Many Scots want independence from the United Kingdom. How might that play out in a post-Brexit world?



AAP/EPA/Robert Perry

Simon Tormey, University of Bristol

Of the many issues thrown up by Brexit, one of the most pressing is the territorial integrity of the United Kingdom. Brexit was in large measure a revolt by a certain section of English and Welsh opinion against transnational elites, immigration and imagined loss of identity. Scotland and Northern Ireland voted to remain.

The Brexit vote reinforced the sense that the “interests of the UK” is a proxy for the interests of numerically larger England over other parts of the union. Surely Scotland, with its strong sense of national identity and separateness, would seek to challenge the union and return to the warm embrace of the European Union at the earliest opportunity?

This sentiment was further reinforced by the recent success in elections of the pro-EU Scottish National Party (SNP) led by Nicola Sturgeon. The SNP demolished the opposition in the 2019 election, winning 48 out of 59 possible seats.




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With Boris Johnson sweeping to power as UK prime minister on the back of a breakthrough in the Midlands and northern England (the “Red Wall”), the scene was set for a showdown over the issue of another referendum on Scottish independence. Some even speculated we would see a Catalonia-style challenge to the authority of Westminster. So what is the state of play, and what is likely to happen?

Recent opinion polls demonstrate growing support for Scottish independence, which has tipped past 50% of the electorate. More Scots now favour independence than at any time in recent history. In the 2014 referendum, the vote was 45-55 against independence.

But the fact that support for independence is growing doesn’t mean there is a consensus on when a new vote on the issue should take place. This is proving a key consideration.

While there is some support for a poll as soon as one can be organised, others want to wait for next year’s elections to the Scottish parliament to be held first. Still others feel the timing is not right and that clarification is needed on the nature of the UK’s future relationship with the EU, which has yet to be resolved.

Scottish independence is an urgent matter for some, particularly for nationalists, but is much less so for others, particularly remainers who may otherwise have been lukewarm on independence. This exposes a key faultline in the independence constituency itself: some want independence whatever the cost, the commitment of others to the cause might somewhat rest on the prospect of economic benefits for Scotland, which they may feel EU membership would offer.

All this poses a headache for Sturgeon. Does she seek a showdown with Johnson now, but at the risk of losing that part of her support that doesn’t want an immediate poll? Or does she wait until the middle of 2021, when an election might return yet more SNP members to the Scottish parliament, adding legitimacy for a vote on independence – but at the risk of a loss of momentum?

In addition to the vexed question of timing is the nature of the regime in Westminster. The SNP is a left-of-centre party, drawing support from those who wish to see increased funding for social services, housing and education.

Normally, the SNP would find itself in ideological opposition to a centre-right Conservative administration in Westminster. But part of Johnson’s election strategy was to promise to spend big on infrastructure across the UK. There is even talk of a bridge between Northern Ireland and Scotland.




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With the promise of such largesse, the feeling lingers that Scotland does quite well out of its partnership with Westminster. This is an intentional strategy on Johnson’s behalf. The calculation is that by using the superior resources available to him he can undermine the case for Scottish independence, which without EU support is likely to result in an economic hit to the Scottish economy. Vote for independence, in other words, and Scots will be poorer.

This is, as the Scots might say, a canny strategy. It certainly complicates the equation and has already served to dampen the ardour of those who might otherwise have been committed to an early poll.

What might dampen it further is the early panic in Brussels over who will pay the increased costs for the EU itself due to the departure of the UK. The semblance of technocratic modernity and cohesion the EU likes to paint of itself is coming under strain and so, therefore, is the SNP’s case for making a play to rejoin the EU.

Whether all this is enough to keep the Scots in the UK is a matter of speculation. There are lots of obstacles that might yet derail the Johnson strategy: a bad trade deal with the EU, a balance-of-payments crisis, together with loss of revenue for his grand strategy.

But what has become evident since Johnson took power is that he should not be underestimated. Or, rather, an administration underpinned by the Machiavellian cunning of his chief adviser, Dominic Cummings, should not be underestimated.

Sturgeon will need all her famed powers of persistence to prevent the independence issue being derailed by a combination of exhaustion with elections and referendums, a Johnsonite play for the centre ground of Scottish opinion, and a collapse in confidence in the viability of a life outside the UK.The Conversation

Simon Tormey, Professor of Politics, University of Bristol

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Johnson’s thumping win an electoral lesson in not just having policies, but knowing how to sell them



With Johnson’s crushing win, Brexit will now happen. But this may also be the start of the break-up of the UK.
AAP/EPA/Vickie Flores

Simon Tormey, University of Bristol

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.




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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.




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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.

