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.

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.

Simon Tormey, Professor of Politics, University of Bristol

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

Brexit Sorted?

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.

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 Labour Party wants to abolish private schools – could we do that in Australia?

Britain’s Eton College charges charges annual fees of more than £40,000.
from shutterstock.com

Paul Kidson, University of Wollongong

The UK’s Labour Party recently voted in a policy to effectively abolish private schools and integrate them into the state system.

This is a courageous move designed to redress social inequity – many of those working in the top levels of the UK government were educated in private schools. Two of Britain’s three most recent prime ministers went to the prestigious Eton College, which charges annual fees of more than £40,000.

The UK opposition party’s plan will likely warm the hearts of similarly minded Australians. Many of the same arguments about educational inequality have been floated in Australia. Many individuals and organisations have also, for years, been calling for the government to stop funding non-government schools.

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But implementing a policy in Australia like that proposed in the UK would prove very difficult. For one thing, it’s a matter of numbers. Only 5% of the United Kingdom’s students go to a private school. The challenges are magnified in Australia where nearly 15% of students are enrolled in independent schools and nearly 20% in Catholic parish schools.

But beyond that, Australia’s complex set of school governance structures would make such a move very unlikely to succeed.

Eight education systems

Under UK Labour’s proposal, if it took office, private schools would lose their charitable status and any other public subsidies or tax breaks. Their endowments, investments and properties would be “redistributed democratically and fairly across the country’s educational institutions”.

For Australia to do the same, at the outset, it would be a constitutional issue. The Australian Constitution empowers states and territories to provide school education, thus creating eight different education systems. For Australia to abolish private schools like that proposed in the UK, a choice from three possible processes would need to occur to get around this issue.

First, Australia could change the Constitution. Second, all states and territories could voluntarily cede their powers for schooling back to the Commonwealth. Or third, each state and territory government could agree to enact the policy in its own jurisdiction.

Only eight of the proposed 44 changes to the Australian Constitution have been agreed to since Federation. And given the political territorialism that exists between states and territories, it is hard to imagine any of these solutions being implemented.

Assuming one of the above could be enacted, taking over existing non-government schools would be further complicated by the diverse nature of school governance structures.

Australia’s different school governance structures would make it almost impossible to cede all private education to the Commonwealth.
from shutterstock.com

In addition to being registered with their relevant state or territory government authority, more than 1,000 non-government primary and secondary schools are registered with the Australian Not-for-profit Charities Commission.

This means there are no “owners” who financially gain from operating the school. Financial surpluses are not distributed to shareholders but must be reinvested in the school.

For a government to take over a not-for-profit charity in such a way would cause extreme anxiety to the thousands of community organisations which also exist under this legal structure.

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Another group of non-government schools are governed by church authorities. A school such as William Clarke College in Sydney’s north-west, for instance, is governed by an ordinance of the Anglican Diocese of Sydney whose own authority is derived from state legislation. A smaller number of schools, such as Newington College in NSW or the eight Queensland Grammar Schools, are governed directly through acts of parliament.

To absorb these schools into one government system would require a change to a range of legislation covering charitable and religious organisations. Given various state and territory governments can’t even agree on the age students should start school, achieving consistency in the legislative realm seems remote.

We should keep working to reduce inequality

Advocates of private schooling in the UK have hit back at Labour’s proposal, indicating lengthy, and costly, legal challenges. These could range from parents’ rights to make choices for their childrens’ development (enshrined in Article 18 of the UN Convention on the Rights of the Child) through to property and charitable trust laws.

Resistance to the proposed policy change from the UK Headmasters’ and Headmistresses’ Conference (that describes itself as an association of heads of “some of the world’s leading independent schools”) is already fierce and suggests the same would likely be the case in Australia.

One consequence of inaction is growing inequity. Successful education systems prioritise equity and quality. Analysis of social disadvantage by the OECD found more than 52% of Australian disadvantaged students are enrolled in disadvantaged schools. This is compared to the OECD average of 48% and 45% in the UK (world leaders are Nordic countries at an average of 43%).

Australian analysis also highlights a growing concentration of advantaged students are already in educationally advantaged schools.

Creating a socially and politically just education system is a worthy objective. But it’s not just a public-private issue.

Segmented schooling also exists in some Australian government schooling jurisdictions. For example, NSW has a highly stratified government education system which includes single-sex schools and various selective schools (academic, performing arts, sports and technology schools).

This creates enrolment interest from families living outside local communities, exacerbating infrastructure pressures in government schools. And some of NSW’s selective schools have concentrations of students who are far wealthier than in some private schools.

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The debate over what our society wants from schooling is about equitable opportunities for everyone. The policy outlined by the UK’s Labour Party raises fundamental questions about the role and process of education in society. There seems value to ask the same for Australia.

