So for all the talk of narrowing polls, tactical voting, and possible shocks leading to a hung parliament, Boris Johnson achieved a crushing victory over Jeremy Corbyn and the Labour Party in the UK’s general election of 2019. With an 80 or so seat majority in the House of Commons, Johnson can now deliver on his core promise to “get Brexit done”.
He can also shape the broader social and economic environment in tune with the instincts of those around him. They are, almost to a man and a woman, hard-right libertarian figures with a barely concealed contempt for the welfare state, the National Health Service, social benefits and all the other elements that compose the post-war consensus.
One of the tricks Johnson managed to pull off in this election was to paint himself as a saviour of public services, and and a leader untarnished by ten years of Tory austerity policies. The British public is in for a rude awakening when it finds out Johnson’s brand of rambling One Nation populism was a cover for a much tougher and more conservative agenda than many voters realise.
So the puzzle that many commentators are trying to figure out is how it is that a right wing figure of this kind could get one over on Corbyn who pitched his entire campaign on the promise to protect the health service and promote public ownership of key sectors such as the railways and the post office?
What became clear as the night unfolded is that former Labour constituencies in the Midlands and the north of the country have been, and still are, in favour of Brexit. Johnson promised to get Brexit done, and Labour did not. For much of the electorate, this was enough of a reason to cross well established political divides and tribal loyalties.
But it’s also clear that many voters didn’t trust Jeremy Corbyn. They saw him as too beholden to sectional interests, too evasive, too metropolitan and too left wing. Johnson, by contrast, came across as a capable if lovably bumbling figure who was able to articulate not only a clear line on Brexit, but also to distance himself from the legacy of destructive Tory policies. In the end it was Corbyn, not Johnson, who proved to be political Vegemite.
This proved a winning formula across England and most of Wales. But elsewhere, the story was rather different. In Scotland, the Nationalists improved their result from 2017, often at the expense of the Liberal Democrats, and indeed the latter’s leader Jo Swinson, who lost her seat to the Scottish National Party (SNP).
This sets up an important byline for 2020 which is the matter of Scottish independence. With Brexit now almost certain to go forward at the end of January 2020, the pressure will immediately mount to allow Scotland to have another independence vote on the back of the SNP’s crushing performance.
While the picture is less clear in Northern Ireland, the overall trend was towards increased support for the nationalist parties at the expense in particular of the Democratic Unionist Party, which similarly lost its parliamentary leader Nigel Dodds.
While the dynamics in Northern Ireland are quite different from those of Scotland, the realisation that Brexit will now take place is bound to provoke a sustained debate on the need for a border poll on the future of Northern Ireland itself. This may take some years to resolve, but the line of travel is becoming clearer, and it points towards the reunification of Ireland. Johnson’s triumph may thus herald the break-up of the UK – to be greeted, it seems, by English indifference.
But the clearest takeaway remains the state of progressive politics in the UK. The centrist Liberal Democrat party had a very bad election. The Green party managed to increase its share of the vote but only managed to win one seat. The Labour Party was sent packing in many of its traditional working class heartlands in the North.
As long as progressive and left politics is spread amongst these various parties, it seems unlikely that we can expect a recovery any time soon, certainly as far as electoral politics is concerned. The Labour Party will now hunker down to decide whether it is going to row back towards the centre under a leader such as Kier Starmer, or whether it is going to maintain the more radical position associated with Corbyn, McDonnell and the Momentum faction that now dominates many local constituency parties.
With the victory of Johnson demonstrating the importance of a charismatic and effective leader, attention will turn to the next generation of Labour politicians. It is difficult at this juncture to be confident there is a serious challenger waiting in the wings of the current Labour Party who can provide an effective counterpoint to the ebullient Johnson. But it must. More of the same will not turn the tide.
The right does not have a monopoly on effective communicators and charismatic leaders. But what it does have is a keener appreciation of the dynamics of the moment: that policies do not sell themselves; they have to be sold by someone who has an ability to connect, to articulate a position that voters feel comfortable with, and which chimes with their own experience, values, hopes and fears.
Some call this populism. But the reality is simpler: this is – and always has been – the formula for winning elections. It’s a formula the left would do well to memorise.
And so the UK will head to an election on December 12 to try to resolve the spectacular mess that is Brexit. It’s an outcome many of us had been predicting for some time.
