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A Government of Laws

September 7th, 2019

A week is a long time in politics, as Harold Wilson reportedly said. This last week has been one such.

On Sunday Michael Gove refused, explicitly, to say that the Government would abide by any law passed in Parliament to rule out a disorderly Brexit, describing such a law as “a pig in a poke”.

During Tuesday’s debate when Gove’s pig in a poke – or the European Union (Withdrawal) (No. 6) Bill – made an appearance, Johnson confirmed that he would obey the law if Parliament passed a bill rejecting a no-deal Brexit. Just as well given that as an MP he has sworn an oath of allegiance containing the phrase “according to law“.

That Bill will become law on Monday. It obliges the Prime Minister, in the eventuality that no withdrawal agreement has been agreed with the EU, to seek an extension from the EU of Article 50 in the terms set out in the Act, prior to 19 October.

The request is for an extension until 31 January 2020, though the EU is not obliged to agree this period and could offer a longer or shorter extension or, indeed none at all. But as far as the PM is concerned he is legally obliged to send the request, as prescribed by the Act.

On Thursday the Prime Minister announced in in Yorkshire that he would rather be “dead in a ditch  than delay Brexit. His policy is to leave the EU, regardless of any deal, on 31 October when the Article 50 period, as already extended, expires.

Still that was then. Now there is a law saying that he cannot do this. “I want doesn’t get.” as Jacob’s nanny might have said. He can get a withdrawal agreement or he has to ask for an extension. Whatever he may have wanted to do before the law came into force is irrelevant. Tricky little beggars these laws. So one would expect him to dial back the “die in a ditch” language. After all, his overriding obligation is to uphold the laws of the land.

And if he is unsure about what that means, surely his Attorney-General could advise him. Geoffrey Cox QC might also find time to inform the Prime Minister that he has the power to overrule government decisions, if necessary. (And of course he is directly answerable to Parliament about the advice he gives the government.  Or he would be had the government not ensured that none of its members could be held accountable for their actions during this period.)

Perhaps Boris and Geoffrey, busy people that they are, have not yet managed to speak. What else can explain this message sent to the party faithful after the Bill passed? The Prime Minister states that even though the law tells him to “beg” Brussels for an extension, “This is something I will never do.” It is hard to read this as anything other than a statement of his intention to defy the law.

The politics of what he is saying is unremarkable and, from a Brexiteer perspective, understandable. This is not his policy. He does not want to do this. He wants his voters to know this. He wants to blame the opposition for the delay. He is determined to achieve Brexit no matter what. He hopes to profit electorally from this. And, if so, he will be in government for another 5 years, intending to make Brexit work and, presumably, also expecting others to follow the laws his government implements.

But Boris Johnson is not simply leader of the Tory party. He is Prime Minister of the United Kingdom, a country which has always prided itself (and one hopes continues to do so) on having respect for the rule of law, on the belief that “Be you ever so high, the law is above you”, a saying which dates back to 1733 and which in its essential principles goes back to Magna Carta.

It is quite remarkable that a British Prime Minister, a Conservative Prime Minister, would think it acceptable or worthwhile to announce his intention not to comply with a law which has properly been passed by Parliament. He can complain about it; he can rail against it; he can try to reverse it. But to say that he will ignore it, that he will defy the law is an extraordinary development.

(Even more bizarre is his attempt, if recent reports are to be believed, to try and use Royal Assent to blackmail the opposition into granting something which has already been defeated twice in Parliament.  This is an “I want” tantrum. If only there were the political equivalent of sending him to bed without his supper.)

What message does this send out to people living here? If the Prime Minister can ignore a law he finds distasteful or inconvenient, can others do the same? And what about those laws which protect the rights of ordinary people? Can they no longer be relied upon? Might the government choose to ignore those laws too?

What message does the government think that the world outside Britain will take from such a statement? They might wonder whether Britain’s political class has lost a sense of perspective, has forgotten one of Britain’s most important USPs. They might wonder whether this is a country in which it is wise to invest, at least at the moment. (Those who have invested here will certainly be consulting their lawyers about the claims that might be brought against a government which deliberately embarks on an unlawful action.) They might consider whether there is now a level of political risk and instability in this country by comparison with others.  Boris is, after all, not the only leading politician who has expressed contempt for the rule of law.

Perhaps this is all a fuss about nothing. Perhaps this is simply a colourful statement by Boris, of a type familiar to those who read his columns. Perhaps.  Or perhaps not, according to this report, stating that he thinks that he is only bound “in theory” by the law. That’s a concept well known to most fraudsters. Unusual, though, to see it embraced by a Prime Minister.

At any event, if no agreement with the EU can be reached about the terms of withdrawal by 19th October,  he faces four options:-

  1. Losing face and asking for an extension.
  2. Refusing to comply with the law and facing the prospect of being overruled by his own Attorney-General.  Quite how a minority government could survive in such circumstances is unclear.  Would the Attorney-General resign if his advice were ignored?  Would other Cabinet Ministers do so?  A government which deliberately embarks on illegality surely deserves not to survive.
  3. Refusing to comply and facing Parliamentary action by opposition parties.
  4. Resigning and letting someone else send the letter.

Government legal advisors are rarely at the forefront of political events.  But when they are, their words and decisions can be deadly.  Long before Cox’s advice in March sank Mrs May’s hopes of persuading MPs to vote for her deal, the serial dismissal and forced resignations of Nixon’s senior legal advisors for not obeying his order to fire the independent prosecutor into Watergate (the Saturday Night Massacre, as it came to be known) proved to be a key stage in Nixon’s fall from grace. As the prosecutor put it: “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people.” Steps to impeach Nixon started not long after.

All the discussion so far has been about what opposition parties would and could do, about whether Parliament might be prorogued for a longer period, and about whether the EU would grant an extension anyway. It might be worth paying closer attention to what the Government’s own legal advisors say and do if it looks as if Boris is more interested in saving face than in complying with the law.

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