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Dying in a ditch

Parliament has passed a bill which forbids the Prime Minister from leaving the EU without a deal. If he is unable to come to an agreement with the EU, or if that deal is not agreed by Parliament then he has to ask the EU for an extension. What happens if he disobeys?

Is it permissible for a Prime Minister to break the law? Of course, any Prime Minister just like any other person can steal or commit fraud. If convicted the Prime Minister would be punished just like the rest of us. But the law we are talking about in this case is rather different and rather unusual.

We live in a representative democracy. We may say that sovereignty rests with the Crown and of course it does, but the Queen has little real power. The power to hire and fire Governments lies with the electorate. Ultimately this makes the people sovereign, because the people have taken over the role that at one point was assigned to a monarch. We choose who rules.

But although it would technically be possible for each individual to vote each night on a computer, we have decided that it is better to live in a representative democracy where the people choose to exercise our sovereignty only during elections. Between elections power rests with the Government.

The Government of course does not have absolute power like a medieval monarch. A Government requires a majority in Parliament to be formed at all. But once it has been formed the Government rules. Parliament can decide that it has no confidence in a Government, but Parliament does not itself rule.

What has happened in the past week has been unconstitutional. Parliament has attempted to seize power from the Government. But this is the equivalent of the people attempting to seize power from our representatives. That would require a revolution. Well, Parliament attempting to seize power from the Government is likewise a form of revolution.

If Parliament has seized power unjustly this makes any law, it passes after this seizure of power also unjust. Do we have a duty to obey unjust laws?

We have a constitution that is unwritten but is based on precedent and procedure. If precedent has been followed this week, then Parliament would not have had a chance to put forward a bill at all. It was only because the Speaker, who has also broken with the precedent to be impartial, allowed Parliament to put forward a bill, that under normal precedent would not have been permitted by the Government, that the Government finds itself apparently boxed in legally.

But if Parliament breaks with precedent and acts unconstitutionally facilitated by a Speaker who has ceased to be an impartial umpire and instead has become a co-worker with Parliament, ought the Government to obey Parliament?

Parliament has the right to say that it has no confidence in the Conservative Government, but it doesn’t have the right to tell the Government how to govern. That is not our system. Parliament has usurped its role, just as it did when it chopped off Charles the First’s head. Whichever law it passed to chop off that head was unconstitutional and therefore unjust.

Boris Johnson has expressed that he would prefer to die in a ditch than ask the EU for an extension. I hope he means what he says. We have too often heard politicians make grandiose statements that they didn’t mean. Theresa May was the prime example of this.

Civil disobedience is morally justified when a law has been made by people who have usurped power. It is also justified to break the law simply because the law is morally wrong. There are many examples of civil disobedience which history judges favourably. Sometimes it is our duty to disobey unjust laws, so long as we are willing to accept the civil consequences of doing so.

Boris Johnson will not have to die in a ditch, the ditch is metaphorical. But he will have to make a stand.

The people while voting have power. We have the power to elect Members of Parliament. We also during referendums have the power to decide Yes or No, Leave or Remain. For Parliament to disobey the result of a legal referendum is morally as unjustified as if it disobeyed the result of a General Election.

I disagree with Scottish independence, but if in 2014 Yes had won the referendum, Parliament would have had the task to fulfil the wishes of the electorate. If Parliament had failed to do it would have usurped the sovereignty that the people expressed when they voted on that day.

The same thing obviously applies to the referendum that took place in 2016. Parliament’s task was simply to fulfil the wishes of the electorate to Leave the EU. Parliament has now rejected three times the deal that Theresa May negotiated with the EU. It has completely undermined Boris Johnson’s strategy for obtaining a better deal. A strategy by the way that might just have succeeded. It now says that we can’t leave without a deal. Well if Parliament won’t vote for a deal and won’t allow us to leave without one, then it is clear that Parliament has no intention of fulfilling the wishes of the electorate expressed not only in the 2016 referendum, but in the 2017 General Election, where both Labour and Conservative manifestos promised to honour the 2016 referendum result. Parliament therefore is acting as a usurper.

If Scottish voters in a legal referendum had voted for independence and had been stopped by Parliament it would have been morally justified for Scots to have disobeyed any laws that prevented us from forming a new independent nation state.

So too it is morally justified for Boris Johnson to find that his duty lies in fulfilling the wishes of the electorate expressed both in 2016 and 2017 rather than a Parliament that has used unconstitutional means to thwart him from doing so.

He may have to face the consequences if he breaks the law. But all of us have the right to peacefully and calmly protest that Parliament is acting as a tyrant.  We look to our Prime Minister to lead “for whither thou goest, I will go; and where thou lodgest, I will lodge” Mr Johnson won’t face the consequences alone. His metaphorical ditch will be shared by seventeen million of us.

The Government can no longer govern. Its role in governing has been taken over by a Parliament that will neither dismiss the Government, appoint a new Government nor allow the people to decide the issue. It has done this by breaking with precedent, using a bent umpire and abandoning the rules by which Parliament is regulated. If Boris Johnson sides with the people and refuses to ask for an extension, he will be acting justly and in accordance with the precedent of our constitution. He will find that his ditch is rather crowed and noisy with British cheers.  Even if he were to be the shortest serving Prime Minister ever, he would be remembered forever as one of the best.

This post was originally published by the author on her personal blog: https://www.effiedeans.com/2019/09/dying-in-ditch.html

 

About Effie Deans

Profile photo of Effie Deans
Effie Deans is a pro UK blogger who works at the University of Aberdeen. She spent many years living in Russia and the Soviet Union, but came home to Scotland so as to enjoy living in a multi-party democracy! When not occupied with Scottish politics she writes fiction and thinks about theology, philosophy and Russian literature.

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2 comments

  1. Effie seems to have missed the essence of parliamentary responsibility. The legislature does not write the executive government, which in fact forms part of it, a blank chèque. It holds the government to account, and acts as a, well, check on it. To assert that Parliament has ‘usurped’ anything at all in respect of the Government is an unmitigated oxymoron. In the British polity, sovereignty is held by the Crown-in-Parliament. The Government exercises the powers of the Crown insofar as Parliament allows it to do so.

  2. In answer to Effie’s question: yes, of course a Prime Minister can break the Law. The consequences for them could be very serious. Misconduct in public office is punishable by imprisonment, potentially for life. If two or more persons agree to perpetrate an unlawful act (even though such act may not itself be criminal), then they commit the common law offence of conspiracy. This, too, can incur life imprisonment.

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