People are shocked that British Prime Minister Boris Johnson is trying to prorogue Parliament. Months late and many pounds short, I have to say. Where were they when Theresa May shook off a crushing confidence vote defeat and kept Parliament sitting for the longest session ever in order to sneer at it?
Parliamentary institutions are apparently confusing—to those who don’t live under them, to those who do, and increasingly to those who work in them. And I grant that things like the throne speech can seem absurd, with its “Gentleman Usher of the Black Rod” door-knocking and the prime minister doing the ventriloquism thing with the Queen or governor-general. But behind the ritual is deep meaning we need to hold onto or, increasingly, recapture.
Most of us now are instinctively American on constitutional matters, expecting a written constitution giving the judiciary power to strike down laws while placing an extraordinary amount of faith in an elected chief executive independent of the legislature. As a result, we don’t quite know what parliaments are for.
The short answer is that they make laws. All governments must in practice make rules, enforce rules, and settle arguments about rules. It doesn’t matter whether they do it well or badly, democratically or dictatorially, discretely or in a big stew. All three are necessary. And rational and orderly systems separate them into a legislature, executive, and judiciary.
Controlling the Purse Strings
So let’s talk about Parliament, starting with this strange word “prorogue.” Aren’t we all anti-rogue? But it’s the technical term for when legislature gets up and goes away for a while but there’s no election and eventually the same Parliament with the same members come back. (Congress does it, too.)Why does it matter? Because the long answer to what Parliaments are for is that the only branch of government we elect in Canada, or Britain, exists to keep the executive under control so it won’t take away our money and our freedom in pursuit of its grand schemes. We increasingly seem to think we elect our prime ministers, or partisan majorities. But we don’t.
In both Canada and Britain, the only people we elect out of all those with power over us, including judges, bureaucrats, and cabinet ministers, is individual legislators. Which is why, from 1400 on, English parliaments insisted that they would not grant the king (then Henry IV) money until he had responded satisfactorily to their grievances.
For over half a millennium, legislators have been controlling “the government” on behalf of the citizens by yanking on the purse strings. It’s their main purpose. Sure, they pass laws that let the executive branch make war, police crime, build social housing or whatever it wants to do on an ongoing basis. But as the perceptive Swiss observer Jean-Louis de Lolme wrote in the late 18th century, the executive is like a ship magnificently furnished, from which the legislature may at any time draw off the water by refusing the annual “supply” of money to carry out its policies.
Institutional Safeguards
If we seem far from Brexit, be patient. A large number of institutional safeguards have developed for the legislature over the years to compensate for its inherent disadvantages, including sitting only part-time, whereas the executive is always in session. (And the bigger “government” has become in the last 150 years the more serious the imbalance because what has grown is executive activity and ambition while Canadian and British MPs remain pitifully understaffed.) And not only are legislators away from their desks between parliamentary “sessions” while bureaucracies grind on, but once Parliament is “dissolved” in the runup to an election there are literally no legislators in office, whereas there is still an executive branch, from bureaucrats to police and soldiers to the cabinet and first minister.By increasingly inflexible convention, the prime minister and all other ministers must be sitting legislators. But the fact that we still have a prime minister when we have no Parliament is an important reminder that they do not serve in the executive branch by virtue of being legislators. On the contrary, confusing the two roles is perilous, to the point that America’s Founding Fathers, in 1789, made a constitutional rule that legislators could not serve in the executive branch lest they be seduced into identifying with it, through power, money, or flattery. Which looks increasingly wise as cabinets grow larger and legislators more supine and partisan in parliamentary systems.
Another significant protection, increasingly obscure in people’s minds, is that Parliament may not appropriate money for any purpose not described in a “speech from the throne” at the start of that parliamentary session. It helps prevent an overwhelmed legislature from being sandbagged by the executive, helplessly funding one hasty request after another. And it makes plain that the job of Parliament is not to jump when the prime minister says “frog.” It is to judge the executive’s program and bring the ministry down through a “non-confidence vote” if a majority do not find that program worthy.
Many people now think a vote isn’t a “confidence” vote unless the executive says so, in which case of course they won’t. But actually, it’s an empirical matter. A vote against the throne speech or budget is a non-confidence vote and the ministry must resign, at which point, unless someone else can assemble a parliamentary majority behind their own program, Parliament is “dissolved” and an election held. But so is any vote that demonstrates that the executive does not have the support of a reliable majority on an important matter.
Ministers are formally chosen by the Queen or King. But at least since Victoria’s uncle and predecessor William IV (1830-1837), it has been clear that to function as Her Majesty’s First Minister a man, or now woman, must command the support of a Commons that itself reflects the popular will. In that sense, Parliament chooses ministries, and through Parliament, we do. But the parties are increasingly in the way, making elections feel like referendums in which whoever piles up the most MP “tokens” on election day gets to be prime minister for four years. Including Theresa May, who clung to executive office even after clearly losing the confidence of the House, including many of many of her own tokens.
Prorogue or Dissolve?
OK, then. Should the Queen have granted Boris Johnson’s request to prorogue Parliament? Yes and no. I think she should have dissolved it instead. Having climbed over the May administration shambles into 10 Downing Street, Johnson needs a mandate to carry out his program. And, since it differs drastically from that of his predecessor on the biggest policy issue in more than a generation despite the partisan continuity, the best way to get such a mandate (or find that he does not have one) is to consult the people in a general election.But the next best way is to prorogue Parliament, so that when a new session begins in October, he can present his agenda through a throne speech and test the confidence of the House.
It’s ridiculous for people to object that Parliament will not now be able to debate Brexit. What does anyone think it has been doing, however feebly, since the votes were counted over three years ago, on June 24, 2016? And what do they suppose it will do when the new throne speech is presented in mid-October?
There’s a big outcry over Johnson’s plan for prorogation, but more fundamental, and equally ridiculous, is what the naysayers are not objecting to: namely that Theresa May kept this Parliament in session for over two years, the longest in British history. And she did it not out of respect for Parliament but out of contempt for it, to avoid a throne speech and cling to executive power—despite losing the most crushing non-confidence motion in British parliamentary history on the most important issue to come before a Parliament in at least 40 years.
It was pointless, since she couldn’t get her key bill passed. But it did lasting Constitutional harm, including confusing people about what Parliament is for and how it works.
Starting a new session isn’t a way for Johnson to bypass Parliament. It’s a way for him to face it. And though a small thing, it’s a good one.