The only surprise is that it came about as it did. Prime Minister Boris Johnson has, after all, just managed what seemed nearly impossible a mere few weeks back, which is to both achieve a compromise agreement with the European Union over the terms of withdrawal and convince the House of Commons that it should vote in favour of it, and by a princely majority of 30.
So why did Johnson seek an election? And why, at the third attempt, did Labour leader Jeremy Corbyn agree? More generally, will an election get us out of the royal mess the UK finds itself in?
As far as Johnson is concerned, he wants Brexit, but he doesn’t want any old Brexit. He wants a “proper” Brexit, a clean break from the EU that will, as his mantra insists, deliver the UK the ability to negotiate its own trade deals.
The only way Johnson can do that is by differentiating between the trade regime for Northern Ireland and for the rest of the UK. The Democratic Unionist Party (DUP) doesn’t like it. Most of the House of Commons doesn’t like it.
So rather than try to push through an agreement that would be sliced and diced on its way through the House of Commons until it was no longer recognisable as Brexit, Johnson prefers to roll the dice and trust the instincts of the electorate to deliver a larger majority. This will in turn permit him to ignore the DUP and isolate the softer elements of his own parliamentary party, assuming they haven’t been deselected in the run-up to the election.
Why did Corbyn agree after turning down an election three times in recent weeks?
He didn’t want an election with the threat of a no-deal October 31 deadline. With an agreement in place with the EU for the terms of the UK’s exit, the objection is no longer valid.
Corbyn may be 15 or so points behind in the polls, but he was over 20 points down in the polls against Theresa May in 2017, and what happened? Labour fought an excellent campaign and shredded May’s majority to the point where her premiership became defunct.
He feels he can do this again running on a platform against austerity and inequality.
He may be right. This election is difficult to call, not least because of Labour’s own position on Brexit, which is a nuanced one, to put it mildly. Its pitch is that a Labour government will renegotiate the only-just-renegotiated withdrawal agreement and put the deal to the people in another referendum.
So they think they can do better than Johnson as far as negotiating with the EU is concerned, but they’re not prepared to campaign in favour of what it is they renegotiate. Let’s just say the subtlety of that position may be lost on some parts of the electorate.
But this isn’t going to be a contest of Labour versus the Conservatives. There are new elements in the mix and some more familiar ones to make it even harder to see through the darkened glass.
The new elements are Nigel Farage’s Brexit Party standing for an even cleaner and harder Brexit than Johnson’s. There is also the Liberal Democrats, who have repositioned themselves under new leader Jo Swinson as a remain party – not a referendum party, but an out and out remain party. With around 50% of the electorate favouring remain over any iteration of Brexit, this is fertile soil for creating upsets in marginal seats, perhaps even Johnson’s own.
The more familiar elements that complicate matters further are the regional parties in Scotland, Wales and Northern Ireland. The Welsh voted to leave in 2016, but with a patrician Tory in No. 10, will they back leave parties in the election? It has to be doubtful.
The remainer Scottish National Party (SNP) will no doubt do very well in Scotland. Northern Ireland may lean even more heavily to remain parties in the knowledge that unionism was sold out in Johnson’s compromise with the EU.
The honest answer is no one knows. Party loyalties will be near irrelevant in what is being billed as the “Brexit election”.
The one constant in all this is that the country remains as deeply split as it was in 2016. No big swings in opinion have taken place to suggest a clear victory is likely for either remain or leave-backing political parties. And there are narratives around austerity and inequality that may play out strongly, as they did in 2017.
A hung parliament is, it would seem, the most likely destination. If it is, then what of Brexit? In this scenario, Brexit continues to be what it has been for the past three years, a kind of impossible object of desire: elusive, divisive, polarising.
Many pundits seem to think Johnson is a shoo-in for a majority and will therefore get his Brexit. But don’t be so sure.
Remainer forces are buoyant that they will in effect get a chance to rerun the 2016 referendum. They will be better organised and more focused on the possibilities for tactical voting presented by a single-issue election.
There is a chance – just a chance – that far from smoothing the UK’s exit from the EU, the election blows up in Johnson’s face and delivers a remain parliament.
Against seemingly all the odds, we have a new Brexit deal. As an apparent vindication of UK prime minister Boris Johnson’s strategy to ramp up the threat of a no-deal departure from the EU and to force concessions from Brussels, one would imagine that Number 10 is rather happy right now. But that happiness will be tempered with caution, because some major issues lie ahead.