Paul Kidson, Lecturer in Educational Leadership, University of Wollongong

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.

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.

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.

As Australia looks to join a coalition in Iran, the risks are many

The Morrison government must have a plan for Australia’s involvement if the “peacekeeping” descends into hostility.
AAP/Lukas Coch

Tony Walker, La Trobe University

Prime Minister Scott Morrison has indicated Australia will join a multinational peacekeeping force to protect freedom of navigation in the Gulf, but at this stage he has not indicated what form Australian participation might take.

Speaking to reporters after a conversation overnight with newly-installed British Prime Minister Boris Johnson, Morrison said Australia was “looking very carefully at an international, multinational initiative” to provide a peacekeeping role.

But given recent experience of Australia too hastily joining an American-led Iraq invasion of 2003, with disastrous consequences, Morrison and his advisers need to ask some hard questions – and set clear limits on any Australian involvement.

It is not clear the extent to which the prime minister and his team have interrogated the risks involved before acceding to an American request for some form of military contribution to policing one of the world’s most strategically important waterways.

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Nor is it clear what form Australian engagement might take to deter Iran’s threats to tanker traffic. This includes its seizing of a British-flagged vessel.

Options include sending a warship or warships to join peacekeeping patrols under American command, or stationing surveillance aircraft in the region to monitor ship movements through the Strait of Hormuz.

The operative words in the above paragraph are “American command”.

Any peacekeeping mission might be presented as a multinational exercise, but in effect the preponderance of American power, including an aircraft carrier battle group, means Americans would be in command.

In the Iraq invasion of 2003, Australians operated under broad American oversight, as did the British at considerable cost to Prime Minister Tony Blair’s reputation.

This is not an argument against Australian involvement in protecting a vital sea lane through which passes one-third of the world’s seaborne tradeable oil every day. Rather, it is to make the case for extreme caution.

Morrison and his team need to ask themselves whether there is a risk of being drawn into an American exercise in regime change in Iran. What might be the limits on Australia’s involvement should hostilities broke out in the Gulf?

What would be the rules of engagement? What might be an exit strategy?

What, for example, would be Australia’s response if a warship involved in a peacekeeping exercise was damaged – or sunk – in a hostile act? This includes hitting a mine bobbing in the Gulf waterway, or a limpet mine stuck on the side of a vessel.

We have seen this before in 1984, when traffic in the Gulf was brought to a standstill by Iran floating mines into busy sea lanes.

What would Australia’s response be in the case of a surveillance aircraft or drone being shot down if it strayed into Iranian airspace?

In other words, there are multiple possibilities of conflict escalating given the concentration of firepower that is planned for the Gulf.

The aim of any international mission to which Australia attaches itself should be to de-escalate tensions in the world’s most volatile region. A military presence cannot – and should not – be detached from a political imperative.

That imperative is to draw Iran back into discussions on a revitalised Joint Comprehensive Plan of Action. Under this 2015 plan, the Iranians agreed to freeze their nuclear program under International Atomic Energy Agency (IAEA) supervision.

Iran was complying with that agreement before US President Donald Trump recklessly abrogated it in 2018 and re-applied sanctions. These have brought Iran’s economy to its knees.

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Trump’s abandonment of the JCPOA against the wishes of the other signatories, including the permanent members of the United Nations Security Council plus Germany, was as inexplicable as it was damaging.

Now, the world is facing a crisis in the Gulf of American making, and one that Washington is asking its allies to police.

Morrison has been equivocal about the JCPOA. He would be well advised to reiterate Australia’s backing for the agreement as a signal to the Americans that Australia stands with its allies in its support of international obligations.

These cannot – and should not – be ripped up at the whim of a president who seems to have been motivated largely by a desire to undo the useful work of his predecessor.

Not to put too fine a point on it, this has been an act of self-harm to American interests and those of its allies. It is a crisis that need not have occurred.

Viewed from the distance of Canberra, Morrison and his advisers might have difficulty fully comprehending the risks involved in a potential escalation of tensions in the Gulf.

In a useful paper, the International Crisis Group warns of the dangers of an escalation of hostilities due to a mistake or accident in a highly charged environment.

As Iran Project Director Ali Vaez puts it:

Just as in Europe in 1914 a single incident has the potential of sparking a military confrontation that could, in turn, engulf the entire region.

What should be kept in mind in all of this is that it is not simply stresses in the Gulf itself that are threatening stability, but a host of other Middle East flashpoints. These include ongoing conflicts in Syria and Yemen, and heightened tensions between Iran and a Sunni majority led by Saudi Arabia.

Then there is the drumbeat on Capitol Hill. Hawkish Republican lawmakers agitate for pre-emptive strikes against Iran in the mistaken belief such an exercise would be clinical and short-lived.

