In a healthy democracy this is not how parliament and the government should interactby Thomas Poole / October 18, 2019 / Leave a comment
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.…