The constitutional strangeness of the Benn Act

The Benn Act has framed what might turn out to be the Brexit endgame (at least the end of its first phase). The Act requires the prime minister to ask the EU for an extension to the negotiating period on 31st October provided that MPs haven’t approved a deal in a meaningful vote, or approved leaving the EU without a deal by 19th October. It is a strange beast. Not because it requires the government to act in certain ways. Most legislation can be seen as doing something similar. Or even that it does so in the area of foreign relations. Though still dominated by the executive, parliament is no stranger to the field.

The Benn Act is strange ultimately because it is an expression of disharmony. Functioning constitutions find ways of producing law out of basic disagreement. Democratic constitutions do it through processes of deliberation and debate within, between and outside institutions. Though our disagreements probably continue, the law asks us to put those disagreements to one side, if only for the purposes of living together. Legislation assumes the good faith of those it addresses. It knows that we are not angels but typically speaks to our reason. It realises that we are not always to be trusted and yet entrusts us with duties and responsibilities.

The idiosyncrasies of the Benn Act can be seen more clearly in this light. The Act advertises the apparently irresolvable nature of the conflict between the law-maker (parliament) and its primary agent (government). It also and more profoundly amounts to a statutory expression of bad faith. It assumes the opposite of what we want law to assume. The agent it addresses—the government—is taken as untrustworthy, incapable of exercising powers in what the law-maker regards as a responsible manner.

The political explanation of the Benn Act is familiar: the trigger a precipitous prorogation of parliament seen by opponents as devious and subsequently ruled unlawful by the Supreme Court; the context the loss of a Commons majority, where the Fixed-term Parliaments Act 2011 prevents the prime minister from simply dissolving parliament and calling a general election.

But we might also consider a constitutional explanation. For whatever happens with Brexit, deal or no deal, we need to renew the structures of our political constitution. We might note the prominent role prerogative has played in Brexit constitutional politics. Prerogative essentially means the power of the executive to act on its own initiative, without legislative approval. Unsurprisingly perhaps, given its origins in the lawful power to command, prerogative is the area where the fabric of the constitution can wear particularly thin. Certainly it has been the source of power which has given rise to more constitutional disputes in British domestic and imperial history than any other. Precisely because it retains something of the structure of command, the exercise of prerogative can put intense pressure on the relationship of trust, vital for good government, between ruler and ruled.

Prerogative has featured in Brexit litigation but also in wider discussions on the relationship between government and parliament. In that context, it is sometimes used as a code word to express the idea that the executive should have a free hand in relation to parliament and/or the law. Respectable names have aligned themselves to the suggestion that the Benn Act in particular can be ignored by government, one historian even invoking the names of figures such as Gandhi as authority for the proposition.

The position of this school is not just unlawful—the power to suspend the law was outlawed by one of our foundational documents, the Bill of Rights 1689. Worse, it is awful. At best, it hopes—surely naively—that the use of a suspending power can somehow be confined to Brexit and not serve as a future precedent. At worst, its advocacy of a leader switching on and off the laws when the “will of the people” requires it is expressive of an unvarnished form of authoritarian populism.

The idea of a decisive leader operating in some respects beyond the reach of law is in vogue elsewhere. As such, though thoroughly un-British, it is unlikely to disappear with the conclusion of Brexit’s first phase.

What has gone largely unnoticed so far is the extent to which this idea trades on a parallel understanding of the executive in foreign relations. The favoured image here is the executive as swashbuckling agent “doing deals” in a space all but unconstrained by law. This picture drastically understates the legal, diplomatic and administrative complexity of the environment in which a modern state operates.

This idea of the executive operating externally, fallacy though it is, has seeped into domestic constitutional thought. Foreign policy unilateralism finds a bedfellow in constitutional populism. In both, power is preferably channelled directly by leaders unconstrained if need be by other institutions or by law.

This explanation helps us to see the Benn Act, for all its special qualities, as emblematic of this particular constitutional era. It sits at the intersection of a number of constitutional fault lines: between prerogative and law (or executive discretion and institutional restraint); and between domestic and foreign (or inward- and external-facing parts of the constitution). Neither of these are remotely new, though Brexit has asked new questions about their configuration. What is distinctive is the presence of a third fault line, a consequence of the Brexit referendum, between parliamentary and plebiscitary democracy. This really puts the cat among the pigeons. It disturbs the more comfortable stories we tell ourselves about parliament’s centrality to political life, problematising previously held assumptions about the constitutional balance of power between state institutions.

This is a conversation too important to be left to the professionals. While Brexit has unloosed some topsy-turvy arguments, it has also revealed the importance of the constitutional framework in which political decisions are made, and educated us about the nature, both esoteric and essential, of arguments made about that framework. Reflecting on that process, one thing is clear. Functioning constitutions are not just a ragbag of rules, practices and attendant values. They also have a distinctive sociology, requiring us to take a stake in not just the laws and policies we want but also the constitutional frame in which those laws and policies are decided upon. The new deal we now most need is with ourselves.