An out-of-control parliament is trashing our constitution

Discretion has been thrown to the winds. The ambition of Parliament to seize absolute power at the expense of the other governmental elements of the constitution – the Queen and the Executive – is now naked and unashamed. The dog’s breakfast called the Northern Ireland (Executive Formation) Bill is the ramshackle vehicle for parliamentarians’ power grab, an attempt to shred the democratic safeguards in our unwritten constitution to protect the public from just such a usurpation of authority.

The DUP has rightly commented on how little the Bill is concerned with Northern Ireland. Beyond anti-Brexit manipulations, it is startling how arbitrarily politicians who profess acute concern that the appearance of a solitary jobsworth with a clipboard at the Irish border could plunge the province into raging civil war have, with a snap of the fingers, imposed abortion and same-sex marriage, deeply controversial issues in that culture, on Northern Ireland.

Also instructive was the spectacle of the SNP, which for so long fetishized its abstention from voting on purely English matters, joining in that imposition by the imperial parliament upon the constitutionally devolved province. A party that aspires to independence for its own country refuses to respect even devolution in another nation of the United Kingdom.

Parliament is no longer passing legislation in the traditional sense: it is indulging in wish fulfilment of its collective prejudices, with negligible scrutiny and disregard for constitutional convention. This is being facilitated by Speaker Bercow, a revolutionary in the 17^th-century mould. The extravagant behaviour of MPs is epitomized by Rory Stewart’s threat, if parliament were prorogued, to convene a rival assembly at Methodist Central Hall. Why not at Wimbledon, now the championships are over – very appropriate for the Tennis Court Oath indispensable to such revolutions?

For the reality is that what we are witnessing at Westminster is a revolution, no less revolutionary for its non-violent character, so far. The tipping point in the French Revolution was not the storming of the Bastille but the surrender of Louis XVI when he feebly legitimized the Estates General’s conversion of itself into a National Assembly. Revolutions are made in such hot-air forums; the consequences only manifest themselves in the streets later.

The focal point of contention – as it was always going to be – is the right of Prorogation of Parliament. From the beginning it has been the nuclear option available to the Executive to prevent a feral Parliament from blocking Brexit, in defiance of a public vote. Since it is a Royal Prerogative Power, the prerogative is now under attack.

This subversive movement has been rumbling for some time – it is a hereditary obsession with the Benn dynasty as we have just seen with the amendment to the Northern Ireland bill. The prerogative was challenged in some respects by the Human Rights Act 1998, passed at the beginning of the premiership of Tony Blair (“Hey, look, I mean – this is a young country”) who rode roughshod over a constitution that had been constructed over a millennium.

Since then, parliamentary select committees have voiced meddling opinions but done little of substance. The Public Administration Select Committee published a paper entitled: “Taming the Prerogative: Strengthening Ministerial Accountability to Parliament”. Ministerial accountability is a necessary and desirable discipline in the public interest, but the provocative title betrayed the underlying agenda of enlarging the power of the House of Commons at the expense of the monarchy and the executive.

In the constitutional crisis that a parliament of entitled narcissists has forced upon this country by defying the democratic vote to leave the European Union, the Royal Prerogative is now centre-stage. So, it is imperative for us to understand what this arcane-sounding pillar of the constitution actually is. It is about a lot more than reserving to the Queen proprietorial rights to certain breeds of swans.

The prerogative is like a constitutional onion with several layers of authority. The more peripheral ones which occasionally impinge on everyday life are justiciable in the courts. Other powers may or may not be subject to such moderation. But the absolute core prerogative powers are non-justiciable because otherwise they would be constitutionally pointless.

The core power is that of dissolution and prorogation of parliament. If even the Supreme Court claimed a right to moderate that power it would itself be acting ultra-vires, provoking a constitutional crisis of unfathomable consequences. The power of dissolution was eroded by the Fixed-term Parliaments Act 2011 which even critics such as Ken Clarke have condemned. The Act was a violation of constitutional precedent and democratic safeguards. It should have been rejected at the time.

The constitutional abuse that has gained currency recently at Westminster is the weasel claim that “Parliament is sovereign.” That has never been the case. Sovereignty resides with “The Queen in Parliament” – a vitally different principle. It does not imply that public affairs are subject to the personal whim of the monarch; on the contrary, it embodies the principle that the ultimate fount of sovereignty, which pre-1688 was recognized as God, has since been held to reside in the will of the people.

That means more than the transient covenant at the ballot box between government and governed; it dictates that in any conflict of interests between a validly elected parliament and the majority of the nation, the sovereign public will must prevail. The ultimate guarantor of that sovereignty is the monarch, bringing parliament to heel if necessary through the exercise of the prerogative power in the public interest.

Even in the Middle Ages, across Christendom, there was a perception by the masses of society of the king as a protector against any excesses of the nobility. In Scotland, where the concept was more rapidly developed than in England, the notion of the Community of the Realm as the ultimate embodiment of sovereignty was close to the modern concept which MPs are currently attempting to destroy in their own interests, like mediaeval barons.

This confrontation has been provided for by our ancient constitution. There is a passage in the writings of A V Dicey that perfectly foresees and supplies a remedy for the threat the constitution faces today: in the event that “an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors… A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation.”

That is a perfect fit with today’s crisis. A vote by 17.4 million electors, defied by the House of Commons, is more than “fair reason to suppose that the opinion of the House is not the opinion of the electors”. Dicey, moreover, was making the case not simply for prorogation but the more drastic sanction of dissolution. Furthermore, he wrote this as justification for the monarch acting alone in the face of obstruction of the public will whereas, in the scenario dreaded by Remainers, the Queen would be acting on the advice of her prime minister.

If the courts were, by an exercise of judicial activism, to attempt to curb or eliminate the prerogative of prorogation, then the plague of revolutionary reconfiguration of the constitution would have spread from the legislature to the judiciary. Britain would be in a state of anarchy, with law made on the hoof by elites. The public reaction to such an aggression against our hard-won liberties would be, to say the least, unpredictable.

The crusaders against prorogation are dripping with hypocrisy. John Major, threatening litigation against the prerogative, was the last prime minister to use prorogation controversially, in 1997, to delay publication of a report on the cash for questions scandal. Gina Miller is fooling nobody with her pretence that her objective is not to “stop Brexit” when the dogs in the street know that is her motivation.

Remainer entitlement and hysteria has now reached a pitch where it threatens to shred the oldest and most freedom-respecting constitution in Europe. Yet, on Brexit, the government ultimately holds the whip hand because parliament cannot bind the EU nor can it force government to ask for a Brexit extension, since it is a foreign treaty negotiation; it would be a very Boris moment if we simply hit the buffers on 31 October and so passively left the EU.

The truly concerning aspect of the Brexit fury, however, is the damage that is being done to the whole constitutional fabric that underpins our existence as a free nation.