Drums beating, cold English blood runs hot… The Rolling Stones, 1969 (Brown Sugar)
The day of reckoning for the United Kingdom’s (UK) exit from the European Union (EU) was supposed to have been March 31st of this year. It didn’t happen. What did occur was a delay granted by the EU until October 31st, followed by the resignation of UK Prime Minister Theresa May. It’s all about to come to a head once again. This time however, the UK politicians in support of the public referendum1 to “leave” the EU are digging in much deeper against those who want to “remain” in the EU. It has gotten so out of hand that extraordinary excursions into unknown legal territory are now being taken on both sides to gain an advantage. In the process a superb lesson in the inner workings of the British government is publicly playing out for all of us to see. The debate appears to be driving inexorably to the point where even the sanctity of democracy in the UK is in question. This is a perfect opportunity to highlight some of the differences, and we believe genius, of our government’s design compared to that of the Brits.
On the surface, the structure of the British government seems similar to that of the US. Their Parliament has a House of Commons and a House of Lords. Our Congress has a House of Representatives and a Senate. The leader of their government is the Prime Minister, and our leader is the President (we’ll leave the British Royalty out of this discussion for the moment). That is where the similarities end. The three branches of government in the US (Executive, Legislative, Judicial) were fashioned to be equal in power in order to provide “checks and balances” to each other. By contrast, most of the power in the British system lies solely in Parliament. For example, in the US a bill must pass both houses of Congress and be signed by the President to become law. If the President doesn’t approve of the bill, he can veto it. In the UK, a bill must pass both Houses of Parliament, however, the UK the Prime Minister does not approve it and has no veto power. Only the Queen (or King) can veto a bill, which is formally referred to as withholding royal assent. However, that has never happened in modern times. The most recent case goes back to Queen Anne in 1708. Thus, laws are created by Parliament without the kind of check and balance we have here in the US.
Also, the British Prime Minister is selected by the political party that is voted into the majority in Parliament. He or she is not directly elected by the people. Unlike the US, this results in single party governance nearly all the time. Only on extremely rare occasions does the Prime Minister find him or herself with an opposing majority party in Parliament. That situation usually only arises from the death, defection, or resignation of existing members in a closely-divided Parliament. Should circumstances bring about a Parliament that is hostile to its own Prime Minister, laws could be passed designed to embarrass and/or hamstring the Prime Minister and cast him as weak and ineffective. This is exactly what happened last month to current Prime Minister Boris Johnson.
The most recent Parliamentary action in the UK was the passage of a law forcing Boris Johnson to ask the EU for yet another delay of Brexit if a departure deal2 acceptable to both Parliament and the EU can’t be made by October 19th. Not only was Parliament able to pass this law in opposition to the wishes of the Prime Minister, they included the exact text and form of the request the Prime Minister must make to the EU. Boris Johnson is now compelled by law to sign and present this request to the EU as if he had written it himself. In response, Johnson declared he would “rather be dead in a ditch” than ask for another delay of Brexit.
A 2011 law forces Parliamentary elections in the UK to occur on a schedule of every 5 years (much longer than in the US). However, when Parliament and the Prime Minister become hopelessly at odds with each other, as is presently the case, a new election can be called “out-of-cycle” to restore unity to the government. Either the opposition party in Parliament will prevail, and a new Prime Minister will be selected from that new majority, or the party of the existing Prime Minister will prevail and recapture the majority in Parliament. If a Prime Minister requests out-of-cycle election, two-thirds of the Parliament must agree for it to take place.
The present situation in the UK government is instructive in that it shows how badly this kind of system can be gamed. Defections and resignations in Parliament this summer caused the Conservative party to lose their voting majority, placing that body in opposition to Prime Minister Boris Johnson. To reunite the government, Johnson called for a new election earlier this month, which would either have led to his own political demise or gained him back a conservative majority in Parliament. Paradoxically, the anti-Brexit forces arrayed against Johnson in Parliament refused his request for an election (the vote fell far short of the necessary two-thirds). Public opinion polls in the UK indicate that if an election were held now, the Conservative party would re-establish their majority in Parliament (with new members who are much less likely to defect) and retain Johnson as Prime Minister. Thus, it isn’t in the best interest of the present anti-conservative majority in Parliament to have an election as they would likely be driven from power. As a result, the UK government currently exists in stalemate.
As unprecedented as this situation is, its historical significance is being overshadowed by the ticking time bomb of Brexit. October 31st looms as the day a “hard” exit from the EU will occur by default absent any compromise on a departure deal. A “hard” Brexit means that the UK would separate from the EU abruptly without any gradual unraveling or retention of existing agreements between the UK and EU. The EU has stated that the 19th of October is the effective deadline for any deal to be agreed upon. The present majority in Parliament is adamantly opposed to a hard exit, and a growing faction of that majority is now publicly opposing any exit. By the same token, the Prime Minister is adamantly insistent that the UK leave the EU on the 31st, justifying any action he would take to that end by the unquestioned expression of the will of the people. The 2016 public referendum on whether or not the UK should leave the EU, which resulted in a decisive vote to “leave”, stands as the one irrefutable truth in this sad tale. If Britain remains true to its democratic principles, the strongest and most well-reasoned arguments for “remaining” in the EU can never overcome the primacy and legitimacy of the democratic process that resulted in the voters’ decision to “leave”. Overriding the result of the referendum through legal trickery and Parliamentary defections nullifies all pretense of a having a democratic governing model in the UK. It ignores the people’s will as manifested by voting results. Similarly, Democrats here in the US continue to show their disdain for the will of the people by trying to override the result of the 2016 election and drive President Trump out of office (first with fabricated Russian collusion, and now with baseless impeachment proceedings). This fundamental principle of democracy, the will of the people, underpins Boris Johnson’s steadfast intent to have the UK “leave” the EU on October 31st.