The Scottish National Party’s strong performance, led by Nicola Sturgeon, will lead to a push for independence vote.
AAP/EPA/Robert Perry

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.The Conversation

Simon Tormey, Professor of Politics, University of Bristol

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The UK’s 2019 election cannot be a re-run of the 2017 campaign


Christopher Kirkland, York St John University

The UK is due to go to the polls on December 12 in an attempt to overcome parlaiment’s impasse over Brexit. Given the latest missed deadline of October 31, it seems inevitable that Brexit will dominate this campaign. Boris Johnson and the Conservatives are blaming parliament for blocking the passage of a Brexit agreement. Jeremy Corbyn and Labour are highlighting the dangers of Johnson’s deal, as well as pointing out that the government pulled the deal before parliament could vote on it, somewhat undermining the idea that MPs have blocked it.

While politicians may be keen to offer such narratives, voters may – and indeed should – express different priorities. They should ask more of candidates than a simple re-run of either the 2016 referendum or the 2017 general election, both of which have been unable to deliver change.

Politicians can help this by ensuring that debating Brexit does not come at the expense of other topics. To achieve that, the narrative on the biggest issue of the day needs to be focused and specific so that it is less likely to sprawl out and dominate everything. If politicians can do this then we can begin to talk about other issues.

Even if a new government were to agree a deal quickly and get it through the new parliament in time for the January 31 deadline, that would not be the end of the story. After the deal passes, the UK will enter a transition period with a new deadline of December 31 2020. Any agreements made here will set out the UK’s future relationship with the EU. This will be much more difficult to negotiate than the current withdrawal agreement (not least as this agreement will encompass far more than the current withdrawal agreement).

It seems remote to suggest that the future relationship – something more complex than the process of leaving – can be negotiated any quicker than the withdrawal agreement. Bearing in mind there already been two and a half years of negotiations up to now, it is likely that these negotiations will consume most of the time afforded to the next parliament. They may not even be completed before the next election in 2024.

Hopes are not plans

One problem is that without knowing when or how the big Brexit issues will be resolved, the debate can only revolve around abstract ideas. This was a key problem in the original Brexit campaign. Important questions could be left unanswered because so much was unknown. At times, voters were even fed misinformation.

One function of an election is to hold incumbent governments and MPs to account – and in order to do this in the future, greater attention needs to be placed on demanding politicians present feasible policy suggestions rather than chasing fanciful ideas.

We should be wary of MPs or candidates who appear able to promise a range of options to different (sub-groups of) voters. Even in the early stages of the campaign we can see divergence between those advocating a form of Brexit. Johnson is promoting his deal and new deadline of 31 January 2020, while Nigel Farage, at the launch of the Brexit Party, criticised the deal and suggested a further extension to July 2020 could be possible.

Here it is important to note the language used on the campaign trail. What a party hopes to achieve in Brexit negotiations is not necessarily the same as what they can achieve. They may not even have control over the things they are promising. Remember any deal (including any alterations or new deals) will have to be signed off by the EU.

The domestic agenda

Even if we accept the narrative that Brexit can be “resolved” in the next parliament, the question then left is what comes next? What are the post-Brexit plans? Any aspiring government simply cannot wait until the end of Brexit to start implementing policies. Parliament has been bogged down by Brexit ever since Article 50 was triggered in 2017 and has carried only a fraction of the amount of work it might otherwise.

Candidates in the elections could help to offer some reassurances about Brexit by talking about other policy areas too. A government looking to hold office until May 2024 will need to address environmental changes, the future of the union, the legacy of austerity and plans for reigniting the economy, as well as traditionally salient issues such as welfare (including the NHS) and education.

Clarity on domestic policies will also have the effect of reassuring voters who are worried by the different permutations that Brexit may offer. And such clarity could, in turn, help to mitigate some of the economic risks associated with Brexit. If we can’t be sure about what will happen after Brexit, a party hoping to reach government could at least offer stability on other matters.The Conversation

Christopher Kirkland, Lecturer in Politics, York St John University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Boris Johnson sends UK voters to the polls, hoping for the ‘right’ kind of Brexit. But it just might backfire


Simon Tormey, University of Bristol

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.




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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?

It’s not if you Brexit, but how

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.

What’s in it for Labour?

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.

Minor parties will play a major role

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.

So what’s going to happen?

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.




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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.The Conversation

Simon Tormey, Professor of Politics, University of Bristol

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Boris Johnson’s Brexit deal: what’s in it and how is it different to Theresa May’s version?


Simon Usherwood, University of Surrey

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.

Northern Ireland

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.

Customs arrangements

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.

Less is more?

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 Conversation

Simon Usherwood, Professor in Politics, University of Surrey

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The UK Supreme Court ruling on suspending parliament is a warning for Australian politicians



The UK Supreme Court ruled there was no good reason for Boris Johnson to advise the Queen to prorogue parliament.
Jessica Taylor/UK Parliament Handout/EPA

Anne Twomey, University of Sydney

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?

