Stopping the Breaker of Conventions

The danger of a vote of no confidence made against the Government, which seems ever closer, is that the Government party will vote no confidence in itself, to achieve a two-thirds majority against itself, and run directly to a General Election after the leaving the European Union date. (Indeed a General election called from last week would happen after the EU leaving date, according to present Statute Law.) In this way, the opposition, rather than producing an interim Government to write the extension letter to the European Commission, would find itself and all MPs dissolved but leaving the Government under Johnson in place.

Whatever the opposition parties do, they need to keep in legislative place to check Johnson and his manoeuvres.

The other issue arising is the suggestion that, without a deal passed, the Government might opt to use emergency powers to thus both obey the law and leave the EU on 31st October - circumventing the Act of Parliament requiring the application for an extension on 19th October. This would surely be one for the Supreme Court - the unwarranted use of emergency powers, but an injunction granted first.

The allegations around Jennifer Arcuri - thus Johnson arrives at the Conservative Party conference with his otherwise backstage girlfriend - only support the matter that Johnson was and is unfit to be Prime Minister. The serious business is his breaking of conventions by powers given to a Prime Minister from the Monarch. That's what the unlawful proroguing was all about.

There is also political funding allegations from those who would benefit directly and financially from leaving on the 31st October. This would be present-day corruption.

Parliament must be present to check him, or a secure means found to remove him. He ought not to be there, and ought to be removed, but the issue is finding the legal means to remove him, and taking away these monarchical powers that need democratising.

Dangle the PM on a Political Piece of String

As I once discovered in a local land dispute, when a court rules the axe comes down. There are real winners and real losers.

The judgment of the Supreme Court is an axe that came down with a thud. It is reassuring too.

The The Inner House of the Scottish Court of Sessions had established the facts, so the only question (as in the English judgment) was whether the Court had any role to play at all. Once it did assert this, the result was likely to go against the Government.

Let's be clear. This is a matter about the Monarch power as held by the Prime Minister, and the Court referred to as far back as 1611 of the Court holding the King to law. Obviously, on this matter, 'The Glorious Revolution' - the removal of James II - was the definitive beginning of Constitutional Monarchy.

As I learnt from the advocacy of Aiden O'Neill, Parliament could not legislate proroguing into Statue Law (as has happened with calling a General Election) because it required the Monarch's consent to take it into a Bill for Parliament to debate and enact. The Monarch's consent means the Prime Minister's consent. Let's be clear: the Monarch is not some Constitutional guarantee, but just does as is told by the Prime Minister in Cabinet and in the person of the Prime Minister.

However, the Court rule is that the Monarch is under Law. Imagine it otherwise: not just that he could prorogue Parliament again, but that he could do anything where his powers derive from the Monarch.

So what is next. Truly, he should resign. Ordinarily, he should be forced into a General Election. But the latter dissolves Parliament, and the Government under him continues - changing the date of a General Election might be subject to a Supreme Court check but it might be a convention-breaking act that he succeeds in doing. Best then that, regarding Boris Johnson, being cornered and neutered, Parliament now does its work and makes sure the Government applies for the extension if there is no deal.

He may present a deal that Parliament rejects; Parliament then may have to reassert the necessity to apply for an extension. Did I hear that a member of the Cabinet thinks he ought to resign? Did another say he should change strategy fundamentally?

As for resignations, the Attorney General, Geoffrey Cox, ought to go, because he said such a prorogation was legal and the opposing view was 'political', and so should the Leader of the House, Jacob Rees-Mogg, who acted for the Government alone rather than represented Parliament to the Government. He took the trip to Balmoral for the Constitutional method of telling the Queen to sign the Order in Council.

Boris Johnson was, and is not, fit to be a Prime Minister. His remarks in New York indicate this, as he babbles on in a diversionary fashion. He is not Napoleon. His actions come under the Law in his use of Monarchic powers. He is unfit to govern by his very comments beyond the Court's judgment - he disagrees. Who cares whether he disagrees or not?

He should be told to resign, and he should, but if he doesn't he should be hung on a piece of string until the extension is secured. Then we have a General Election. Some will want a referendum first: would he offer one with a deal he brings back? That would be clever, but he is bombastic and his 'do or die' is likely to be 'die' for his actions.

Why the Legislators Could Not Take Over Proroguing

The answer to why the legislators did not overturn proroguing first before proroguing and then take time to make sure no deal happened has been given in the submission at the Supreme Court, by Aidan O'Neill QC.

