Monthly Archives: September 2019

Does the Rule of Law apply to the Government?

With the Brexit chaos continuing, one extraordinary dialogue taking place in British Politics is whether or not Boris Johnson will carry out the instruction of Parliament to seek an extension to Britain’s departure date from the European Union.

Boris Johnson’s Brexit Plans have not succeeded so far.

The Rule of Law is a fundamental principle of the UK’s constitution and indeed that of any Liberal Democracy. In Britain, the Rule of Law was codified by Victorian scholar A.C Dicey. One of the most important principles that he codified was that no person is above the law and the law applies equally to everyone.

AV Dicey codified the Rule of Law which he called ‘one of the twin pillars of the constitution’

On 9th September 2019 an act was passed in Parliament which instructs the the Prime Minister to seek an extension to the Brexit deadline from the European Union if Britain and the EU are unable to reach a deal by 19th October. The text of the letter to be sent is included in the bill. It will read:

Dear Mr President,

The UK Parliament has passed the European Union (Withdrawal) (No. 2) Act 2019. Its provisions now require Her Majesty’s Government to seek an extension of the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020.

I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty. The United Kingdom proposes that this period should end at 11.00pm GMT on 31 January 2020. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early.

Yours sincerely,

Prime Minister of the United Kingdom of Great Britain and Northern Ireland

This Act, and the letter it mandates, is contrary to the Prime Minister’s stated promise to UK citizens that the the UK would leave the EU on the 31st of October “do or die, come what may”.

The Act of Parliament has left the Prime Minister with very little wriggle room. A number of scenarios have been suggested:

Option 1 – Accompany the letter with another letter

One option that has been suggested is that the Prime Minister could send Parliament’s letter but also include his own in the package. In this second letter he could say that he does not really want an extension and that he does not believe it is Britain’s interest. He may hope that doing this may exasperate the EU so much that they will give in and refuse to give Britain and extension.

However, legal experts have been clear that this would likely be illegal. The former Chief of the Crown Prosecution Service said:

The act is quite clear in what it requires the prime minister to do. If he sends a side letter to the EU that deliberately conflicts with that requirement, he is deliberately in breach of the law.

Ken Macdonald -Former Chief of the CPS

Option 2 – Persuade an EU Member State to veto the extension.

The EU can only grant an extension of all of the other 27 member states agree. Boris Johnson may try to persuade one of the member states to vote against an extension. If this happens, Britain will leave on the 31st October 2019 as this is the legal default position. There are some leaders of EU countries that are eurosceptic, Viktor Orban of Hungary being a clear example. However, the EU has a long history of acting collectively. Hungary would have little to gain from upsetting her European neighbors and would likely vote as the rest of the bloc does.

Hungarian PM, Viktor Orban, is no fan of the EU but is unlikely to risk the wrath of his EU allies for the sake of helping Boris Johnson.

Option 3 – Find a loophole in the legislation

A number of prominent Cabinet Members have said that the Government is actively trying to find a loophole in the legislation that has been passed. However, the bill was drafted by Hillary Benn and supported by figures like Dominic Grieve. These are respected parliamentarians and it is unlikely that they have created anything but a watertight bill.

Labour MP Hillary Benn drafted the Act of Parliament that was passed on Monday.

Option 4 – Resign and force an election

Boris Johnson has twice failed to convince Parliament to vote for an early election, with Labour, Liberal Democrats and the SNP all saying they will not support an election call until the Brexit extension has been granted. However, Boris Johnson could choose to resign. This would start a 14 day process for a new government to be formed or a new election would have to be called. However, this would be a perilously risky move. An alternative government may be found from elsewhere in the House of Commons and this is a risk that Boris Johnson will unlikely take.

Some of these options risk Boris Johnson running fell of the Rule of Law, a key feature of the UK Constitution. In the UK Parliament is sovereign. This means no body can overrule, not even the Prime Minister. Any attempt by the Prime Minister to avoid or circumvent the lawful instructions given to him by Parliament may not only result in court action but may also be a criminal offence.

Boris Johnson has said he would rather ‘die in a ditch’ than seek an extension from the EU. In reality, if he wants to stay Prime Minister, he really has no choice as things stand.

What is the significance of the withdrawal of the whip and deselection?

One of the significant results of Thursday’s ’s proceedings in the House of Commons is that 21 Conservative MPs had the whip withdrawn for voting against the Government. These included the grandson of Winston Churchill, Nicholas Soames, and the Father of the House, Kenneth Clarke. Soames had only voted against his own party 3 times in 37 years whilst Ken Clarke has served in the Governments of Margaret Thatcher, John Major and David Cameron, previously holding the titles of Home Secretary and Chancellor of the Exchequer.

