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.

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.

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.

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.

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.

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”

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.

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 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.

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.

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”.

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.

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.

The Speaker of the House of Commons is an elected Member of Parliament but is meant to remain politically neutral so that he can adequately discharge his or her constitutional duties.

The current Speaker, John Bercow, has been consistently criticised for failing to adhere to this duty of neutrality with some notable examples.

For example, in February 2017 Bercow gave in speech from the chair in which he made clear that he was opposed to the granting of a State Visit to US President, Donald Trump. As Speaker of the House of Commons Bercow is one of three key holders to Westminster Hall, holding an effective veto over its use for speeches by foreign dignitaries. From the chair, he controversially made clear that he would be opposed to any such speech by President Trump because of his “migrant ban” saying ” as far as this place is concerned, I feel very strongly that our opposition to racism and sexism and our support for equality before the law an independent judiciary are hugely important considerations in the House of Commons”.

The Speaker has also been criticised for impartiality over Brexit. For example, on the 18th March 2019 he prevented a third vote taking place on Theresa May’s deal. In doing so he was quoting precedent from the 18th century which suggests that a vote cannot take place on the same issue twice:

However, commentators noted that the Speaker had allowed multiple votes on other issues before. He was heavily critcised with one Conservative MP, Tim Loughton, calling it ” most serious constitutional crisis I have seen in my 22 years in this house” .

Bercow’s perceived bias also led to a tense confrontation with a Conservative Backbencher Adam Holloway who criticised a sticker that he alleged was in the Speaker’s personal car.

At important mechanism for the ensuring the impartiality of the Speaker is the existence of the Denison Convention. This is named after John Denison, Speaker between 1857 and 1872. This is the convention that if there is a tie in the House of Commons the Speakers always votes to:

• Ensure the Status Quo

• Continue Debate

This is important because it means a Speaker would vote differently depending on when the tie in question happened. For example, if there was a tie at Second Reading the Speaker would vote in favour of the motion. This is because by ensuring that it went to Committee, Report Stage and Third Reading, the Speaker would be ensuring that the issue was guaranteed further debate. However, if a tie emerged at Third Reading the Speaker might well cast his vote differently on the very same issue – because he would vote for the status quo.

It is extremely rare for the Denison Convention to have to be deployed. One reason for this is the power that the government usually has over the parliamentary process. As a result of the First Past The Post System the Government usually has a large majority and can control the Parliamentary agenda. This situation was coined the ‘Elective Dictatorship’ by Lord Hailsham. This means the government are very rarely defeated and, if they are likely to be so, they will withdraw their plans. An example of this is when Theresa May decided to withdraw a meaningful vote on her deal in December 2018 as it was clear that she would lose.

However, in the event of a hung parliament, this is less the case. This is obviously no more clear than over Brexit that has seen a number of very close divisions. However, the closest division occurred on 3rd April 2019 when a vote on whether to hold more indicative cores resulted in a tie of 310 to 310. The Speaker casted his vote against more indicative votes (as this is an unusual process).

He stated “in accordance with precedent and the and principle that important decisions should not be taken expect by a majority, I cast my vote with the noes”.

This was the first time the that the Denison Convention had come into use since 1993 when it was used to decide a vote on the Maastricht Treaty by 317 to 317. However, it later transpired that there had been a miscount and the vote was amended.

With no clear sign that Brexit divisions are diminishing, it is by no means certain that the Denison Convention will be relied upon again. At least in its exercise, no-one was questioning the action of the Speaker.

Background

In 2017 a girl called Gina Martin was at a gig with her friends and family. It was a hot day and she was wearing a skirt. During the gig, two men put a mobile phone between her legs and took a picture of her crotch. This act, which is known as ‘upskirting’, was done entirely without her consent. Martin reported it the the Police, but, to her shock, was told that no law had been broken and the man involved could not be arrested. There is a law of ‘outraging public decency’ but the alleged offence did not meet the criteria. Had the man made any physical contact with her an arrest would be possible under other established sexual offenses. This was clearly an area of law that needed clarity as existing law was not fit for purpose.

Martin shared her story on social media and many women responded with similar stories. It seemed that upskirting was far more prominent than Martin had been aware. An online petition was launched which reached over 50,000 signatures.

Passage

The issue was taken up by Liberal Democrat MP Wera Hobhouse who in March 2018 introduced a Private Members Bill that sought to criminalise upskirting. Normally, Private Members Bills have a very difficult legislative path and are unlikely to pass. However, after reviewing the issue, the Government decided that they would actively support the bill. This made it much more likely that it would pass.

First Reading – The First Reading took place on the 21.06.2018. No debate takes place during the First Reading but the Second Reading was scheduled for June 2018.