What the UK Supreme Court ruled

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.




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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.

‘Reasonable justification’ to suspend parliament

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”.




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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.

Boris Johnson sought the Queen’s approval to prorogue parliament for five weeks. The Supreme Court ruled there was no reason for him to do so.
Victoria Jones/EPA

Will the UK ruling set a precedent in Australia?

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.




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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.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Boris Johnson has suspended the UK parliament. What does this mean for Brexit?



UK Prime Minister Boris Johnson’s decision to suspend the parliament at a crucial time for Brexit negotiations may stymie his opponents.
AAP/UK Parliamentary Recording Unit handout

Anne Twomey, University of Sydney

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?

A cunningly placed and timed prorogation

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.




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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.

Confidence, fixed-term parliaments and an election

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.




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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.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Boris Johnson, ‘political Vegemite’, becomes the UK prime minister. Let the games begin



New UK Prime Minister Boris Johnson will succeed or fail on the back of the single dominant issue that dominates British politics: Brexit.
AAP/EPA/Will Oliver

Simon Tormey, University of Sydney

To no-one’s great surprise, Boris Johnson has been elected by the members of the Conservative Party to be the new leader, and by extension prime minister of the United Kingdom, taking over from Theresa May.

Such a turn of events seemed highly improbable a few months ago. Johnson is a polarising figure not just for the country at large but for his own party. An instantly recognisable figure with his unruly blonde mop, rotund Billy Bunteresque figure and fruity Etonian accent, Johnson is political Vegemite. He delights those who look for “authenticity” in their political leaders, often code for plain speaking, unscripted rudeness and lack of civility. He appals those who expect politicians to abide by some basic principles, uphold integrity in public life and seek to defend the common interest through negotiation and compromise.

Those who detect similar qualities in Johnson to those characterising Donald Trump would not be wrong. Both are noted for improbable haircuts, but beyond that they share a penchant for seeing politics in simplistic and antagonistic terms. Politics is a zero-sum game.




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For some to win, others must lose, and those others invariably include every shade of minority identity, whether it be Muslims, homosexuals, immigrants or otherwise feckless folk who need to try harder, do more, speak better English or in some other way accommodate themselves to the dominant majority.

For all of her faults (and there were many), Theresa May at least stood for a certain even-handedness, a recognition of the need for a centre-right party to build a coalition across disadvantage as well as advantage, and to respect differences. That accommodating rhetoric is likely to disappear with the end of her premiership.

But Johnson will succeed or fail on the back of the single dominant issue that dominates British politics: Brexit. How will his approach differ from that of his immediate predecessor?

Johnson has promised throughout his campaign to be leader of the Conservative Party that he will bring Britain out of the European Union by October 31, “do or die”. No going back to the withdrawal agreement. No compromise with the Northern Ireland backstop or with many other elements that so irritate the “hard Brexit” wing of the party.

So much for the rhetoric. The reality is that the EU is not going to change the withdrawal agreement. Nor will the House of Commons permit a no-deal Brexit. Only last week an amendment was passed that effectively demonstrated the strength of the anti-no deal majority in parliament.

This leaves very little room to manoeuvre. If Johnson remains true to the no deal rhetoric then we can expect a vote of no-confidence quite quickly in parliament, leading to elections perhaps as soon as November.

If, as seems more likely, Johnson manages to get the EU to change some words in the political declaration, such as the non-binding part of the withdrawal agreement, then he may seek to re-present what in essence was May’s deal back to the house in the hope that enough Labour MPs can be persuaded to join with the bulk of the Conservative Party (though not the hard-core European Research Group wing) to get it over the line. But this also seems improbable, likely leading again to an election.

A third possibility is that he recognises the intractability of the situation, and also the perils of calling an election as far as the prospects for his own party and premiership are concerned, and seeks a further period of negotiation with the EU. This might be for six months, a year or even more. Given Johnson’s well-documented desire to exercise power, such a scenario should not be ruled out.

But there is also fourth possibility, and this is the one that is exercising the greater speculation among the chattering classes in the UK. This is that recognising the lack of a majority for a no-deal Brexit in parliament, Johnson decides to “prorogue” parliament, a fancy term for suspending parliament in order to ram through an agreement on an executive basis.




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In effect, this is using the idea of “the will of the people” to overturn parliamentary democracy. The last time it was used in the UK was in the 1940s in order to undertake much-needed constitutional change to the status of the House of Lords.

The worry here, of course, is that this looks much more like the kind of “putsch”-style politics we are accustomed to seeing in banana republics than in one of the oldest democracies in the world.

So what many are wondering is whether behind the carefully confected image of a bumbling, playful figure so beloved of a certain wing of the conservative electorate, lies a neo-fascist figure willing and perhaps able to sacrifice democracy on the altar of English, as opposed to British, nationalism.

