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.

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