Second Reading – During the Second Reading of the bill a controversial moment occurred. Private Members Bills can be stopped in their passage by the objection of just a single MP. To the disgust of many, a Conservative Backbencher called Christopher Chope objected:

Chope later explained that he was not objecting in regards to the issue of the bill itself. He said that he was objecting to the fact that the bill was being pushed through second reading without a debate. Chope said:

” The government has been hijacking time that is rightfully that of backbenchers. This is about who controls the House of Commons on Fridays and that’s where I am coming from. I actually support the Bills that were before the house. Four of the 26 Bills that fell at the same time were my own. But this is something I have fought for in most of my time as an MP and it goes to the very heart of the power balance between the government and Parliament. The government is abusing parliamentary time for its own ends and in a democracy this is not acceptable. The government cannot just bring in what it wants on the nod. We don’t quite live in the Putin era yet.”

The Second Reading eventually took place on 03.07.2018 and the motion passed without a division.

Committee Stage – The Public Bill Committee Stage took place between 10.07.2018 and the 12.07.2018. The Committee was made up of 18 members, including Christopher Chope. The Committee heard from a number of experts and stakeholders including:

• Representatives from the Crown Prosecution Service

• The Mayor of London, Sadiq Khan

• Professor Clare McGlynn from the Law School of Durham University

During the Committee Stage some amendments were made to the bill. For example, the proposed offence was limited only to when a person over 18 did it for the purposes of sexual gratification. An amendment that required the Director of Public Prosecutions to issue guidance to police forces was also passed.

Report Stage – The Report Stage in the House of Commons took place on 05.09.2018. Debate took place over a number of issues, including whether perpetrators of the offence should be placed on the Sex Offenders Register.

Grand Committee Stage – As the bill was an ‘English and Welsh’ only issue a Grand Committee Stage took place directly after the Report Stage. This meant that only English and Welsh MPs could vote on further amendments. The Committee consented to the Bill with no amendments.

Third Reading – At 19.44 on the 05.08.2018 (the same day as the Report Stage and Grand Committee Stage) the bill had its Third Reading. The Bill was passed on a voice vote as no members objected.

Lords First Reading – The bill had its first reading in the Lords the very next day. Second Reading was set for late October.

Lords Second Reading – The Second Reading took place on the 23.10.2018. Some key points were made. For example, members of the Lords said that the requirement of a motive of ‘sexual gratification’ could leave a loophole if a picture was taken simply for another purpose, such as for financial gain. The bill passed its Second Reading and went to Committee Stage.

Lords Committee Stage – The Lords Committee Stage took place on the 26.11.2018. As usual in the Lords, it was a committee of the whole house who sat. No amendments were placed on the bill.

Lords Report Stage – The Lords Report Stage took place on the 18.12.2018. This was a straightforward affair because there were no amendments to consider from the Committee Stage. In fact, the Report Stage amounted to one speech with no interventions.

Lords Third Reading – The Third Reading of the Bill took place on 15.01.2019. The bill was passed on a voice vote.

Royal Assent – The bill received Royal Assent on 12.02.2019. The bill is very short, as it is limited to the specific offence of ‘upskirting’.

The bill went through all of its parliamentary stages without a division in either house. This is a clear indication that it was accepted that the issue was a gap in the law that needed fixing.

The full bill can be read here:

Results of the Bill

Gina Martin was rightly praised for bringing the issue to public prominence. She could have been like many other young women who have grown up accepting sexual harassment as ‘just the way it is’. However, she was determined to make a difference and with the help of Wera Hobhouse, she was able to do so. In doing so, she may well have prevented other young women going through the hurt and anguish that she was forced to go through.

Upskirting is now a criminal offence that is punishable by up to two years in prison. The most serious offences could also result in the offender being place on the Sex Offenders Register.

Parliament is made up of three constituent parts: the House of Lords, the House of Commons and the Crown-in-Parliament. Traditionally, the House of Lords and Crown were the dominant institutions in Parliament. Firstly, this was because Parliament only sat on the say so of the monarch. For example, when Charles I recalled Parliament in 1640 it was the first Parliament to sit in eleven years.

The House of Lords developed from the Medieval ‘Great Council’ that advised the monarch on matters of state. It was made up of nobles and churchmen. The House of Commons developed in the 13th and 14th centuries and was made up of representatives from the boroughs and shires of England.

The House of Lords remained undoubtedly the dominant House of Parliament until the Great Reform Act of 1832. After this, the trajectory of the powers of the two houses altered, with the Commons increasing and the Lords on the decline.

