Measures can be taken to prevent the inconvenient early election they fearby Jolyon Maugham / September 25, 2019 / Leave a comment
Bad enough for a prime minister unlawfully to suspend parliament at a moment of acute national crisis. But now a series of attacks, including from the prime minister’s office and the Lord President of the Privy Council, on the rule of law.
These are already extraordinary times. And who of us can say with confidence that we will not see worse? The last few years represent a never-ending succession of constitutional “hold my beer” moments.
How do we stem—or even reverse—the damage our constitution is sustaining? Yesterday’s Supreme Court decision is what it is, but a prime minister willing to shrug off the political cost of legal defeats can continue to suspend parliament at will and ministers have refused to rule out doing so.
How can MPs scrutinise when the scrutiny can be ended if ever it becomes uncomfortable? And how can MPs legislate to remove the power to prorogue from the prime minister if he can defeat that legislation by, yes, suspending parliament?
The unadorned truth is that, if MPs are to fulfil their democratic obligations, there is no alternative to replacing the prime minister. MPs know this—but what has held them back is what they perceive to be the risks.
Labour’s position is that Jeremy Corbyn, as leader of the Opposition, must have the first attempt at replacing Boris Johnson. But if, because of a lack of cross-party support, he failed, what then? In that world Labour might contemplate an alternative, but, if none could be found within 14 days the Fixed-term Parliaments Act 2011 (FTPA) would trigger a general election and the dissolution of parliament at a very inconvenient moment.
That, at least, has been the thinking. That is the risk that has held MPs back from making the attempt. But is it right?
Legal advice from a leading constitutional law QC, Helen Mountfield, tells us that a vote under the FTPA is not a necessary precondition to the replacement of the existing prime minister with another. There are other mechanisms for his replacement that do not carry with them the risk of a dissolution.
The advice reads: “The House of Commons has more than one mechanism available to it by which it could identify an individual in whom it had confidence and communicate that view to the Queen… Those mechanisms…