He pointed out that a power that rests with the Monarch (and therefore with the Prime Minister) can be legislated against but only after the Monarch has agreed to give up the power. This means the Prime Minister, because the Monarch only acts on advice. So Boris Johnson would have refused to give up the power, and therefore Parliament could not have legislated to bring proroguing under Statute Law.

In the case of the Fixed-term Parliaments Act, the legislation was introduced by the Government and therefore the Prime Minister at the time will have 'advised' that the power was given up. Therefore the Monarch's power on that one was moved into Statute Law, and the Prime Minister lost the exclusive power (in the name of the Monarch) to call a General Election.

Perhaps the next Labour or Liberal Democrat government will bring proroguing under Statute Law and the operation of the legislature, although a difficulty here is that the ceremony is the Monarch inviting the House of Commons to the House of Lords for the proroguing ceremony to take place. It might be in legislation something for the House of Lords to do, but if it did not follow the Commons then the Commons might have the power to overrule it - according to such an Act of Parliament. Only suggesting!

Waiting and Moving - British Politics

Far be it from me to determine what the Supreme Court should think about proroguing Parliament. However, the Edinburgh Appeal Court finding was factually based, and so there are only two grounds that the Supreme Court can reverse its 'unlawful' finding: one is that the facts are wrong, and the other is the facts are right but it is political. But if the latter is the case, then what political means are there to reverse a decision that closes down the ability to resist proroguing?

We know that the monarch is not able to do anything other than what the Prime Minister demands, so the protection of conventions comes down to the courts and the law. The advice may well be to take proroguing into Statute Law, so that it cannot happen again, although the problem here is that the Monarch through the House of Lords invites the Commons to it for proroguing - how does that work if the House of Commons makes it subject to Statute Law?

While we wait the Liberal Democrats are at Conference, and its MP numbers are boosted by defections. I would suggest that one reason more ex-Tories (removed or fed up) might cross over is because they have failed to set up a (let's call it) National Conservative Party, to be a more moderate one than that which contains the European Research Group and is being misled by Boris Johnson and Dominic Cummings.

The situation now is equivalent of that of Robert Peel and the repeal of the Corn Laws. The Tories became the Conservative Party, and, for that matter, the Whigs became Liberals. The parties of the Monarch versus the Nobles evolved, which it was bound to do after James was removed and a different kind of monarchy was introduced - from Orange to Hanover and beyond. The parties were reforming for the new Middle Class (especially the Liberals; the Conservatives connected the landed and the workers until the Liberals radicalised somewhat). The Conservative Party today is overstretched between its pro-European socially concerned strand and its mainly English nationalist wing. Labour is still trying to manage its Social Democrat versus Socialist wings; at present Corbyn has put his ideology to one side to make a more across the parties effective opposition. But the Liberal Democrats are sniffing a pivotal role themselves, seeing a centre-radical position for electoral gain. If the four party system creates freak, random results, damaging the Tories and Labour, the Liberal Democrats may be able to get over those tipping points in constituencies and really build up the numbers. However, they have hoped before and been disappointed.

By the way, it has always made sense that the demand for a second referendum is a policy for opposition: if the Liberal Democrats ever won a General Election that is sufficient to revoke Article 50. It does not need a second vote when that is the second vote.

Johnson Found Out - Above His Abilities

Opposition MPs and parties, including those chomping at the bit for a General Election are holding off. It is the correct procedure for maximum effect.

Boris Johnson has shown that the MPs must not trust him, and the worst move now would be to pass a law to insist on seeking an extension, or having a deal, or having back the May deal via the Kinnock amendment, and then leave it in Johnson's and Cummings' hands to do as they wish.

Proroguing Parliament as Johnson has forced was for a long time regarding scrutiny but a short time regarding extra waiting for a General Election.

(It shows that proroguing ought to come under Statute Law and not Monarchic power as has happened with calling a General Election.)

The upshot is that Johnson has prorogued against himself. Unable to pass laws by his own actions, the date will approach in which he must ask for an extension to stay in the European Union, and enact it, or have a deal ready.

My guess is that he will never have proposals acceptable to the European Union regarding replacing the backstop, and that, as a last ditch measure, he will table the Theresa May deal off the shelf. It may even approach a majority to get it through. The Kinnock amendment means that Parliament must discuss it as according to concessions offered by the government after the Labour and Conservative talks.

