Forcing through no deal without an election would be a constitutional outrage

We all know that the British constitution is unwritten. Like much that we know this is not exactly true. It would be more accurate to say that the writings are scattered. There are a few fundamental documents. One is the 1707 Treaty of Union between England and Scotland. Others pre-date that Treaty and were carried over into the new United Kingdom. The 1689 Bill of Rights, for instance, provided for the independence of the judiciary; judges could no longer be removed at His Majesty’s pleasure. The Act of Settlement of 1701 ensured that the Monarch must be a Protestant. Recently we have had Jacob Rees-Mogg asserting – if I read him right – that membership of the European Union which grants primacy in certain areas to European Law, with matters to be determined by the European Court of Justice, is unlawful because it contravenes the 1533 Act for Restraint of Appeals, which prohibited appeals to any foreign jurisdiction (and especially to the Bishop of Rome).

If I read Rees-Mogg right, he is wrong, for it is one of the salient features of our constitution that Acts of Parliament may be repealed or simply superseded by later ones. Consequently, it may be held that this Act was nullified by the European Communities Act of 1973. Moreover, we have found it necessary or convenient to accept other international jurisdictions established by Treaties we have signed.

Much of what we accept as constitutional is determined by Acts of Parliament, much, perhaps more, by precedent and convention. It is, for instance, precedent and convention, developed and accepted over the centuries, which determine the relationship between Crown and Parliament, the Executive and the Legislature. If this relationship is complicated – more complicated than the comparable relationship between President and Congress in the United States – this is because the Executive and Legislature are not distinct here, since members of the Executive (the Ministers of the Crown) are also Members of Parliament. Only in exceptional circumstances, and then only for a brief duration, is it permissible for a Minister of the Crown not to be a member of either the House of Commons or the House of Lords. There was such a case for a few weeks in 1963. The Earl of Home became Prime Minster when Harold Macmillan resigned. He then, after forming his Government, renounced his peerage, and stood for election to the Commons in a convenient bye-election. He won that election and returned to the Commons as Sir Alec Douglas-Home. If, however, he had failed to win that bye-election, he would surely have had to resign his office.

Now, in this time of uncertainty occasioned by Brexit, the relationship between the Executive and the House of Commons is strained. The House of Commons may pass a Motion of No Confidence in the Government. Some say that this would require the Prime Minister to resign. Others assert that he need not do so, but may press on with his determination to leave the European Union on October 31. There is even talk of using the Royal Prerogative to prorogue – which is to say, temporarily suspend – Parliament in order to do so.

The situation is murky. Nobody doubts that a Government cannot survive long unless it can command the support of a majority in the House of Commons. But for how long? Normally such a majority is stable. In general this has been assured by the working of the Party system. But what happens if the nominal majority is tiny and a number of MPs belonging to the Prime Minister’s Party have no confidence in him? What happens if, on a key issue, a majority of the House of Commons is against him? What then are the precedents?

Given the constitutional importance of the respect due to precedent and convention, this is a serious question. In the coming weeks it may be an urgent one.

Seeking a precedent I have been looking back, back indeed to the time when the King’s Government was the King’s Government in political reality, not merely, as it is now, in name.

In 1782 George III was still determined to continue the war against the rebel American colonies. There was however no longer a majority in the House of Commons for this. Accordingly his Prime Minister Lord North, who, as Richard Pares remarked in George III and the Politicians, “certainly had not passed as an opponent of royal power,” reminded the King that his predecessors had sometimes sacrificed “their private wishes and even their opinions to the preservation of public order, and the prevention of those terrible mischiefs, which are the natural consequences of the clashing of two branches of the sovereign power in the State. Your majesty has graciously and steadily supported the servants you approve, as long as they could be supported: Your Majesty has firmly and resolutely maintained what appeared to you essential to the welfare and dignity of this country, as long as this country itself thought proper to maintain it. The Parliament have altered their sentiments, and as their sentiments whether just or erroneous, must ultimately prevail, Your Majesty having persevered, as long as possible, in what you thought right, can lose no honour if you yield at length, as some of the most renowned and most glorious of your predecessors have done, to the opinion and wishes of the House of Commons.”

“Many people of that age,” Pares remarked, “would have considered this to be the pure milk of the Revolution gospel; they would only have been surprised at finding it in the mouth of Lord North.” He added in a footnote, however, that is was not really surprising: “Lord North was, above all, a House of Commons man”* – not something one could say of Boris Johnson.