Negotiations in Brussels have produced legal texts on arrangements for Northern Ireland and on the political declaration, which outlines the broad outline of what the two sides want from their future relationship. These are the product of months of planning by the British government, so it’s reasonable to ask what has actually changed since former prime minister Theresa May struck her original deal.
Reading the text, the first impression is that there’s much more that hasn’t changed than has.
The protocol on Northern Ireland and Ireland has long been in the firing line. It proposes a backstop arrangement that would keep Northern Ireland in close alignment with the EU unless and until both UK and EU agreed to change that.
On that front, the introduction of a section on “democratic consent” is an important shift on the EU side. This provides a mechanism for the Northern Ireland Assembly to vote on whether to maintain the provisions of the protocol, with a requirement to have cross-community support. That means the UK is now no longer subject to the EU’s approval if it wants to end the backstop arrangement.
That said, a voting requirement to have majorities from both unionist and nationalist groupings makes it very hard to achieve – especially since the Northern Ireland Executive broke down several years ago and is still not in operation. While the Democratic Unionist Party (DUP) might control unionist voting, it can only do the same with nationalists if it creates a much more benign and cooperative environment. And even if that does happen and arrangements are voted down by Stormont, there is still a long phasing-out period, so things cannot move too quickly.
From the EU’s perspective, this arrangement provides a degree of security, mainly because any decision to overturn the system is not solely in the hands of the UK – which has not been the most reliable partner of late.
The other big change is on customs arrangements. Instead of creating a temporary customs area for the whole of the UK, the revised Protocol makes Northern Ireland a part of the UK’s customs territory. Because that would imply border controls, a rather convoluted system of custom duty collection is set out.
In essence, the system collects duties from businesses, dependent upon where goods are coming from and going to, with the possibility of various exemptions that will be agreed down the line.
It’s a much more complex system than before, but it does allow Johnson to argue that the entire UK is leaving the EU’s customs union, allowing it to benefit from any new trade deals that might be concluded.
Meanwhile, the political declaration, the main change is that the UK now suggests it is looking for a much looser future relationship, based on a free trade agreement, rather than anything that might include participation in the EU’s single market or customs union.
While these are all noteworthy, they do represent only a very small part of the totality of the withdrawal agreement, as agreed by May last November. The Protocol still kicks into effect at the end of a transition period and the effect is still that Northern Ireland is kept very close to EU’s regulatory standards for many years. The future relationship remains as aspirational as May’s plans – until such a document is negotiated and ratified, by some future British government, no one can be sure what it will look like.
Nor did this negotiation touch on citizens’ rights, financial liabilities, the power of the EU’s courts to issue definitive rulings on matters of dispute (an important matter for hard Brexit supporters in the Conservative Party) or the institutional arrangements for managing all of this. Even as Number 10 goes into its selling mode, those continuities from last year’s text will be present in many people’s minds.
The plan still seems to be for the government to present this deal to the UK parliament in a special Saturday sitting on October 19. We already know that the DUP has issues with the revised text because it places Northern Ireland in a different legal position to the rest of the UK, so winning that vote looks even harder than it already did. The government will hope that it can present the deal to MPs as the last, best hope for a Brexit settlement – but, with wobbles from the DUP, Johnson will struggle to get close to a majority.
Even if he does, the potential to keep that majority together for the subsequent passage of the Withdrawal Agreement Bill looks even less likely. And remember that, as things stand today, this text isn’t even signed off by the 27 EU member states – there’s now not really enough time for them to digest and approve something that moves them off their previous position.
In short, this might still fall apart for Johnson, just as it did for May.
The UK Supreme Court’s finding that Boris Johnson’s suspension of parliament (or prorogation) was unlawful has raised the question of whether similar judicial action could be taken to challenge a controversial prorogation in Australia.
There have been several occasions in the past when prorogation has been used in Australia to achieve political aims.
For example, in 2016, the Turnbull government used prorogation as a means of forcing the Senate to sit and reconsider a previously defeated bill in order for it to become a double dissolution trigger.
The Keneally government in NSW and the Rann government in South Australia both prorogued parliament for long periods prior to elections. The moves prompted allegations they were intended to shut down embarrassing inquiries, but no one sought to challenge them in court.
In light of the UK legal challenge to Johnson’s prorogation that impeded parliamentary action prior to the Brexit date of October 31, will similar court challenges to these types of suspensions be more likely in the future? And would Australian courts consider hearing such challenges?
