What if the Prime Minister deliberately broke the law over extending Article 50?

7th September 2019

There is, it seems, a serious suggestion that the Prime Minister would break the law rather than request or accept any extension to the Article 50 period.

By way of background the United Kingdom is, of course, set to leave the European Union by automatic operation of law on 31 October 2019.

There is, however, legislation about to be enacted that would oblige the Prime Minister to seek or agree to any extension to the Article 50 period.

The current Prime Minister Boris Johnson is quoted as saying:

“They just passed a law that would force me to beg Brussels for an extension to the Brexit deadline. This is something I will never do.”

And asked if this meant he would disobey the law, he is reported as saying:

“I will not. I don’t want a delay.”

*

Well.

Some news reports state that a senior politician states the legal consequence of such a breach would be little more than “contempt of parliament” and that he would be a “martyr”.

Another news source has suggested he is merely “goading” parliament for a possible “impeachment”.

In fact and at law, it would be far more serious than that.

*

A prime minister holds public office.

As such a prime minister comes within the scope of the criminal offence of misconduct in public office (read all you need to know here).

For any public servant to deliberately seek to breach the law (as opposed to say, creatively comply with it or find a loophole to avoid it) would be (on the face of it) misconduct under this offence.

If all the elements are made out of the offence then there would be a criminal conviction and a sentence, which can be up to life imprisonment.

Also caught would be any person, even if not a public official, who conspired, assisted or encouraged the offence (this can be shown by the Operation Elveden prosecutions).  

This could thereby catch any aides or advisors who had sought to facilitate the principal offence.

And that would not be the end of the legal peril.

*

There is also the tort of misfeasance in public office where, if Johnson or any other public servant was held to be a tortfeasor (a lovely legal word, which Johnson would otherwise no doubt enjoy) then there would be liability in damages for losses that were caused by the unlawful action.

In respect of the losses which would be caused to companies and individuals by a No Deal Brexit forced by the wrong such damages would be likely to be colossal.

This would be in addition to, or separate from, any criminal liability – an offence does not have to have been prosecuted for the tort to be made out.

The criminal offences and the tortious liability would be in the personal capacity of those found liable.

*

This would be in addition to any legal sanction (such as imprisonment for contempt of court) for breach of an injunction and/or mandatory order obliging Johnson and others to comply with the law.  

*

All the above is not because the Prime Minister has any special status: it is just the law treating him as any other public servant.

The Prime Minister is not above the law.

No doubt the talk so far is not to be taken seriously, and that there is no real possibility that the Prime Minister and others will conspire to break the criminal law, break any court orders, and commit a tort which will cause devastating losses to millions of people and thousands of companies.

It is surely just bravado, to impress reporters and political supporters.

But if it not bombast and bluster then all those involved had better get some jolly good criminal and civil defence lawyers.

Because, unlike – say – breaches of referendum spending and campaigning laws, breaking these laws will have serious consequences.

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Comments are welcome but pre-moderated, and they will not be published if irksome.

 

71 thoughts on “What if the Prime Minister deliberately broke the law over extending Article 50?”

    1. I assume if Boris Johnson tendered his resignation to the Queen, then she would be obliged to appoint a new Prime Minister, even if it’s just as a caretaker role pending a general election. As I understand the British constitution, then I seem to recall that the country is never without a government in that sense. The Prime Minister remains the Prime Minister even during an election. For example, Gordon Brown remained PM until David Cameron was appointed on the 11th May, which was several days after the General Election.

      That means any new Prime Minister appointed would be obliged to follow the law of applying for an extension. Presumably that means only those willing to follow the law in this respect would be willing to accept the role of Prime Minister. It seems highly doubtful that this caretaker PM would command a majority in the current house and would lose a vote of no confidence (and a GE follow as there would be now alternative individual who could), but by then the process of asking for an extension would have been carried out, or at least be in that process, even if it ran from a GE campaign.

  1. If the Prime Minister were to break the law, would this be open to a private prosecution? The CPA do seem to have a somewhat establishment-friendly view of what is “in the public interest,” so one wonders whether they would pursue this themselves.

