Brexit, the Executive and Parliament: A response to John Finnis

In a recent article in the Telegraph, Professor John Finnis advances two quite astonishing arguments. First, he advocates proroguing Parliament until after 12 April (the day on which the UK is scheduled to leave the EU) in order to ‘terminate parliamentary debate’ on Brexit. (Prorogation is the ending of a parliamentary session pending the next State Opening of Parliament; it is a step taken by the Queen on the advice of the Privy Council and thus, in effect, the Government.) Second, he contends that if, contrary to his first argument, Parliament were to remain in session and generate Brexit-related legislation with which the Government disagreed, it would be ‘proper and appropriate’ for the Government to block such legislation by advising the Queen to withhold Royal Assent. That these arguments are misconceived will, to most people, seem so obvious that their refutation ought to be wholly unnecessary. But the very fact that such arguments have been aired in a national newspaper — and by an eminent legal scholar — suggests otherwise. The purpose of this post is therefore to state the obvious, by showing why Finnis’s analysis is fundamentally flawed. 

Finnis’s two central arguments — concerning Royal Assent and the prorogation of Parliament — are each devices that are nakedly invoked so as to stop Parliament from doing things with which the Government disagrees, albeit that they would secure this objective in different ways. Whereas advising against Royal Assent would (if such advice were to be accepted by the Queen) block legislation that was not to the Government’s liking, prorogation would prevent the House of Commons and the House of Lords from passing such legislation in the first place. However, these differences notwithstanding, these two techniques are united by their objective of equipping the Government to ensure that it governs on its own terms and that Parliament is denied the opportunity to stop it from doing so. Such an analysis views the British constitution through the lens of executive authority to such an extent that the resulting image is little more than a caricature in which other seats of authority — in this instance, the legislature — amount to mere inconveniences. Put together with Finnis’s stance on judicial power — which he has articulated at length for the Judicial Power Project — and it hard to interpret his position as anything other than an argument for executive hegemony.

If Finnis was merely (a word that, in this context, I use advisedly) advocating the suspension of representative democracy in order to ensure the implementation of the (in his view) paramount outcome of the 2016 referendum, then that would be one thing: his stance could then straightforwardly be exposed as an argument for unconstitutional action on the part of the Government. In fact, however, Finnis maintains that what he advocates would be ‘wholly legitimate as a matter of constitutional principle’, and then doubles down by arguing that the holding of indicative votes in the House of Commons by means of suspending normal procedural rules is nothing less than a ‘constitutional monstrosity’. Finnis’s argument thus acquires an almost through-the-looking-glass quality: that which would be regarded by most people as flagrantly unconstitutional is characterised as orthodoxy, while the wholly legitimate is castigated as nothing less than heretical.

What might explain this arresting analysis? The answer — or at least the root of the problem — may lie in a conflation of (on the one hand) certain empirical facts about how the constitution normally operates with (on the other hand) the bedrock of constitutional principle according to which the legitimacy of governmental and other official action falls to be tested. It is a trap into which many others have recently fallen, a case in point being the recent fulminations of Bill Cash MP about the ‘constitutional revolution’ that (in his view) the indicative votes procedure evidences.

An assumption appears to be at work here to the effect that what normally happens is decisive of that which is constitutional, and that, by extension, deviation from normality implies unconstitutionality. But this does not follow. The mere fact that the Government normally exercises a high degree of control over parliamentary business does not make it constitutionally improper for Parliament to insist upon deviation from that norm in order to ‘take control’ of the Brexit process. Just because Parliament is generally (at least to an extent) beholden to the Executive does not make it improper for Parliament to assert itself when, as now, circumstances and parliamentary arithmetic permit. The procedural rules that have been departed from so as to enable the indicative votes process to run are Parliament’s procedural rules. And, being the master of its own procedure, Parliament is entirely free to suspend, amend or rescind those rules. That it is unusual for it to do so does not make it unconstitutional.

Ultimately, Finnis’s analysis appears to rest on a misplaced assumption about the very nature of the British constitution. In particular, he appears to suppose that it is the Executive which — as a matter of constitutional principle, as distinct from usual practice — is the primary constitutional actor. Thus he refers to the prospect of Parliament ‘usurp[ing]’ the ‘Government’s role in managing withdrawal’. This implies that, for Finnis, the Government has a given and inherent role in respect of which Parliament is no more than an unwelcome interloper. Thus Finnis suggests that it would amount to a usurpation of the Executive’s role if Parliament were to enact legislation ‘imposing statutory control of our dealings with the EU’. But what on earth would be constitutionally objectionable about this? The enactment of such legislation would entail Parliament doing nothing more than discharging one of its most basic constitutional functions: namely, determining the legal parameters within which the Executive branch is permitted to operate. The fact that Parliament extended an imprudent degree of latitude to the Government by failing to attach conditions when permitting Article 50 to be triggered does not prevent Parliament from insisting (albeit very late in the day) upon a greater degree of control now. Far less does it make it a ‘constitutional monstrosity’ for Parliament to adapt its own procedures to that end.

The political circumstances in which the UK finds itself as it grapples with the process of leaving the EU are so unusual that the extraordinary is becoming — or risks becoming perceived as — mundane. The breakdown of collective responsibility and the repeated defeat of the Government in parliamentary votes on its flagship policy are but two illustrations of this. But even in this context, certain propositions bring us up short — or at least ought to. Among such propositions are the suggestions that it would be constitutionally legitimate for the Government to neutralise Parliament by getting the Queen to veto legislation or by proroguing Parliament so as to terminate debate about Brexit, and thereby suspending representative democracy. Such suggestions misunderstand the very nature of the British constitution and, in particular, the place of the Executive within it.

One of the principal claims made by those who argued in favour of Brexit was that leaving the EU would facilitate a restoration of parliamentary sovereignty (the questionable assumption being that membership of the EU was incompatible with that principle). Against this background, the fact that it is now being suggested that Brexit should be secured by suspending Parliament or ignoring legislation approved by it beggars belief. In truth, it is those suggestions, as distinct from Parliament’s entirely legitimate decision to undertake indicative votes, that represent the real ‘constitutional monstrosity’.

I am grateful to David Howarth for his comments on an earlier draft of this piece. The usual disclaimer applies.