What's stopping a Corbyn Minority Government (other than it's silly)?

One has to wonder why the opposition parties who want to form an alternative government don’t just do it.  So let us look at some of the reasons....

Firstly let’s look at the arithmetic.  Excluding the 7 Sinn Féin MPs who never sit and the Speaker who by convention doesn’t vote … after the last election the parties looked like this

Conservative Party 317

Democratic Unionist Party 10

Labour Party 262             

Scottish National Party 35

Liberal Democrats 12     

Plaid Cymru 4

Green Party 1   

Independent 1

To form a technical majority government requires 325 MPs (half of the 650 total seats).  You might think 326 but remember the speaker doesn’t vote.  Sinn Fein just don’t turn up so I’ve counted them into the majority needed…. You never know they might just show one day.  So the Conservatives and the DUP teamed up to give them a working majority of (317 + 10 = 327) 2.

Following various splits, sackings and defections – this parliament is something of a record for defections and splits the numbers now look like this…

Conservative Party 288

Democratic Unionist Party 10

Labour Party 246

Scottish National Party 35

Liberal Democrats 18

The Independent Group for Change 5

Plaid Cymru 4

Green Party 1

Independent 35

The Conservatives and the DUP now have a total of (288 + 10) = 298 seats leaving them 

27 short of a majority government.

Meanwhile Labour has a total of 262.  Jo Swinson of the Liberal Democrats has said she doesn’t think she can support Jeremy Corybyn as leader of a minority caretaker government because the other parties wouldn’t unite around Mr Corbyn.  

But does Labour need the Liberal Democrats to form a government?   

Technically if the 246 Labour and 35 SNP MPs joined together that would give them a total of (246 + 35) = 281 MPs.  44 short of a majority government but only 

7 votes short of the Conservatives current minority of 298.  

Therefore Mr Corbyn only needs 7 other MPs to join him to make a bid for control of the government and start telephoning the Queen.  If Plaid and the Green lady joined in that’d mean they only needed 2 more from either the independents or the Independent Group for Change.  At this point it doesn’t matter what Jo Swinson thinks…?  Here’s a graph of that…

However, it has to be said Swinson’s logic for not wanting to form a minority government to delay Brexit and call a General Election doesn’t add up.  She says people “won’t unite around Corbyn as a leader” but if the purpose of such a coalition is only to avoid a no deal Brexit and call an election what policy platform is there to unite around in the first place?  Perhaps the truth is that once in Number 10 Corbyn would form his own administration and stay there or that’s Swinson’s plan?  Who knows?  Or perhaps it’s a political game to weaken the Labour Party.  

Any non-Corbyn Prime Minister would surely face charges that they were Corbyn’s puppet.  What would happen in situations such as Prime Minister’s Questions?  Presumably the non-Corbyn PM would answer questions for the government while Corbyn sat on the front bench behind charged with being their Svengali?   The more you think about it the more illogical it becomes.

However, should Corbyn form such a minority government with the SNP and the stragglers there’d still be the question of could it get any legislation through?  The Lib Dems could invoke a "frustrate Corbyn" policy by blocking all his legislation …or team up with the independents.   

Or Boris could try and do a deal with his sacked MPs to try to bring them back into the fold and bolster his numbers?  Then Boris could apply to be PM again by ringing the Queen.  At which point Corbyn and the Lib Dems could do another deal and we could have a new government every other week.  I know Boris has said he wants a General Election but then Boris changes course more often than a broken sat nav… so who knows…?

The Benn Act - is it Humbug?

There has recently been a lot of talk about the Benn Act.  The European Union (Withdrawal) (No. 2) Act 2019 requires the Prime Minister to ask the EU for an extension to article 50 by 19^th of October 2019 if no deal is reached with the EU by then.

The question is …will Boris obey the law or find a way to circumvent it?  Or is that actually the question?

Well, let’s put it this way… It is true that the Government’s Sovereignty comes from Parliament.  But does that make it okay for Parliament to effectively legislate against the Government?  This is a very unusual step indeed.  The normal protocol for the opposition in this situation would be to force a vote of no confidence in the government and either form their own temporary government or call a General Election.  It isn’t as if the arithmetic in the Commons is stopping the opposition forming an alternative government.  All that is stopping the opposition parties forming an alternative government is their dislike of each other.  

