What moral right could Britain claim to lecture others on democracy? Would a country where the executive flatly ignore parliament even claim to be a parliamentary democracy any longer? Britain’s voice sadly does not sound loudly in places such as Moscow and Beijing these days, but in such circumstances, it would be entirely drowned out by the sound of Vladimir Putin and the Chinese Communist Party laughing at us.

This wouldn’t just mean a huge loss of soft power. It would cost money, too, and huge amounts of it. We take for granted that international capital will always flow into the UK’s open economy, but a prerequisite for international investors is confidence in the rule of law. If a British prime minister flouted the basic rules of democracy, how could that confidence continue undimmed? Capital would surely become more scarce and more costly. Less investment means fewer jobs and less wealth.

Of course, it’s quite possible that this would not worry the Brexit cultists, who have repeatedly proven they’re happy to sacrifice jobs and wealth to their graven idols. And that’s their right: if people want to support and implement policies that cost them money, they’re free to do so, though I’d prefer them to make those costs transparently clear to the wider electorate.

But what should cause the Brexiteers to pause before putting the torch to the British constitution and the concept of representative democracy is the same thought that should have given them pause when they were undermining the judges and the Civil Service: if you set aside the rules and remove the safeguards that curb your power in order to have your own way, your opponents will one day be able to do the same.

Sooner or later, as night follows day, the Conservative party will leave office. The British government will be led by another party, still, most likely the Labour party. And this is the question that must be asked of every Conservative politician and every Conservative-supporting commentator and editor who actively or passively consents to the notion that Prime Minister Boris Johnson could simply ignore outright parliamentary defeat and insist on retaining executive power: what will you do when Prime Minister Jeremy Corbyn does the same thing?

Written byJames Kirkup

James Kirkup is the Director of the Social Market Foundation and a former political editor of The Scotsman and The Daily Telegraph

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