• Parliament and the Executive

    The Brexit issue has certainly brought with it a series of apparently difficult constitutional issues, many of them concerning the respective roles of the executive and parliament. Most of them arise because of the unwillingness of MPs, despite their professions to the contrary, to be bound by a constitutional rarity – a referendum – and as a consequence their determination to use parliament to stand in the way of the executive’s commitment to give effect to the outcome of that referendum.

    No one can be surprised, therefore, that the issue is increasingly seen by the general public as a battle between the popular will, as manifested in the referendum result, and their elected representatives in parliament. That perception has been greatly helped by the Speaker, who seems determined to go out in a blaze of glory, and by his efforts to portray himself as the defender of parliament’s rights and therefore of democracy.

    The prorogation of parliament has of course been the issue that has attracted most attention and is most easily characterised as an assault on constitutional convention, despite the fact that parliament is, as a matter of course, always prorogued at this time of year. But of equal, if not greater, novelty and significance is another, and related, development.

    If there has been one step above all others that has “stymied” the government, it has been the passage of legislation that “instructs” the Prime Minister to seek an extension of the Brexit departure date from the EU. If there is any measure in the Brexit saga that breaks new constitutional ground it is this Act of Parliament.

    Parliament is of course able to pass any legislation it likes, but to use legislation to instruct a particular member of the executive to take a particular step is to see the legislature straying well and truly beyond its usual remit and into the realm of the executive. An Act of Parliament is a measure that almost always has a general application to at least a group, if not all, of the population as a whole, and its effect is usually to change the law for those affected.

    To assume the role of an executive body and to prescribe a particular executive act is at the very least a departure from the norm. It represents the interjection of parliament into the usual relationship between the executive and the electorate – one in which the elected government seeks to act on its undertakings to those who voted it into office.

    Speaker Bercow may use his best and long-practised persona as the defender of democracy to try to persuade people that parliament has behaved properly in this matter but there is no concealing the relative novelty and far-reaching extent of what it has tried to do in this instance.

    If we are to have a workable system of parliamentary government, it is of course essential that parliament should be able hold the executive to account at every turn – but that is very different from claiming the right and power to dictate to the executive that it must take a particular step – and nor should the fact that the step required is of great significance be taken as providing a shred of justification for this power grab by parliament.

    For those who are quick to condemn the executive’s attempts to deliver on its promises, and to complain about constitutional impropriety when it does so, a period of reflection on these issues may be in order.

    Bryan Gould
    13 September 2019