Boris Johnson currently finds himself in a difficult position of historic proportions after Jeremy Corbyn and fellow opposition leaders used one of the worst pieces of legislation in modern British history to prevent the Prime Minister from holding a snap election.
There are now only several opinions available for Johnson. The first (and my preferred method) would be to cancel the prorogation of parliament, inclusive of the conference season and to then use that time to attempt and secure a simple majority to overturn the Fixed Term Parliaments Act of 2011. If Johnson could accomplish this, he could then request an audience with Her Majesty The Queen after which parliament would be dissolved in preparation for a snap election.
The problem with this method however is that even though Johnson could quite possibly just about achieve the simple Parliamentary majority required to overturn the repugnant 2011 Act, given the current composition of and atmosphere in the House of Commons, this is not strictly guaranteed.
Moving on to one of Johnson’s other few remaining options, the Prime Minister could successfully negotiate a new so-called withdrawal agreement with the European Union but even if (and some says it’s a big if) he could do this, several more problems would immediately arise.
If such an agreement was not approved by Parliament, Johnson would be in the same position that he is in today, only with the added embarrassment of losing another important vote. Alternatively, even if Johnson’s would-be agreement passes, if Nigel Farage’s Brexit Party determined that such an agreement was little more than a re-heated version of Theresa May’s deplorable “surrender treaty”, the Brexit Party would challenge the Conservatives in every seat in the country during the next general election. As a result, the Conservatives could be in serious trouble if they deliver “Brino” (Brexit in name only) rather than Brexit as the Brexit Party remains a formidable electoral force in England and Wales.
Thus, with Boris Johnson ruling out both resignation and also ruling out asking the EU to extend the Brexit timetable, there is one final option available to the Prime Minister and one that he appears to have explicitly ‘ruled in’.
The UK Prime Minister has suggested that he could ignore the act of Parliament designed to force him to ask Brussels for an extension to the Brexit negotiating period, saying that he is only bound to ask for the extension “in theory” rather than in practice.
With this in mind, such a defiance of Parliament on the part of Johnson would represent a major test of the country’s constitution which could potentially result in a long term shift in the balance between Royal Prerogative and Parliamentary Supremacy.
According to the doctrine of Parliamentary Supremacy, there is no law making body in the land whose authority can overrule Parliament except for a future Parliament. That being said, the doctrine of Royal Prerogative allows the Monarch (in reality the government acting for the Monarch) to enact certain policies without the need to consult Parliament, let alone to receive specific legislation from Parliament.
One of the most visible areas in which Royal Prerogative takes precedent over Parliament is in the realm of foreign affairs. Whether making a foreign treaty, engaging in negotiations for a bilateral agreement with a foreign state or declaring a foreign war (to give but three major examples), Royal Prerogative continues to take precedence over Parliament.
And thus one comes to the constitutional matter of whether Johnson has a legal right to defy a law passed by Parliament which commands him to ask the EU for an extension to the negotiation period. The legal argument for Parliamentary Supremacy is quite straight forward: a piece of legislation passed by Parliament becomes a law that can only be overturned by a subsequent act of Parliament.
The argument in favour of Boris Johnson acting in the name of Royal Prerogative is far more elaborate. First of all, one of the reasons that Royal Prerogative has remained robust in the area of foreign affairs is because it involves the government working with events, institutions and people beyond the control of the British state. Foreign affairs is fluid ream and during times of crisis, this is particularly true.
Beyond this, one can consider the circumstances in which Royal Prerogative will trump Parliamentary Supremacy in the following way: An action that is singular and generally permanent will typically be executed under Royal Prerogative whilst a policy that is manifold and which requires continuous enforcement will be executed under a law created by an act of Parliament. For example, after a treaty to end a particular war is signed and its effects become demonstrable, one does not require the permanent enforcement of such a state of affairs. When for example the Treaty of Versailles ended the Great War, there was no need for Parliament to make a law prohibiting the fighting of the Great War – it had self-evidently been stopped. Alternatively, when Parliament makes a law mandating the payment of a new tax, specific mechanisms must be created to collect this new tax and punish those who do not pay the new tax. Such mechanisms will be continuous unless the tax is abolished by a future act of Parliament.
As such, according to this interpretation, the Prime Minister’s negotiations with the EU should be viewed no differently than any other matter of foreign dialogue/foreign negotiation in which the government invokes Royal Prerogative to get things done in real time.
According to this interpretation, Parliament overstepped its authority by attempting to dictate the terms of the government’s negotiations with a foreign entity and as such, Boris Johnson would have the right to continue his negotiations as he sees fit owing to the constitutional reality that Royal Prerogative remains the legal and prescriptive force which gives the government substantial leeway in such matters.
Beyond this, there is a further argument to be made in favour of Royal Prerogative. Because for decades, the governing bodies of the European Union have themselves taken a position of supremacy over the UK Parliament, it could be argued that in refusing to ask the EU for an extension, Boris Johnson will be using Royal Prerogative to restore Parliament’s future supremacy which since 1973 has been partly if not wholly superseded by the European Union’s authority.
Finally, because Johnson can rightly claim to be executing the will of the people by at long last implementing the terms of the 2016 Brexit referendum, Johnson could invoke this radical interpretation of Royal Prerogative which if found to be credible, is perhaps his strongest of all arguments because it is the simplest.
Unless an election is called prior to the end of October, Britain is in for a constitution crisis in one shape or form. Although the arguments that both sides will use are fairly easy to anticipate, the outcome will be far from predictable.