Is It Legal?

With British politics in disarray, we try to sort out what's a stake - legally, constitutionally and electorally. Can Johnson refuse to do what parliament demands? Can Corbyn get the election he wants? What is Dominic Cummings playing at? And how much is the Fixed-term Parliaments Act to blame for the mess? Plus we explore the likely choices ahead for voters and politicians and we ask the big question lying behind all the drama: is this a question of politics or is it a matter of law? With Helen Thompson and Kenneth Armstrong.

Talking Points:

What was Johnson trying to achieve with prorogation?

• Deliberately provoking the opposition? Making it look like Parliament had been defeated to push the EU to work toward another agreement?

A lot is going wrong for the government right now and it is struggling get to the general election it wants to fight.

• Helen thinks that the actual goal is an orderly exit from the EU. • But people don’t believe Johnson when he says he is serious about getting a deal.

Corbyn says that the opposition wants a general election, but only after no deal has been ruled out.

• But if the election takes place in mid-October and Johnson wins a majority, he could overturn any legislation outlawing a no deal. • Parliament could still revoke Article 50. This might be the best case scenario for Johnson because he could then have a Parliament vs. the people election. • The assumption seems to be that the government cannot be replaced, but it also can’t do what it wants to do. • Everyone seems to be trying to tie someone’s hands, but how do you create the politics where you can actually do things?

At some point there will be a general election: the government is framing it as a choice on Brexit.

• May tried to do that in 2017 and failed. • But Johnson isn’t May, and he’s running on a more populist, anti-austerity platform. • What does Labour want to fight this election on? Would they fare better in a Brexit or non-Brexit election? • The Lib Dems are in a very different position this time.

This is an unusual government: the stories about Dominic Cummings are damaging, but it doesn’t look like he’s going anywhere.

• A referendum is very different than a general election.

Mentioned in this episode:

Catherine Haddon on the Fixed Term Parliaments ActStephen Sedley on Jonathan Sumption and the rule of law for the LRB

Further Learning:

Scottish Court rules that prorogation is lawfulOn challenges around a bill to prevent no dealDavid and Helen talking about prorogation on the 538 podcast

And as ever, recommended reading curated by our friends at the LRB can be found here: lrb.co.uk/talking

Release date

Lydbog: 4. september 2019