The situation of Parliament telling the Government what governmental decisions to make seems to me to be questionable.  If the PM does not have the confidence of the House the House should remove him or the government should remove its self and this is what used to happen before the Fixed Term Parliaments Acts.

So there is a lot of talk about it being illegal to violate the Benn Act … but is the Benn Act its self legal?   

It is highly unusual to have a law that singles out one person (the Prime Minister) and then tells him what to do.  Okay the bill could apply to anyone who was Prime Minister but since there is only one Prime Minister at a time it’s very much personally aimed at Boris.  This raises the question could Boris himself take Parliament to Judicial Review...? claiming perhaps that a law telling him personally what to do is a human rights abuse?   

Judges are not allowed to overturn primary legislation but they could issue a Declaration of incompatibility with the European Convention of Human Rights under the Human Rights Act 1998 section 4.  Of course Boris probably wants to abolish the European Convention of Human Rights but shouldn’t we be better than Boris?

Anyway, it’s all nonsense… the only way to prevent a hard Brexit is for the opposition parties to put aside their differences and form a government…  Trying to tell the executive what to do by legislating against it is, if not unconstitutional (which it may be), … at the very least a very long winded and silly way to run a country.  Still that’s the Fixed Term Parliament Act for you…

Guest post by Lady Hale of the Supreme Court

It seems then that the Supreme Court has decided - as was anticipated - that the porogation of parliament by Boris Johnson was illegal, null and void.  Much has been made of the fact that this was a unanimous 11-0 decision.  But is this really such a suprise? Time and again during the TV coverage the Judges asked the Government why they put forward no proper witness statements and one has to ask yes ... why?  The only answers I can come up with are that the Prime Minister is just intelligent enough not to perjure himself or worse to bring further condemnation by being accused of lying to or misleading the Court.  Also the Government has been doing everything it can to avoid answering the question "how and why was this decision taken?"  In short it literally put up no defence.

Perhaps the Cabinet Office knew by the point that it reached the Supreme Court that the Government goose was already cooked but the Judges seemed offended that the Government hadn't even bothered to mount a proper defence.  In this situation then the Court could only conclude that...

No justification for taking action with such an extreme effect has been put before the court. The only evidence of why it was taken is the memorandum from Nikki da Costa of 15th August.

This explains why holding the Queen’s Speech to open a new session of Parliament on 14th October would be desirable. It does not explain why it was necessary to bring Parliamentary business to a halt for five weeks before that, when the normal period necessary to prepare for the Queen’s Speech is four to six days. It does not discuss the difference between prorogation and recess. It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to achieve an orderly withdrawal from the European Union, with or without a withdrawal agreement, on 31st October. It does not discuss what Parliamentary time would be needed to secure Parliamentary approval for any new withdrawal agreement, as required by section 13 of the European Union (Withdrawal) Act 2018.

The Court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

Johnson simply says he profoundly disagrees with Judges, uses the need for a Queen's speech to try to justify the 5 week porogation when the Judges say there is no excuse and tries to pretend that he thought that like He-man he "had the power..."

Acutally the boundaries of executive power have been open to various forms of "Judicial Review" for centuries.  The main modern precedent by which the judiciary may over-rule the government is known as Wednesbury Reasonableness.

This is the Wednesbury Gaumont (later ODEON later Ladbrokes Bingo) picture house ...

In 1932 the Government passed the "Sunday Entertainments Acts" - this allowed for the opening of Cinemas on a Sunday.  However, the local authority were not up for Sunday Cinema so they inserted a clause into the cinema Licence that "no children under the age of fifteen years shall be admitted to any entertainments whether accompanied by adult or not"... in an attempt to allow the Cinema to open but only in such a way as to be painfully uncommercial.  This resulted in an epic legal battle which became known as

ASSOCIATED PROVINCIAL PICTURE HOUSES, LIMITED
v. WEDNESBURY CORPORATION.

To cut a long story short to everyone's astonishment the Picture House won...

Other bounds on executive power were set by Council of Civil Service Unions v Minister for the Civil Service when Mrs Thatcher got into an argument with the courts about banning unions at GCHQ.  Here are some memorable quotes from the judements in these two cases...

The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.  

Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority
could ever have come to it. In such a case, again, I think the court can interfere.

The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.

 In the exertion therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution. And yet if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just and severe account"