Pares, an eminently fair historian, did add that North’s argument “had never been expressed in any document of constitutional validity, therefore it had no clear authority. Moreover, it was one-sided: it assumed there was nothing which the king could not, in the last resort, be called upon to give up  at the wish of the parliament; no real balance of power between executive and legislature, and (as North himself was to show by his conduct within a year) no holds barred in the game of getting up an overwhelming parliamentary combination to force the hand of the king…”

Now 1782 is of course a long time ago. Much has changed since then. In particular the development of the Party System meant that throughout the twentieth century there was indeed no real balance between executive and legislature. A Government with a majority, even a small one, could do more or less what it chose. Occasions when the will of the House of Commons seemed to be ranged against the Government of the day were rare. One such was the Norway debate in May 1940. Though Neville Chamberlain still had a majority then, so many members of his party voted against him that he concluded that his Government no longer had the support of the House of Commons and that a Government of national unity must be formed. When it was clear that he was not acceptable as its leader, he resigned. In general however the House of Commons has been subservient to the Government of the day, certainly as long as the House was composed almost wholly of members of the two dominant parties, the Conservatives and Labour. The duopoly has weakened and the House of Commons is now less easily managed. May was unable to get her Withdrawal Bill through the Commons and resigned. Like Chamberlain in 1940 she accepted that she had lost the support of the House.

We don’t yet know whether Johnson will succeed where she failed. We don’t even know what measure he will invite the Commons to support. Indeed we don’t know whether he will submit a new Brexit proposal to the Commons or whether he will seek to leave the EU without a deal and without seeking the approval of the House.

It seems likely that there is no majority in the Commons for a no deal Brexit, just as in 1782 there was no longer a Commons majority for the continued prosecution of the American War. George III reluctantly accepted Lord North’s argument that “the sentiments of the parliament, whether erroneous or right, must ultimately prevail” though he did so only after considering, but rejecting, abdication. Will Johnson do likewise?

Probably not, for he bases his authority on the referendum of 2016 and the majority for Leave that was then expressed: the sovereignty of the People trumps the sovereignty of Parliament. This is a tenable argument but not necessarily a cogent one.

Here again one might turn to Lord North’s letter: “Your Majesty has firmly and resolutely maintained what appeared to you essential to the welfare and dignity of this country, as long as this country itself thought proper to maintain it”, but opinion, Lord North implied, has changed. The American war had once been popular; it no longer was.

In reply Johnson might argue that Lord North’s understanding of “the country” was different from our understanding of it today. For Lord North “the country” was the political body, the property-owners, and their will was expressed by the House of Commons. Our understanding of “the country” has been enlarged. It isn’t restricted to the political nation. It now means the People whose will has been expressed in the Referendum. Democracy has replaced an oligarchy.

This is a fair argument and a good one, but it is not necessarily compelling. Lord North’s argument still holds good. Sentiments, by which one may take him to have meant opinions, may alter. The “country” was once in favour of the American war; it no longer is. Therefore the king – the executive – must yield to this changed opinion.

Of course one doesn’t know whether opinion on Brexit has changed. We do know that when the electorate voted by a rather narrow margin, 52-48, for Leave in the referendum of 2016, there was no clear description of the form Brexit would take. When she became Prime Minister May said “Brexit means Brexit”. Yet few had any idea of just what she meant by Brexit. Confusion followed, and confusion still reigns.

Now May’s successor appears uninterested in further negotiations with the EU. This may be a bluff. He may hope that his refusal to engage in a new round of negotiations will so alarm the EU that it will come to him with a new offer. Perhaps it will. Perhaps it won’t. If, however, there is no move from the EU, Johnson seems happy to leave without a deal.

This brings one back to Lord North. We know there is no majority in the Commons for a no deal Brexit. So will Parliament’s sentiments ultimately prevail? Johnson may turn to the Country, but its sentiments are unknown. There may be a popular majority for a no deal Brexit or there may not. We don’t know, for the question has never been put to the electorate.

It is all murky. One thing, however, is clear. What Lord North called “terrible mischiefs” are “the natural consequence of the clashing of two branches of the sovereign power in the State”. One must give way. Either the Executive must yield to the legislature, as George III reluctantly did, or the House of Commons must yield to the Prime Minister.

Otherwise some may conclude that the only way out is to have a new House of Commons which would provide a majority for this Prime Minister or for another one. Calling an election would surely require even this Government to apply to the EU for another extension, an application that would only, one assumes, be granted on the clear understanding that it was the last.

*
Lord North’s title was a courtesy one. He was the eldest son of the Earl of Guilford. So he was able to sit in the Commons till he went to the House of Lords on his father’s death in 1790. Whatever his deficiencies as Prime Minister, he managed the Commons skilfully. Indeed May might have been more successful if she had had a Leader of the House as adroit as Lord North.