(Originally, the government failed to provide tellers so that there would be no measure of the number of Labour MPs voting for the Kinnock amendment that would then be a competitor to the government's approach of going for a deal, or no deal, without the backstop. The price of this was the amendment succeeding by failing to provide the tellers. But it may be that the government uses this in having a deal, any deal, to remove us from the European Union.)

BUT this project has been all about protecting the Conservative Party from the hard-right Europhobic wing, and May's deal will betray that wing and can only get through with Labour votes. Labour of course won't support it, and this time will want a General Election. The same will be so for the Liberal Democrats, Greens, Plaid Cymru and the all-important Scottish National Party.

Labour must wait, because at the moment Labour is weak, but waiting until beyond the end of October weakens the Conservatives more, because of its internal betrayal and a recovery then in the Brexit Party. The weakness of the Conservatives will also help the SNP be sure they pick off the Tory MPs in Scotland.

So until then it is vital to keep Johnson weak. The Cabinet will soon become frustrated.

If he does go for a General Election by votes, until he prorogues Parliament, if it looks to be successful then make sure it is successful by less than two thirds so that an emergency government can take the reins and actually deliver the delay request ahead of the General Election.

Something else. It was often said - and virtually by Johnson himself before Theresa May was selected to be Prime Minister - that the office of Prime Minister was above Johnson's abilities. This looks to be the case. He does not command detail - at least Theresa May understood her brief - and he just blusters and makes it up as he goes along. He has been found out. The notion that he had the charisma to communicate - and he had a good run prior to scrutiny - has fallen flat, just as his ability in the job has been shown to be inadequate. The Cabinet will surely now overcome the 'reign of terror', which was only to cover up for Johnson's inabilities by Dominic Cummings driving the ship, and so it won't be long before Johnson is gone. He may even realise it himself and go, to be replaced by a caretaker government, to secure the extension and then go to the country.

I would not be surprised if he then changes his used name back to Alexander.

Prorogue Him from Calling an Election

Boris Johnson likes playing games, but it would be a laugh a minute if proroguing Parliament denied him the opportunity to call a General Election, given the fortunate situation that calling an election is now under Statute Law. This is what needs to happen with proroguing too, indeed any monarchy based law.

Closing Parliament is serious when it needs to scrutinise the exit goings on of the Government, although we realise there are no proposals going to the European Union. At the same time, it is not a long period to wait before having a General Election.

The only other way to do it would be via a temporary government on the fortnight basis of choosing a person who could command the House of Commons - but this is frustrated by the proroguing, unless, of course, someone is ready to receive a vote of confidence to then kick out Johnson. Trouble is, on such a vote of no confidence to kick off the process, Johnson could instruct his own MPs to vote no confidence in his own government - to go straight to a General Election leaving him in charge and able to change the date of a General Election - breaking another convention.

He cannot be left in charge when Parliament is unable to sit. This is what would happen, in that we don't always have Parliament but we always have a Government. Thus he should be denied a General Election while Parliament is prorogued - hard luck mate. It's your bed so lie on it, as you lie about much else.

Conventions and Removal

The idea that proroguing Parliament is 'normal' as this government has done it is simply not credulous. It is an anti-democratic move, and it should be no surprise that the government is also considering not handing legislation passed by Parliament to the Monarch to sign into law.

This all blows the notion that somehow the Monarch is a protector of the unwritten constitution into the wind. The Monarch only ever does what the Prime Minister says, and this inheritance gives a Prime Minister enormous power. What usually stops a Prime Minister from abuse of power is convention.

There are two identified types of convention. One is ordinary and the other is embedded. The difference, Professor Vernon Bogdanor has told us, has never been defined. Nevertheless, proroguing Parliament in this devious manner is a convention, and likely to be regarded as politically unacceptable but legal. For a government to fail to send legislation to be signed by the monarch would flout an embedded convention, and the Supreme Court would stop it.

In any case, should the Fixed-term Parliaments Act run out of time in terms of having an emergency government (say headed by Harriet Harman or Yvette Cooper) because of proroguing, and/ or Johnson in power, then Johnson may call a General Election for after October 31st.

In this case there are two options. One is that noting the voting the European Union unilaterally extends Article 50 and then, to keep trade and people flowing, a new government legislates retrospectively. Alternatively a new government uses Article 49 and legislates retrospectively.

Being anti-democratic in a democracy run by conventions is a dangerous move. I think this is enough to have its perpetrator dismissed from office by anyone of liberal democratic sympathy.