Further destabilisation of the entire region would result, and possibly all-out war.

The ICG is urging America to redouble its efforts to establish a dialogue with Iran to bring about a resumption of negotiations on a revised JCPOA. This would require Washington making a down payment in good faith by easing sanctions on Iran’s oil exports.

It is not clear the Trump administration would be willing or able to make these concessions.

Morrison could do worse than argue the case for “redo” of the JCPOA when he is in Washington next month on a state visit.

Tony Walker, Adjunct Professor, School of Communications, La Trobe University

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

Morrison looking at details for commitment to protect shipping

Michelle Grattan, University of Canberra

Scott Morrison has flagged the government is working with the United States and Britain on details for an Australian role in helping safeguard shipping passages in the Middle East.

Morrison told a news conference in Townsville on Thursday he had spoken to British Prime Minister Boris Johnson on Wednesday night and “indicated to him that we were looking very carefully at our participation in this initiative”.

Morrison stressed it would be a multinational operation.

This is not a unilateral initiative by any one country, and it is about safe shipping lanes, it is about deescalating tensions and making sure that the current situation does not worsen.

He said the government had not “made any decisions on this yet. We want to be fully satisfied about the operational arrangements that are in place”. It was very early days and it would be a while before things came together.

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In practice though, the government has obviously agreed in principle, subject to satisfactory arrangements being worked out. Its role is somewhat complicated, however, by the fact it does not have a ship in the region.

The US’s request for Australian assistance was discussed at the weekend AUSMIN talks.

Morrison said there were other countries which were in a similar position to Australia – “engaging before making any full decisions”.

He stressed the maritime issue “should be clearly divorced from the broader issues that relate to Iran and the JCPOA [Joint Comprehensive Plan of Action – the nuclear deal that the US pulled out of last year].

“That’s a separate issue. This is about safe shipping lanes and ensuring that we can restore at least some stability to what is a very unstable part of the world at the moment,” Morrison said.

“There has been a very disturbing series of events that we’ve seen in the Straits of Hormuz, and freedom of navigation and safe shipping lanes is very important to the global economy and that is a matter that is as important in that part of the world as it is in many other parts of the world.”

China hits back at Liberal chair of security committee

The Chinese authorities have accused Liberal MP Andrew Hastie of “Cold-War mentality and ideological bias”, after he drew on the example of France’s “catastrophic” failure to comprehend the threat of a rising Nazi Germany in an article warning about the dangers from a rising China.

Hastie, chair of the powerful parliamentary joint committee on intelligence and security, wrote in the Sydney Morning Herald:

The West once believed that economic liberalisation would naturally lead to democratisation in China. This was our Maginot Line. It would keep us safe, just as the French believed their series of steel and concrete forts would guard them against the German advance in 1940. But their thinking failed catastrophically. The French had failed to appreciate the evolution of mobile warfare. Like the French, Australia has failed to see how mobile our authoritarian neighbour has become.

Even worse, we ignore the role that ideology plays in China’s actions across the Indo-Pacific region. We keep using our own categories to understand its actions, such as its motivations for building ports and roads, rather than those used by the Chinese Communist Party.

The West has made this mistake before. Commentators once believed Stalin’s decisions were the rational actions of a realist great power.

Hastie referred to action Australia had taken such as foreign espionage legislation and more closely monitoring infrastructure.

But “right now our greatest vulnerability lies not in our infrastructure, but in our thinking. That intellectual failure makes us institutionally weak. If we don’t understand the challenge ahead for our civil society, in our parliaments, in our universities, in our private enterprises, in our charities — our little platoons — then choices will be made for us. Our sovereignty, our freedoms, will be diminished.”

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A spokesperson for the Chinese embassy said in a statement:

We strongly deplore the Australian federal MP Andrew Hastie’s rhetoric on “China threat” which lays bare his Cold-War mentality and ideological bias. It goes against the world trend of peace, cooperation and development. It is detrimental to China-Australian relations.

History has proven and will continue to prove that China’s peaceful development is an opportunity, not a threat to the world.

We urge certain Australian politicians to take off their “colored lens” and view China’s development path in an objective and rational way. They should make efforts to promote mutual trust between China and Australia, instead of doing the opposite.

Morrison played down the Hastie comments, noting he was a backbencher not a minister.

We will continue to work to have a cooperative arrangement with China. Of course, there is much to be gained from that relationship, particularly from the trade side, but let’s not forget that relationship is far broader than just the economic one.

But equally, our relationship with the United States is a very special one indeed and there is a deep connection on values and that’s of no surprise to anyone.

So we believe we can continue to manage these relationships together, but I don’t think anyone is in any way unaware of the challenges that present there.

Michelle Grattan, Professorial Fellow, University of Canberra

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.

Simon Tormey, Professor of Politics, University of Sydney

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