Ken Clarke is the Father of the House (the title given to the longest serving male MP) and has now had the Conservative Whip withdrawn after 50 years as a Conservative MP.

This led to criticism of the government from across the House, with reports that even Theresa May had said the MPs affected should be reinstated with the Conservative Whip. The most passionate criticism of the Government, however, came from Labour MP Jess Phillips who called Conservative MPs ‘cowards’ for watching the withdrawals without protest:

The ‘Whip’ is the term given for the right to sit in a political party in Parliament. Sitting with a political party means that you can use their often significant resources. However, it also means that MPs are expected to ‘toe the party line’ and vote with the party, particularly on their key policy issues.

Having the whip withdrawn is one of last resorts that parties have to maintain discipline within the party. Having the whip withdrawn is relatively rare. Some of the famous examples of this are:

George Galloway (2003): Galloway was expelled from the Labour Party in 2003 after being found guilty of five counts of bringing the party into disrepute. This expulsion came after 36 years of membership. Galloway was an outspoken critic of Tony Blair’s decision (ratified by Parliament) to send troops to Iraq and had backed anti-war campaigners to stand against Labour in the next election.

The Maastricht Rebels (1992): Eight members of John Major’s Conservative Party consistently failed to back his call for the ratification of the Maastricht Treaty. The Maastricht Treaty created the European Union (formerly EEC). There were 22 rebels, and given the fact that Major only had a majority of 18, they were a significant thorn in the Prime Minister’s side. A total of 10 MPs had the whip withdrawn for failing to support the PM over the treaty.

Ken Livingstone (2000): Ken Livingstone wanted to run as Labour candidate for Mayor of London in 2000. He had previously been Leader of the Greater London Council between 1981 and 1986 and had significant experience of politics in London. However, Labour decided to select Frank Dobson as their candidate. Livingstone declared that he would run independently and as a consequence had the Labour whip withdrawn. Livingstone went on to win the 2000 and 2004 mayoral elections, being made Labour’s official candidate in 2004.

Alongside having the whip withdrawn these MPs are now likely to be deselected – meaning they cannot stand as Conservative MPs in the next election. This is a significant punishment. It is extremely rare for MPs to be elected to the House of Commons without the support of a major party. In fact, the only MP currently elected as an Independent in Sylvia Hermon, MP for North Down.

Sylvia Hermon is the only current MP who was elected as an Independent.

The current situation has led to cries of Government hypocrisy. For example, the Prime Minister voted against Theresa May’s deal on two occasions whilst Leader of the House, Jacob Rees-Mogg, voted against Theresa May’s deal on all three occasions.

Nicholas Soames, one of the MPs to have the whip withdrawn, pointed out the hypocrisy in the Prime Minister’s move.

The impact of deselection is hard to tell. Many local Conservative Associations seem content with the decision. For example, Philip Hammond’s Runnymead and Weybridge association have said deselection is the right decision. However, parties have to carefully balance the views of their grassroots members with those of the electorate who will decide their fate at the next election. Whilst the move to the right may please many traditional Tory voters and therefore fend of the challenge from the Brexit Party, it may lead to disillusionment with those who believe a carefully managed Brexit is essential and are willing to accept further extensions to that end. A General Election will arrive soon, that much is for certain. With it will come a chance to test the direction the decisions the Prime Minister has made. It is important to note that current polls see the Conservatives clearly in the lead. The current estimate from Electoral Calculus is that an election would result in a Conservative Majority of 50.

What is Standing Order 24?

Yesterday Parliament voted to take control of the parliamentary agenda. The Government was defeated by 328 to 301 with 21 Conservative MPs voting against the government – even despite threats of having the whip withdrawn and being deselected by the Government

A number of prominent Conservative Backbenchers spoke forcefully about their treatment by the Government:

“If he [the PM] thinks the device of withdrawing the whip this evening is going to change my mind or that of my right honorable friends, he has got another thing coming. It will be treated with the contempt it deserves”

Dominic Grieve did not hold back in his criticism of the Prime Minister

During the debate Jacob Rees-Mogg was criticized for treating Parliament with derision by taken up a sedentary position:

This led to a number of humourous memes:

Yesterday’s motion means that today the House of Commons could introduce a bill to prevent the Government taking the UK out of the EU without a deal. This occurred with the bill passing all three readings in the House of Commons and it now goes to the House of Lords.

