Brexit, the Extension, and Academia

Professor AAA wrote: “So Brexit will not happen until 12 April (at least).” [3/22/2019, 12:16 AM] I am not sure that is correct. The UK government sought an extension. The extension offered by the EU Council was not (as I understand it) the precise extension that the UK government asked for, and it comes with conditions. Even if the EU Council granted the precise extension sought by the UK government, there is still a UK statute on the books setting the date for Brexit at March 29, 2019, 11 pm. So before Leavers take a sigh of (temporary) relief—that pesky statute must still be repealed. Also, Prime Minister May has to back the extension even if the Commons votes to pass a statute against her wishes. If a statute is passed against the wishes of the government, the prime minister still remains in office (as prime minister or as caretaker prime minister), and the prime minister will (or, at least, might) recommend to the Queen not to grant her (the Queen’s) assent. Should the Queen not assent (at the advice of ministers), then the repeal never becomes a statute. The established convention of the UK Constitution is not that the Queen assents to all statutes which come from Parliament, but that the Queen accedes to statutes at the advice of ministers. If Prime Minister May is against the extension …. then it follows the purported repeal would fail …. not to mention that the British scuttlebutt is that the Queen personally supports Leave.

So I expect the extension will take effect—with the assent of Prime Minister May, the two Houses of Parliament, and the Queen. But I don’t think it is a given.

Professor AAA wrote:

Nigel Farage is one of the leading public figures threatening violence: [Farage:] ‘But if they don’t deliver this Brexit that I spent 25 years of my life working for, then I will be forced to don khaki, pick up a rifle and head for the front lines.’

(emphasis is Professor AAA’s). [3/22/2019, 2:47 AM]

What do you think Professor AAA?—Is it even possible that Farage was speaking in colourful metaphor? Like a recent U.S. President who said: “If they bring a knife to the fight, we bring a gun ….” (It wasn’t Trump who said this.) I am not so interested in what Professor AAA or Farage meant, as I am interested in suggesting how comments like Professor AAA’s are understood by many rank-and-file voters in the UK (and elsewhere). They hear Professor AAA’s comment as “You think we are violent and can be led around on a string, and that’s why you don’t respect us or our vote.” My view is that although not likely to incite violence, comments like Professor AAA’s are 100x more likely to incite violence than anything said by President Obama or MEP Farage.

Professor AAA wrote:

[Prime Minister May] blamed the Parliament for the mess that the UK is in now. That sounds like politics as usual in the US, but it is not in the UK. Remember that the [prime minister] is elected by the Parliament and serves at its pleasure. They have the job to check her, not the other way around. For her to turn around and accuse the Parliament of irresponsibility and to call out their constituents against them is, as Professor BBB notes below, a direct attack on the British constitution. [3/22/2019, 12:16 AM]

I do not think Professor AAA or Professor BBB is correct. I do not see any indication that commentators, parliamentary speakers or clerks, past or present, would agree that conduct like Prime Minister May’s (and I am not by any means a Prime Minister May supporter or fan) is a violation of any convention of the UK Constitution much less a “direct attack on the British Constitution.” I suggest that it is not wrong for this prime minister or any prime minister to criticize her predecessors, cabinet colleagues, back benchers, or fellow members of parliament—in private or in public. Going over the heads of members of parliament by calling a snap election or engaging in political speech is precisely what is meant by normal democratic politics. Seeking to constrain normal democratic politics by characterizing it as abnormal is precisely the sort of behaviour that made Brexit possible—if not an existential necessity to secure democratic rights for ordinary voters. I would also add that it is an all too casual over simplification to say that the prime minister “serves at [the] pleasure” of the Commons or that it is the Commons’ responsibility to “check” the Prime Minister. Rather it is the Commons’ responsibility to hold the prime minister to account.

Some years ago, Canadian Prime Minister Harper, in office at the head of a minority government, sought to check the formation of an all-opposition government. He did so by having the Governor-General prorogue Parliament, and then he went to the country—by engaging in ordinary free speech about politics. A few academics wrote that the Prime Minister ought not to engage in such political speech for reasons much like what Professor AAA wrote here. I responded with:

Dear Professor,

It seems to me that you need some normative model or guidance or test from which you could determine when a Prime Minister is acting in his own self-interest or that of his party as opposed to his best determination of the public good. There has to be some give here. A Prime Minister is not supposed to be a neutral bystander and he should be able to see the continuance of his Government in office as part (not the whole) of the public good. The next test ought to be—as you indicate—was Parliament granted a full, [fair,] timely, meaningful, and free vote to determine whether a Prime Minister and his cabinet should continue in office, but a full, fair, timely, meaningful, and free vote requires a normative basis to make that judgment. It is not the Westminster tradition that a timely vote means whenever the opposition can muster sufficient votes to bring down the Government. Just as the Government can set the election date, it can, consistent with practice, set the time for confidence votes. Such votes should not be delayed indefinitely, i.e., until the next election. But they need not be tomorrow or on one day’s notice either. As I understand it, what Harper did was delay that vote. There was no allegation of offering opposition members personal benefits to get their votes. If the delay was used to go out to the people to explain the Government’s position (i.e., meaning that the Government put forward its view of what an all-opposition cabinet would mean for the country), then that seems consistent with democratic norms. Indeed, that is consistent with what I believe to be the highest aspirational norms of the Anglo-American tradition. In doing so, a Prime Minister isn’t bringing Parliament to “heel”—I think that was your expression. Rather, such a Prime Minister is making Parliament, including the opposition, accountable [to the people]. It is true that a delay gives a Prime Minister [and his Government] some benefits—a lack of accountability during the time Parliament is prorogued. But it comes with substantial costs too. During that time, the Government loses the opportunity to move its legislation forward and the delay is seen as weakness on the floor of the House [and across the country at large].

For Harper to have violated a convention of the Constitution or to have given illegal advice to the Governor General [in regard to prorogation], you need to show (or so I believe) some sort of overreach beyond the norms of the [Canadian] Constitution. Such overreach might involve intentional actions by Harper out of self-interest, beyond merely seeking to extend the life of his Government. Such overreach would also include indefinite delay of a confidence vote. Finally, overreach would include seeking to check parliament through grants of lucrative office to opposition members (or bribes paid by third-parties). [On the other hand], where the time of the delay is used to actively engage in politics, i.e. talking to constituents and the press, that isn’t abuse, that is virtue. You arrive at the opposite conclusion (as I understand your position) because your vision of Parliament is one of its having unchecked supremacy between elections—in that situation, the floor members are entitled to a free vote without notice [to the Government] and they should not be made to explain their positions to constituents outside of an [active] election contest. But if that is your position (and I could be wrong on that), then what is wrong (or so I believe) is your normative vision, not Harper’s conduct.

Finally, don’t the two recent Canadian by-elections, particularly BQ losing a seat to the Tories, indicate that Harper had sound prudential reasons for believing that the voters did not want an all opposition government? <http://reformclub.blogspot.com/2018/06/tillman-on-conventions-of-constitution.html>

Professor AAA thinks an elected Prime Minister’s trying to pass a cabinet programme by directly speaking to her nation’s people is somehow a wrong—a threat. And that is why millions of people voted for Brexit, and—I might add—why millions of people voted for: Donald J. Trump.

Seth

Seth Barrett Tillman, Brexit, the Extension, and Academia, New Reform Club (Mar. 22, 2019, 5:23 AM), <https://reformclub.blogspot.com/2019/03/brexit-extension-and-academia.html>.