The anti-Brexit forces in Parliament believe they have safeguarded the UK from a “hard” Brexit on October 31st (and likely from any Brexit at all on that date) by passing the law forcing Johnson to request a delay. The Prime Minister believes if he simply ignores the law, the clock will run out and Brexit will occur on the 31st. He appears unperturbed by any potential legal consequences that may rebound on himself. In effect, the structure of the UK government has permitted a condition to exist in which the only way the leader of the government can execute his responsibility to implement the result of a lawful public referendum is to break a law.
If you thought that wasn’t enough intrigue, Johnson took the step of advising the Queen to suspend Parliament for five weeks beginning on September 11th and lasting until October 14th. This action, which is not unprecedented and in fact typical for this time of year, traditionally allows members of Parliament time to convene conferences and tend to other business. It also means that Parliament is prevented from generating any legislative action until they re-open five weeks hence. Naturally, the timing and length of this particular Parliamentary “recess” has been called into question as it is suspected that Johnson requested it with the ulterior motive of preventing Parliament from passing any more laws having to do with Brexit until the effective deadline passes. Consequently, Johnson was sued for supposedly providing misleading advice to the Queen in his request for “prorogation” (the proper UK technical term for temporarily suspending Parliament). That case wound its way up to the UK Supreme Court. After a three-day hearing, they found Johnson’s advice to the Queen was “unlawful”. You read that right – if you are a UK Prime Minister, even your advice can be unlawful. The UK’s highest court made this decision without hearing any direct testimony from either the person who gave the advice (Johnson) or the person who received the advice (Queen Elizabeth)3. As we mentioned earlier, governmental power in the UK primarily lies with one body by design – Parliament. Because of this, the British courts historically do not insert themselves into consequential political decisions. But this is precisely what the UK Supreme Court has now done. The Supreme Court, which is only 10 years old4, not only invalidated a decision of the Prime Minister, but by inference declared the Queen’s assent to that decision unlawful as well. Apart from everything else, we have apparently just seen a major power shift in the UK government in that the Supreme Court, not Parliament, not the Prime Minister, and not the Queen, is now the highest (and final) governmental authority in the UK.5
A fascinating backdrop to this story is the how most of the UK, EU, and US media portray Boris Johnson. They’ve taken the tone of the ubiquitous headlines deriding President Trump’s personality, morals, and intellect and applied it directly to their writings about Johnson. The media and liberal politicians in both Britain and the EU are using the same playbook for Johnson as their counterparts in the US use for Trump – if on the losing side of an intellectual debate on any policy initiative, resort to personal denigration of the leader. The irony in this is that while both Johnson and Trump are reviled by the media and their political opponents, they each remain laser focused on one thing – carrying out the will of the voters who placed them where they are. Trump was elected upon campaign themes of immigration reform (including building a wall), lowering taxes, appointing conservative judges, reworking unfair trade deals (China, Canada, Mexico), and draining the “swamp”. Despite continuous personal and political attacks against him, he is successfully prosecuting each of these objectives. Johnson became Prime Minister on one theme which is best described in his own words in his first speech as Prime Minister:
“The people who bet against Britain are going to lose their shirts because we are going to restore trust in our democracy and we are going to fulfill the repeated promises of Parliament to the people and come out of the EU on October 31, no ifs or buts.”
The next few weeks in the UK will be amazing to watch.
1In 2016, the question of whether the UK should depart from the EU was brought to the people for a vote (in a referendum). The result of that vote was that a clear majority want to “leave” the EU. The voting tally in across the UK was 52% to 48% in favor of leaving. The spread was highest in England (53.5% – 46.5%). Given that elections determining the majority party in parliament are typically closer, the Brexit vote was a decisive expression of the people’s will.
2The intended purpose of a departure “deal” is to lessen any immediately disruptive consequences of the separation and keep mutually beneficial aspects of the existing UK/EU partnership in place. So far however, the only kind of “deal” acceptable to the anti-Brexit Parliament is one that retains so many entangled connections to the EU, the UK will have effectively never left.
3Lady Hale, the “President” of the UK Supreme Court (equivalent to the Chief Justice on the US Supreme Court) properly stated in the beginning of her summary that “It is important, once again, to emphasise that these cases are not about when and on what terms the United Kingdom is to leave the European Union”. However, later in her summary she ignored her own admonition and characterized the government’s justification for prorogation this way: “It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to achieve an orderly withdrawal from the European Union, with or without a withdrawal agreement, on 31st October. It does not discuss what Parliamentary time would be needed to secure Parliamentary approval for any new withdrawal agreement, as required by section 13 of the European Union (Withdrawal) Act 2018“. Quite obviously, and in our view dishonestly, Lady Hale’s only concern was with the United Kingdom leaving the European Union.
4The highest level of judicial authority in the UK historically rested in the House of Lords for more than 600 years. On October 1st of 2009, that changed with the establishment of a UK Supreme Court that now exists independently of Parliament.
5In the US, our constitutionally mandated co-equal branches of government prevent tectonic shifts of authority like this from occurring.