Constitutionally, yesterday’s vote was extremely significant and was a rare example of an emergency debate under Standing Order 24. Standing Orders are the procedural rules that the House of Commons follows. These rules are decided by the House and can be amended by the House.

Standing Order 24 allows for an MP to apply to the Speaker of the House of Commons for an emergency debate.

The Speaker of the House of Commons is pivotal in granting debates under Standing Order 24

It is up to the discretion of the Speaker as to whether or not the debate should be granted and this is a high bar. Since 1979 there have been around 50 debates under the order.

It now a seems likely that the bill will pass and we move on to the next stage in the drama. The PM confirmed he would bring forward a motion under the Fixed-Term Parliaments Act (2011) to hold an early General Election, but, incredibly, it appears the the opposition will vote against it, saying they will not call an election until the no-deal bill has passed.

The Week Ahead in Parliament

The week ahead is likely to be one of the most fascinating in British Parliamentary history. It is not clear what will happen, or even how things will happen – what is clear is that this may be the most significant week in parliament this century.

Boris Johnson’s request to prorogue Parliament has divided both Parliament and the country. A number of protests have taken place across the country.

An Anti-Prorogation rally outside Downing Street

The government argue that prorogation (temporarily suspending Parliament) is a normal process. To an extent this is true. Although elections must take place every five years, each Parliamentary Session normally lasts around two years. The current session has lasted since July 20th 2017 and is the longest since 1651. However, the timing (INSERT days before Brexit) and the length – five weeks as opposed to few days – lean towards suggesting this is a political ploy to limit parliamentarians ability to block a no deal Brexit.

This prorogation will be significantly longer than those in recent history.

However, there are a number of things they may happen this week.

  1. Legislation to prevent a no-deal Brexit

Legislation normally takes many months to pass from start to finish. However, it is possible for legislation to be passed very quickly. For example, the Data Retention and Investigatory Powers Bill in 2014 passed all its House of Commons stages in one day.

However, in the current circumstances, in will be extremely difficult for legislation to be passed. To do so, a number of hurdles need to be overcome:

a) Control needs to be taken over the Parliamentary Agenda

The agenda of Parliament is normally controlled by the Government. In order to be able to take control of the agenda they will need to apply to the Speaker, Jon Bercow, for an emergency date under Standing Order 24. It is likely Bercow will allow such a request, given his comments that prorogation was “a constitutional outrage”.

The current Speaker of the House of Commons has always been an outspoken advocate of the rights of Parliament. This week, however, this will put him at direct loggerheads with the Executive.

MPs could then introduce the bill for its First Reading, with the Second Reading taking place on Wednesday.

b) Numbers

It is clear that there is distinct opposition within Parliament to a No Deal Brexit. This combined with the fact that Boris Johnson, with the support of the DUP, only has a majority of 1, suggests legislation could be passed.

However, it is important to note that there are some Labour MPs who do support the government’s position on a no deal Brexit. For example, veteran Labour MP Kate Hoey is a passionate advocate of Brexit, whilst MPs like Lisa Nandy recognise they are in leave supporting seats. These MPs may not vote against an opposition motion, but there is a distinct possibility that they may abstain, making legislation harder to pass.

In addition, on Sunday Evening Boris Johnson declared that a Conservative MP who voted in support of opposition motions this week would have the whip withdrawn and would be deselected, meaning they could not stand as Conservatives at the next General Election (which is likely to be held before the end of the year). It is unlikely this threat will have an impact on all. For example, Oliver Letwin has already said that he will stand down at the next election so this is little deterrent.

David Gauke is one MP who has said he will vote against a no-deal Brexit and could face de-selection.

c) The House of Lords

Any bill needs to be agreed by both the House of Commons and the House of Lords. Whilst in the House of Commons the Speaker is in control and can limit the time spent on speeches, this is far less the case in the Lords which has a more informal set up. This will give the chance for Lords who support the government (of which there are many) to filibuster the bill. The House of Lords does not usually sit on a Friday and it is unlikely a bill will reach the Lords until Thursday. This leaves only two days for the bill to go through all of its required stages – which is extremely hard to imagine at present.

However. If it does, the bill will receive Royal Assent on Monday and the government will have been defeated on its current Brexit plans.

2. A Motion of No Confidence

Failing an attempt to pass legislation, there is the possibility that a Motion of No Confidence will be held against the Government. This will be covered in Wednesday’s Blog, but, if successful, will see a 14 day period in which either a government (new or old) can secure the confidence of the House or the government resigns and a General Election occurs.

There are very few weeks in parliamentary history that have been entered into under such a cloud of uncertainty. The only certainty is that it will b enthralling.