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What Are Boris Johnson’s Options?

British Prime Minister Boris Johnson outside Downing Street in London, England, September 5, 2019. (Simon Dawson/Reuters)
His hands are tied by Parliament, but perhaps not completely.

A  coalition of Labour, Liberal Democratic, and Conservative rebels voted last week to force U.K. prime minister Boris Johnson to extend the deadline for the British exit from the European Union from October 31 to Jan. 31, 2020. As an alternative, the bill stipulates that the prime minister must accept whatever other exit date the European Union’s representatives propose and the House of Commons accepts. Johnson responded by removing from the Conservative party the 21 Tory rebels who voted for the so-called Benn-Burt bill, including luminaries such as Kenneth Clarke, the longest-serving member of Parliament, and Nicholas Soames, grandson of Winston Churchill. Jo Johnson, the prime minister’s brother, preemptively resigned, and now Amber Rudd has resigned as a member of Johnson’s cabinet. Johnson also called for a general election under the norm that defeat of a key measure of the government triggers a call for new political leadership. He was refused by Parliament, which under the 2011 Fixed-term Parliaments Act must provide a two-thirds assent to such a plea. The prime minister has lost his majority and sits atop a nearly impotent government. Johnson has vowed that he will not follow Parliament’s order to delay Brexit, opining that he would rather be “dead in a ditch” than agree to an extension with the EU. What are his options, though?

Johnson seems short on choices to achieve Brexit. Perhaps the best way out is to resign, compel the opposition to install Jeremy Corbyn, its most likely leader, and call for elections. The shambolic Johnson would frame the election as “Parliament vs. the People,” whose vote in 2016 for an exit from the European Union is perpetually frustrated by Parliament. Current polls indicate that the Conservatives would win that election, and, with that victory, likely acquire a majority strong enough to finally exit the European Union, come what may. There are many “ifs” in that option. Red Corbyn would likely enter No. 10, carrying with him all the collectivist baggage of Labour parties past. What if the Conservatives lose the next election, Corbyn grows stronger, and the screws get turned into the U.K. economy?

The best option is for Johnson to defy the Benn-Burt bill itself by refusing its demands to obtain extension for Britain’s EU exit. The possibility of following such a course has predictably drawn the widest criticisms from members of Parliament. David Lidington, who was deputy prime minister in Theresa May’s government, remarked that “it is a fundamental principle that we are governed by the rule of law that I hope no party would question it.” An anonymous cabinet minister stated, “As a government we abide by the rule of law, or you don’t stay in office.” Sir Ken MacDonald, a Liberal Democratic MP and former prosecutor, noted that Johnson could be jailed if he refused to heed the Benn-Burt legislation. This crew, though, should be careful what they wish for. They are members of the same body that refuses to provide any means for an effectual withdrawal of Britain from the EU, the instructions they were given by the people in the Brexit vote and which everyone understood during the Remain/Leave campaign were to be conclusive on this matter. It is a bit rich.

What Johnson has understood from the moment he stepped into No. 10 Downing Street, unlike his predecessor, Theresa May, is that movement and pressure from his office are required to achieve Britain’s reclaiming of its sovereignty. He has acted as an executive leader, fully accountable and fully energized, taking the fight to his domestic opponents and his foreign enemies. To Brussels he has given every indication of a so-called “No-deal Brexit.” Such a path will inflict short-term pain on the U.K., but it will also inflict pain on its trading partners in the EU. Thus, Brussels knows that with Johnson, unlike with May, the unthinkable is now a distinct possibility: Is it time to make a better deal with the U.K.? Benn-Burt aims to cripple Johnson on this point, taking his leverage off the table by foreclosing a No-deal Brexit, and giving the initiative back to Brussels, delaying (perhaps permanently) Britain’s exit.

To his domestic opposition, Johnson prorogued Parliament, shortening their hour of dissent. What he failed to contemplate was that his opponents would both pass a bill demanding an extension of EU membership and refuse new elections. They would rather impair government at will and refuse responsibility for the results. Such an opposition undermines its own seriousness.

Strangely, we might recall another founding moment, this one in America, where supporters of the status quo were content with paralysis and muddling through, forgetting the essential ends of government. Johnson’s opponents resemble the more recalcitrant of the Antifederalists in their resistance to the proposed Constitution of 1787 that was to replace the Articles of Confederation. There were many causes of disagreement, and the Antifederalists themselves were hardly a united voice, but one argument pressed was the clause in the Articles of Confederation that permitted its amendment only by a unanimous agreement by the member states. Proponents of the Constitution had not secured unanimous assent to amend the Articles, making it an illegitimate replacement of them. In short, those called the Federalists had allegedly violated the rule of law.

In response, the Federalists argued that the country stood in a popular-sovereignty moment. The people must decide what Constitution they would live under as determined by their representatives in state ratifying conventions. Such a moment was called for because the Articles failed to carry out the ends of government and could result, ultimately, in the continental union of republican governments splitting apart into numerous squabbling states. Other fears included property rights’ being usurped by majorities in the states. Shays’s Massachusetts rebellion would be merely a warm-up to societal anarchy, trade would break down amongst the states, and the final result and insult would be invitations from jealous states to various European partners to reenter the North American continent on their behalf and against their enemies. The dream of a republican union would be permanently hobbled before it could walk.

Think of Johnson’s opposition in light of the Benn-Burt bill, which shackles Johnson to surrender the fortunes of British sovereignty to EU grandees. The EU’s purpose the last three years has been to prepare Britain for a ritual sacrifice in front of EU members: See what happens if you try to leave Club EU; we will attempt to cripple your economy; intervene in your domestic politics — supporters of Benn-Burt reportedly collaborated with the EU on the legislation — refuse good-faith negotiations with you at every turn; and we are willing to cut our own noses off if it means we undermine your new existence.

What kind of an opposition contents itself with torpor, paralysis, and permanent infighting, and refuses to express the referendum of the people’s vote for an exit from the European Union? What kind of an opposition prevents its elected leader from using every power he holds to secure the best future for the sovereign nation he leads? What could be more essential to the ends of government than sovereignty: robust and full? Benn-Burt is the outcome of not only political imprudence and anti-democratic sentiment, but also, it would seem, of unconstitutional principles.

Supporting that last judgment is recent British constitutional analysis by Robert Craig, a lecturer in law at the London School of Economics, who argues that Benn-Burt violates “Queen’s Consent.” In ordering the prime minister to delay Britain’s exit, the bill intrudes on the prerogative powers of the Crown, executive powers exercised by the prime minister. There is nothing more essential to such powers than treaty-making and negotiation, the precise powers that have been unlawfully commandeered by Johnson’s opponents.

Johnson should assert this constitutional norm against his opponents. No government can lead a nation with its executive’s hands held behind its back by committee. The ancient constitutional wisdom knows this. What remains is for full vindication of British constitutionalism in the service of British sovereignty. Prime Minister Johnson stands at the edge of a new founding moment for the United Kingdom, one where it reclaims its powers of the earth. The British people voted in a referendum in 1975 to remain in the Common Market; they have now voted to leave. Parliament has squatted on this judgment. Johnson is fully within his powers to bring Britain out of the EU, as requested by a democratic vote. To achieve that will require violating Benn-Burt, but it is a law worth violating because it is not a law at all.

Richard M. Reinsch II is the editor of the Law & Liberty website, the host of Liberty Law Talk, and the co-author, with Peter Augustine Lawler, of A Constitution in Full: Recovering the Unwritten Foundation of American Liberty (University Press of Kansas, 2019).

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