Boris Johnson’s efforts to ram a no-deal Brexit through have unleashed a massive fight over who holds political power in the U.K.
The news hit like a shockwave across British politics. On Wednesday morning, three of Scotland’s most senior judges found that the government had unlawfully suspended its own parliament in a desperate attempt to force through an extreme version of Brexit.
It was, without hyperbole, the most shocking legal decision in the modern history of British public law. The logical conclusion of the ruling was that prime minister Boris Johnson had lied to the public, lied to parliament, and, most shocking of all, lied to the Queen.
The U.K.’s constitutional system hands sovereignty — supreme authority — to parliament. That power is derived from the people. The public votes for who they want to represent them and those people sit in parliament as MPs. The government, composed of the prime minister in Downing Street and his ministers, ultimately answers to them. They can vote for or against the laws it puts forward.
But the 2016 Brexit referendum changed everything. The vote to leave the European Union was a new development. It wasn’t representative democracy. It was direct democracy. This was a completely new source of democratic legitimacy emerging from the womb.
The trouble with the vote was that it offered only a broad demand — leave the EU — but no detail about how to pursue it. Should Britain pursue a soft Brexit which stayed aligned to the EU economy? Or a hard Brexit which pushed away from it? Or even a no-deal Brexit, which accepted no arrangements with the EU whatsoever? The referendum offered no answers to these questions.
The government responded by adopting a tried-and-tested sleight of hand much loved by authoritarians throughout history. It claimed that it, and it alone, could interpret the referendum result. It represented the “will of the people,” which was whatever it said it was.
In fact this was all opportunist nonsense. Leave voters were not unanimous in what they wanted, and neither, for that matter, were Remain voters. There was no will of the people. It was a fiction, a lie which pretended that a mad scramble of different voices was in fact uniform and homogenous.
But if the government could claim there was such a thing, it could tap into a rich new well of political legitimacy and ignore parliament. It would make itself more powerful than ever. So for the last three years it has pursued a variety of Brexit strategies and all the while branded those in parliament who tried to hold it to account as traitors who were trying to “undermine” the will of the people.
That process has now reached a crescendo. Britain is now in the most serious constitutional crisis since the Civil War in the 1600s.
On August 29th, Boris Johnson asked the Queen to prorogue parliament. This is a standard procedure in which the legislative agenda is reset and MPs disband for a couple of weeks. Johnson pretended it was a run-of-the-mill event.
Nothing could have been further from the truth. It was unprecedented for the government to attempt prorogation in the heart of a major political event. And Britain was currently embroiled in the most serious event of our lifetime. On October 31st, it would fall out the EU by automatic operation of the law. Johnson’s intention was to leave with no-deal — the most extreme possible interpretation of the Brexit vote.
The length of the prorogation was also unheard of. It was far longer than normal. The conclusion was obvious. Johnson wanted full government control. With parliament suspended, MPs would be powerless to stop him doing whatever he wanted.
The Queen accepted. There was nothing else she could do. The monarch has no real individual role in British politics — it is all ceremonial. She had to take the prime minister at his word.
And then all hell broke loose. In their last week before prorogation, MPs launched a form of constitutional guerrilla warfare against the government. They took control of parliamentary business and started pushing through a piece of rebel legislation, completely independent from Downing Street, which would force the prime minister to extend Britain’s membership of the EU if there was still no Brexit deal by the end of October.
Twenty-one MPs in the governing Conservative party joined the fight against their own government. They were not seasoned rebels. All but one of them had held ministerial posts. They were the entirety of the party’s statesman class. In an insane act of self-sabotage, Johnson told them that any act of rebellion would see them exiled from the party — a practice known as
“removing the whip.”
The threat was clearly designed to scare them into submission. But it didn’t work. They rebelled anyway. Johnson promptly sacked them, by text message, and eradicated his own majority. He had made good on the warning, but by doing so dismantled his own capacity to govern. The rebel MPs helped the opposition to pass the legislation into law. His no-deal strategy was in tatters.
As the minutes counted down to the disbanding of parliament, a series of extraordinary scenes played out, the likes of which no one had seen before.
He had one last gambit. He could demand a general election. But without a majority, even this pathway was lost to him. British law requires a prime minister to secure a two-thirds majority in the Commons for an election outside of the normal five-year timetable. But opposition parties weren’t going to play ball. They would only allow an election after they were certain the October deadline had passed and no-deal Brexit was ruled out.
Johnson tried twice to pass a motion for an election, but was defeated on both occasions. It was a humiliation. He sat dejected in the House of Commons. It was checkmate.
In the early hours of Tuesday morning, as the minutes counted down to prorogation, a series of extraordinary scenes played out in parliament, the likes of which no-one had seen before. MPs attempted to physically hold the Speaker of the Commons down in his chair, so that prorogation couldn’t take place.
“I recognise that our presence is desired by our Majesty the Queen’s Commissioners,” The Speaker said, grudgingly. “They are doing what they believe to be right and I recognise my role in this matter.”
In response, opposition MPs shouted “shame on you” at the government benches. Conservative MP Andrew Stephenson screamed at the Speaker and stormed out the chamber. The Speaker replied: “I don’t care if you don’t like it. I require no response from you, young man. Get out, man. you will not be missed.” Opposition MPs held a protest in the Chamber, holding up signs reading: “Silenced.”
But none of it worked. None of it could work. The Queen had accepted Johnson’s request for prorogation. The suspension came into effect.
And then, Wednesday morning, the Scottish court case blew everything wide open again. Three first division judges ruled that the prorogation was an attempt to silence parliament. “The court will accordingly make an order,” they said, “declaring that the prime minister’s advice to the Queen and the prorogation which followed… was unlawful and is thus null and of no effect.”
The consequences were astonishing. The prime minister was judged to have unlawfully suspended parliament. And it got worse even than that. The prorogation request had to go through the monarch, meaning he had lied to the Queen herself about the purpose of the suspension.
Opposition politicians immediately called for MPs to return. “Get back to parliament,” Labour Brexit secretary Keir Starmer said, “open those doors and get back in.”
But in truth the ruling is just the advance battle before the war. Next Tuesday, the Supreme Court will rule on a government appeal in the case, and that of other cases concerning the prorogation, which had been decided in the government’s favour. That will be the deciding moment.
What is being decided here is not just about Brexit. It is about the biggest constitutional question you can ask in any country: Who holds legitimate political power? Is it the people, or parliament, or the government?
For centuries there was a settled answer. Parliament held the power, by virtue of votes from the people. The Brexit referendum provided the government with a mechanism to sidestep that arrangement and portray itself as the voice of the people independently from parliament. The events of the next few weeks will show which of those visions is victorious. The stakes couldn’t be higher.