The UK case potentially has relevance for Australia because it neatly side-stepped the more contentious question of whether the prime minister’s advice to the Queen could be the subject of judicial review on the ground it was given for an improper purpose.
Or as the British media more bluntly put it, whether Johnson lied to the Queen.
Instead, the Supreme Court focused on its judicial power to determine the existence and extent of the executive’s “prerogative” powers.
These are the traditional powers of the monarch that have been passed down over centuries rather than being conferred by law. Australian and UK courts have long recognised that it is up to the courts, through applying the common law, to determine the scope of these powers.
In doing so, the UK court looked to fundamental constitutional principles, such as parliamentary sovereignty and responsible government, as imposing limits on the executive’s power to prorogue.
It recognised that parliamentary sovereignty would be undermined if the executive could prevent parliament from exercising its legislative authority for as long as it pleased.
It also expressed concern that responsible government would be undermined and replaced by “unaccountable government” if parliament were prevented by the executive from scrutinising its actions.
The Supreme Court held that advice to the Queen to prorogue parliament, and any decision based upon that advice, will be
unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.
Whether or not the prorogation has this effect is a question of fact which falls well within the jurisdiction of the courts to determine.
More controversial is the assessment of what is a “reasonable justification” to suspend parliament.
The Supreme Court pointed out that a short period of prorogation for the purpose of ending a session of parliament and starting a new one would not require further justification.
The court would only need to consider additional justification in “unusual circumstances”. In doing so, it would need to be sensitive to the responsibilities and experience of the prime minister.
In this particular case of the prorogation of the UK parliament for five weeks, the court deemed the circumstances to be not only “unusual”, but “exceptional”.
This was because a “fundamental change” in the Constitution of the United Kingdom is to occur on October 31 when the country is due to leave the European Union. In addition, the House of Commons had already demonstrated that it does not support the government on Brexit, and the prorogation would prevent parliament from carrying out its constitutional role for a significant period before that date.
The Supreme Court was also not offered a reasonable justification by the UK government for the length of the prorogation. It was merely told that a new session of parliament was desired so the government’s agenda could be set out in the Queen’s Speech.
Moreover, there was no consideration by the government of how much time was needed to scrutinise and enact legislation prior to the October 31 deadline, or the competing merits of adjourning or proroguing parliament.
The court pointed to the prime minister’s constitutional responsibility to take into account all relevant interests, including those of parliament, when advising the Queen. In an unusually pointed observation, it noted there was “no hint” of Johnson exercising that responsibility.
Based on this evidence, the court ruled it was impossible to conclude there was “any reason, let alone a good reason” to prorogue parliament for five weeks.
This meant that not only was the advice to prorogue parliament unlawful, but also that parliament would be able to continue in session.
Would the same kind of challenge occur if a government prorogued parliament in Australia?
Proroguing parliament for a short time to ensure it sits to exercise its functions, as was done by the Turnbull Government in 2016, would clearly be acceptable.
Proroguing parliament for a long period would be much more vulnerable to challenge if it prevented parliamentary inquiries from continuing, for example, or delayed the tabling of embarrassing documents.
The government would have to be prepared to provide evidence to the courts showing “reasonable justification” for the period of prorogation, if it were challenged.
Would Australian courts be prepared to follow the UK Supreme Court precedent?
They would certainly give serious consideration to it, as this is the only precedent on the prorogation of parliament in a Westminster-style system of government, and the unanimous judgement of a significant court.
Moreover, the UK court’s reasoning is very similar to existing Australian cases in which courts have ruled that the common law must be interpreted in a manner that is consistent with constitutional principles.
This means that Australian governments should, in the future, be quite careful when proroguing parliament. They will need to ensure they do not do so for unnecessarily long periods of time and to prevent parliament from fulfilling its legislative and scrutiny functions, especially during periods of political controversy.
If their action is challenged in the courts, they will also need to be prepared to provide evidence of a reasonable justification for doing so.
Boris Johnson has secured the prorogation of the British parliament, which means it will be prevented from sitting for much of the crucial period between now and the Brexit date of October 31.
So what options do those opposed to a no-deal Brexit now have in parliament to prevent it?
If a majority of the House of Commons were opposed to a no-deal Brexit, two primary routes are open to it. One would be the enactment of legislation requiring the government to seek a further deferral of the Brexit date until after some circuit-breaking event could be held, such as a new referendum or general election. The other would be a vote of no-confidence in the government and an early general election.