Let the games begin.The Conversation

Simon Tormey, Professor of Politics, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Why Boris Johnson would be a mistake to succeed Theresa May



Boris Johnson is one of the leading candidates to succeed Theresa May as prime minster. He has none of the required qualities to make a success of Brexit.
Andy Rain/EPA

Ben Wellings, Monash University

Like Avengers: Endgame we all knew it was coming but weren’t quite sure exactly how it would play out. Theresa May, the Remainer who promised to deliver Brexit, has finally relinquished her impossible job.

Many in the UK, the EU and above all the Conservative Party will be toasting her departure, but it is hard not to feel sorry for her. She was certainly dealt a bad hand.

But the added problem was she played it badly, too. By interpreting the vote to leave the EU as a mandate for a “hard Brexit”, she made the UK government hostage to the extreme Brexiteers in her own party.

Above all, her decision to call a snap election in 2017 was the greatest miscalculation in British politics since 2016, when then-Prime Minister David Cameron lost the EU Referendum. (The bar is set quite high at the moment.)




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In the end, her much-vaunted resilience and fortitude became part of the problem rather than the solution. The Brexit conundrum requires a deft political touch, sublime party management skills, subtle negotiation techniques, interpersonal nous and a sense of the gravity of the situation that the United Kingdom faces.

Cue… Boris Johnson.

Boris Johnson’s hard-Brexit stance has made him a popular favourite to replace May as Conservative leader.
Andy Rain/EPA

BoJo’s hard Brexit credentials

Johnson – or BoJo to his mates – is one of the leading candidates to succeed May as prime minster. He has none of the required qualities to make a success of Brexit. If Johnson becomes PM, the most likely outcome is a no-deal Brexit leavened with the rhetoric of past and future glories.

Johnson is the gadfly of British politics. There has always been a strong suspicion that Brexit is merely part of a grand strategy to make himself prime minister – like Winston Churchill, only not as good.

A latecomer to the Brexit cause, his influential role in the Leave campaign saw him elevated to the position of foreign secretary. In ways that can happen only to the privileged, this was a position he acquired as a punishment for getting Britain into this mess in the first place.

Slumming it as foreign secretary was never going to be enough for Johnson – he’s always had his eyes on 10 Downing Street. But he has not chosen the usual path to the top: entering Cabinet, working diligently, cultivating a broad appeal that can transcend party politics when one tilts at the top job.

Instead, he has chosen a more chaotic, even flippant, approach. It’s all quite a laugh, really. Offending foreigners is a particular forte of his: he’s made dismissive comments about US President Barack Obama’s “part-Kenyan” ancestry, compared the aims of the European Union to Hitler’s motivations and warned EU leaders not to give the UK “punishment beatings” after the referendum. This built on a long history of EU-baiting while he was editor of The Spectator.




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This kind of “British humour” is one of the reasons he is so universally disliked within the EU. It is also one of the reasons he is so favoured amongst the Conservative rank and file.

Having taken a drubbing at local and EU elections, the Conservatives have the sense to see the crisis facing their party, even if they continue to believe that Britain can be economically better off out of the EU. And the way Johnson has flexed his hard-Brexit muscles has won him support amongst a base that has become increasingly radicalised as the Brexit negotiations under May hit a dead end at Westminster.

Johnson’s hard Brexit credentials were established back in July 2018 when he resigned from Cabinet over the so-called Chequers proposal – the first of many iterations of the plan to extricate the UK from the EU.

But Brexit is not just about UK-EU relations. Despite the British rhetoric, Johnson, like most Brexiteers, does not understand the United Kingdom particularly well. The whole impasse over the Irish border backstop came about because no one in the Leave camp thought through the implications that leaving the EU would have on Northern Ireland.

Johnson is also not seeing the risk that a no-deal Brexit will very likely trigger another referendum – on Scottish independence.

What all this means for Australia

There is a morbid fascination with watching this from Australia, but we are closer to the whole mess than we might think.

Johnson is a huge fan of Australia. While in Melbourne in 2013, he suggested having a zone of labour mobility between the UK and Australia, similar to the rights enjoyed by EU citizens. In 2014, he went further by proposing such a labour mobility zone in a report to parliament.

This plan, however, was not well thought through. It is yet another example of Johnson’s greatest flaw.




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Johnson had fans here, too, although those people are mostly now departed from federal parliament. Before he made Prince Philip a knight of Australia, Tony Abbott made Johnson honorary Australian of the Year in 2014, for his services to Australians in “Kangaroo Valley” (Earls Court, not New South Wales) when mayor of London.

There are plenty of other candidates for leader of the Conservative Party (and hence prime minister), who would approach the job more seriously. But Johnson is popular and is recognised across the UK and the world over – and that will likely be enough to make him the next UK prime minister.The Conversation

Ben Wellings, Senior Lecturer in Politics and International Relations, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.