Today, although the House of Lords is called the ‘Upper Chamber’, the House of Commons is undoubtedly the dominant house. There are a number of reasons for this:

1. The Parliament Acts

Between 1909 and 1911 a constitutional crisis emerged over the refusal of the House of Lords to pass Chancellor David Lloyd George’s ‘people’s budget’. The crisis eventually ended with the passing of the Parliament Act (1911). This act removed the power of the House of Lords to block legislation and limited it to delaying legislation for two years. In 1949 the delaying power of the House of Lords was reduced to just one year. This means that if the House of Commons passes the same act for two consecutive parliamentary years, they can use the Parliament Act to bypass the House of Lords. The Parliament Act has only been used on four occasions:

War Crimes Act (1991) – This allowed UK courts to try suspected crimes committed on behalf of Nazi Germany during the Second World War.

European Parliamentary Elections Act (1999) – This changed the voting system used in European Parliamentary Elections in the UK from First Past the Post to the D’Hondt method of proportional representation.

Sexual Offences (Amendment) Act (2000) – This equalized the age of consent for homosexual sex with that of heterosexual sex .

Hunting Act (2004) – This prohibited the use of dogs in the hunting of wild mammals (especially foxes).

Even though it has only been used four times, the very existence of the Parliament Act means that the House of Lords is likely to back down rather than risk the Act being imposed by the House of Commons, meaning its existence is extremely significant. 

2. Financial Privilege

An important parliamentary convention between the two houses is that the House of Commons is solely responsible for financial matters. For example, each year the Chancellor of the Exchequer presents his Budget. This outlines how the government is going to spend and raise money for the year. By convention, the House of Lords do not vote against the Budget.

In 2015 the convention was severely tested when the House of Lords voted against a government motion to cut tax credits. They justified this by saying they had voted against a statutory instrument and not a bill and therefore the financial privilege convention did not apply. Although this was technically correct, the House of Lords were clearly pushing constitutional boundaries in their actions.

3. The Salisbury Convention

The Salisbury Convention dictates that the House of Lords does not vote against any bill that formed part of the government’s election manifesto. The reason for this is that if a bill formed part of a government’s election manifesto it is reasonable to believe that the passage of that bill is the expressed wish of the electorate. The Salisbury Convention was particularly important in the passage of the House of Lords Act (1999). This act removed all but 92 hereditary peers from the House of Lords and would almost certainly not have passed had the convention not existed.

The Salisbury Convention is complicated by the factor of Hung Parliaments. For example, in May 2010 no one party won the election and therefore no party could claim clear mandate from the electorate. A Coalition Government was formed between the Conservatives and Liberal Democrats. To enable this to happen, a Coalition Agreement was made between the two parties that merged their policies to create a compromise agreement. The Coalition Agreement was never put to the voters, so therefore the Salisbury Convention did not apply.

Currently, the Conservatives are in government due to a Confidence and Supply agreement with the DUP. This is because the Conservatives only won 318 seats in the 2017 General Election and therefore not enough for a majority. Similarly to 2010-2017, the Salisbury Convention cannot be reasonably expected to apply because the governing party has not received a clear mandate from the electorate.

4. Reasonable Time Convention

An important convention that exists in the House of Lords is that Government business will be considered in “reasonable time”. The Government largely controls the business of the House of Commons and can therefore ensure that their business is prioritised. However, the Government’s control of the House of Lords is much less significant. By convention the Lords agree not to unreasonably delay Government business.

5. Secondary Legislation

Secondary Legislation is law created by the Government under the auspices of a bill that has previously been passed by Parliament. Secondary Legislation is essential in the carrying out of government functions as Parliament would not have time to debate and vote on every single governmental issue that needs clarification. For example, Secondary Legislation under the Misuse of Drugs Act (1971) might add a new drug to the proscribed list of substances. The most common form of Secondary Legislation are Statutory Instruments. Around 3,500 of these are passed every single year.

Although Secondary Legislation is scrutinised by the House of Lords, by convention it only votes against it in ‘exceptional circumstances’. This was another reason why the rejection of Tax Credits cuts by the House of Lords in 2015 was so controversial.

6. The Great Offices of State

It is now an accepted convention that the Great Offices of State will be filled from the House of Commons. The Great Offices of State are: Prime Minister, Foreign Secretary, Home Secretary and Chancellor of the Exchequer. 

The last member of the House of Lords to hold one of the Great Offices of State was Lord Carrington. Between 1979 and 1982 Lord Carrington was Foreign Secretary but resigned in 1982 citing the convention of Individual Ministerial Responsibility for failing to recognise the Argentinian threat to the Falkland Islands.

The last Prime Minister to govern from the House of Lords was the Marquess of Salisbury in 1902. It is now unthinkable that a Prime Minister could govern from the House of Lords because they would avoid direct scrutiny from the representatives of the the people.

7. Representative Function

The fact that the House of Commons contains the elected representatives of the people gives it a greater legitimacy than the House of Lords. Although the House of Lords contains a number of very eminent and respected figures, the fact that their judgement and performance cannot be held to account by the electorate reduces their political mandate.