Yesterday evening, Boris Johnson lost even the shadow of a majority. He may stagger through the next few days, till the prorogation takes effect. During this time, he may get his friends in the Lords to talk out the Bill forcing another delay to Brexit. But the prorogation offers only temporary relief. It will end. He will then have no majority to pass any deal he makes with the European Commission, and no majority for making any laws to deal with the effects of a No-Deal Brexit.
Until 2011, the obvious answer would have been a dissolution. Given the actual and prospective state of public opinion, Theresa May herself might struggle to win less than a working majority. With Boris Johnson in charge of the campaign, we could expect the Opposition to be crushed.
The problem is the Fixed Term Parliament Act 2011. This requires a two-thirds majority in the Commons for an early election. .After two years of demanding one, the opposition parties have suddenly gone soft on the idea of letting us decide who ought to be in charge. They have looked at the opinion polls, and are now looking forward to a vote of no confidence, after which they can spend a fortnight stitching together a Grand Coalition of the Losers to stop Brexit. If they pass their vote but fail to agree, there must then be an election. But they might agree and form their government. How long this would last is anyone’s guess. We can be sure, though, that there would be no Brexit this year. There might be none ever. That is what they want.
The consensus is that the Government is trapped in an iron vice that will now be tightened till it cracks. The truth, however, is that this vice is less of iron than of hot air.
The Civil Contingencies Act 2004 is a constitutional outrage. It allows a government to declare an emergency, and then to rule by decree. It should never have been made. But it was made; and it can now be used as an instrument of liberation.
The Act defines “emergency” as just about anything the authorities may dislike. One possible definition is “an event or situation which threatens serious damage to human welfare in a place in the United Kingdom.” (s.1(1)) This sounds a promising excuse. It seems to cover what the Opposition claims would be the effect of a No-Deal Brexit.
Triggering the Act requires no more than “a senior Minister of the Crown” – that is, Boris Johnson – to announce an Emergency. This done, he can make, alter or suspend almost any law he likes. (s.22) He can do this for a period of thirty days. (s.26) All he has to do is preface his decree with a statement that he “is satisfied that the regulations contain only provision which is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made.” (s.20(5)(b)(ii))
He cannot change the Act itself, or the Human Rights Act. He cannot set up concentration camps for his opponents, or put them before a firing squad. But the Fixed Term Parliament Act is fair game. He could suspend that. Then he could dissolve Parliament in the traditional way.
He must, “as soon as is reasonably practicable,” lay his decrees before Parliament. (s.27(1)(a)) No doubt, the Parliament we have would punish him with an Act of Attainder. But this Parliament would no sooner reassemble after the prorogation than it would be dissolved. The Speaker would barely have time to open his mouth. Assuming the general election went as hoped, the next Parliament would not be inclined to dispute the circumstances of its birth.
All the opposition parties would go screaming mad. But, as said, we are not talking about concentration camps and firing squads. The only use of the Emergency would be to give a voice to the people. Who could legitimately deny that? As for sharp practice in general, the opposition parties have spent this year turning the Constitution upside down. Who could complain if the Government now joined in the fun?
One of the first laws of politics is never to give yourself more power than you would like the other side to have. Labour broke this rule in 2004, when it passed the Civil Contingencies Act. Well, life is full of ironies. The Act was passed to keep us in our place. What joy if its first and preferably only use were to wipe the smiles presently glued to Labour faces.
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