Both would be extremely difficult to achieve within the now very tight parliamentary timeframes – which presumably was the point. This prorogation is cunningly timed and placed. The fact that parliament has not been prorogued for the entire period leading up to the Brexit date makes it harder to argue in the courts that the prorogation is unconstitutional.
The fact that Johnson gave prorogation advice to the queen before a court could decide on whether to issue an injunction to prevent the giving of such advice (with a hearing on the matter having been scheduled for September 6) also potentially stymies the use of the courts to prevent prorogation. This is because the main avenue for legal attack is in relation to the giving of the advice by ministers, rather than the action of the queen in giving effect to that advice. The latter would normally be regarded as “non-justiciable” – outside the appropriate exercise of judicial power.
In addition, slicing up the sitting period with prorogation in the middle, from September 10 to October 13, means it is now likely there is too little time to achieve all the procedural steps necessary to pass legislation or the resolutions necessary to secure a change in government.
This is exacerbated by the fact that the government largely controls the order of proceedings in the House of Commons and prorogation effectively wipes the parliamentary slate clean of any uncompleted action. Any partially completed action would have to start again once parliament resumes.
One alternative that has previously been raised is a vote of no confidence in the government and an early election. The UK has fixed five-year terms for its parliament. But an early election can be held if a two-thirds majority of the House of Commons votes for it, or if there is a vote of no confidence in the government and after 14 days there has been no vote of confidence in the government.
In either case, the Fixed-term Parliaments Act 2011 states that the election is to be held on a day appointed by the queen on the recommendation of the prime minister.
A senior government source reportedly told The Guardian:
We have been very clear that if there’s a no-confidence vote, [the prime minister] won’t resign. We get to set an election date. We don’t want an election, but if we have to set a date, it’s going to be after 31 October.
What could be done to avoid that outcome?
The House of Commons could instead act to force the resignation of the prime minister, secure the appointment of a caretaker prime minister, bring about an early election and authorise the new prime minister to seek to defer Brexit until after the election was held so the people could make the ultimate decision on Brexit.
The Fixed-term Parliaments Act deals solely with issues of confidence in relation to the holding of an early election. It provides that only a resolution “that this House has no confidence in Her Majesty’s Government” can cause an early election. It does not deal with other expressions of no confidence in the government.
As the then clerk of the House of Commons advised the House of Commons Public Administration and Constitutional Affairs Committee in 2018, the House could pass a “no confidence motion in other terms than those in the Act”, including no confidence in a specific minister.
This would have a “massive political effect but [would] not trigger the terms of the Act”.
So if, for example, the house expressed no confidence in Boris Johnson to hold the office of prime minister, he would be forced, by convention, to resign.
In addition to passing a vote of no confidence in a prime minister, the house may pass a “constructive motion of confidence”, which states that it has confidence in someone else to form a government.
This may be a compromise candidate who is trusted by both sides to run a caretaker government, which makes no significant policy decisions or appointments but simply undertakes necessary ordinary business until an election is held.
The formation of a caretaker government is consistent with British parliamentary practice. Winston Churchill formed one and popularised the “caretaker” term in 1945.
When a prime minister resigns, he or she might give advice to the queen as to whom to appoint as his or her successor. But the queen is not bound by this advice, as the outgoing prime minister ceases to be responsible to parliament for it.
Instead, the queen is obliged to appoint as prime minister the person most likely to hold the confidence of the House of Commons. If the House of Commons has declared, by resolution, who this person is, then the queen has clear evidence, so her appointment of that person cannot be questioned.
The next consideration is that a caretaker prime minister is by convention constrained in undertaking significant acts. If parliament wanted the prime minister to renegotiate the Brexit date so the people could decide on Brexit as a key policy in a general election, it would be prudent for a parliamentary resolution to authorise this action.
Finally, in the United Kingdom it has historically been the case that fundamental constitutional change has been put to the people in a general election. An example is the equally divisive debate over Home Rule for Ireland and the limitation of the powers of the House of Lords.
This means the House of Commons would need to pass a formal resolution that “this House has no confidence in Her Majesty’s Government”, referring to the government established by the new prime minister. This would allow an early election to be held.
In addition, to ensure the caretaker government was for the shortest possible time, the house could resolve that the prime minister should set a particular date for that election.
A series of resolutions could achieve this, but it would require a united front from those opposed to a no-deal Brexit and clever parliamentary tactics to achieve it within the very limited sitting time available.
It may prove that prorogation was the masterstroke to prevent this from occurring.