    “Irksome” is not quite as delicious a word as “tortfeasor,” but one which is much easier to crowbar into conversations. I’m making a note to use it more, especially in this context. It’s rather lovely there.

  2. Whatever the Law, will British judges ever condemn a Prime Minister (criminal or civil)? Or will some sort of « raison d’état » be invoked?

  3. Question is:

    Can he reliably avoid it so to force no deal?

    Assume he’s willing to pay the full price….

    Will parliament have enough time & solutions to solve it?

  4. What are the legal implications for the EU27 if the PM refuses to extend article 50 and we pass the 31st Oct deadline?

    Are we out?
    Is the Article 50 notification under any doubt?

    1. There would be a very good argument that the PM was acting non-constitutionally in not applying for an extension. As article 50 requires that the member country’s constitutional laws have to be followed, then it might just be possible that there could be some sort of fudge of the EU unilaterally providing an extension. This is all completely untested waters of course, and would have massive implications for the administering of UK law with regards to relations to the rest of Europe.

      1. My understanding of that provision (Art 50(1)) is that it applies strictly to the procedure applied by the exiting member state prior to submitting its Article 50 notification (of intention to withdraw).
        Article 50 is silent as to the necessity of constitutional propriety covering every act/step of the Art 50 procedure up to departure day.

    2. Yes, we are out.

      We are also out (with “no deal”) if the Prime Minister of Malta (representing a population only slightly exceeding the metropolitan area of Stoke) has a strop over the absurd state of British politics and refuses to consent to another extension of the ‘Article 50’ negotiation period.
      #TakeBackControl

  5. I’m hoping Johnson believes that he is beyond the law, carries this out, gets arrested and put away for a long time.
    He’s a danger to democracy and all that is decent in this country!

  6. I do wonder/fear whether one workaround for the Johnson regime is to invoke the powers set out in the Civil Contingencies Act 2004, via a weird contortion of the a ministerial interpretation of what an “emergency” means under the Act, to set regulations to the effect that an extension cannot be sought, in order to prevent that “emergency”.

    I wonder/fear this especially because the CCA is the Act in use for some of the No Deal preparations undertaken taken to date, through the Local Resilience Forums and the instruction provided to them by government.

  7. I asked a few government legal service lawyers (not involved directly with current events) their personal view yesterday and they think the pm can and may well do this with any attempted legal consequences being ignored. It is the reverse of the old question asked in interviews at treasury solicitors……. ‘can the UK pull out of the echr?’. The ‘right’ answer was apparently you can’t because of how it’s embedded in precedent in case law. But that presupposes the government of the day couldn’t or wouldn’t seek to fundamentally change the balance of power and legal system. We are now at a point where anything is in play and the spluttering outrage cuts no ice with a majority of the electorate so anything up to and including ignoring the law is in play.

  8. The drawback of suing the current Prime Minister and others for enormous damages is surely the old expression “not worth powder and shot” – the likely amount which could be recovered is enough to by a few bottles of his favourite Italian wine.

  9. Could Johnson and Cummings played it any worse? A few days ago all the talk was about how difficult it would be to stop crashing out, now the PM is the one potentially crashing out.

  10. Thank you for this. I have a couple of questions! If Johnson does indeed break the law in respect of the Bill (refusal to ask/accept an extension AND doesn’t resign), who / what would bring a criminal case against him? Also, given the bar for a claim(s) via Tort Law is considerably lower than that of Criminal Law, who / what would be the petitioners? Would all businesses / individuals have a case if the tortuous (? wording!) act was legally found to lead to a no-deal brexit AND obviously had caused injury (financial, healthwise etc.) in some way?

  11. Could the EU act on the basis of the new law, interpreting it as the UK effectively requesting an extension to 31 Jan 2020, in the absence of a withdrawal agreement on 19 Oct 2019? If the EU then “automatically” offered the extension, without waiting for the “formality” of the UK Govt officially requesting it, and announced it as fact that the UK would remain an EU member state until the new date, could that effectively block Johnson and co. pro tem?

  12. The potential for politicians to be prosecuted in this way got me thinking. How would a Royal Pardon affect the eligibility of someone to run for Parliament? If an MP is convicted of a crime and receives a sufficiently long custodial sentence they can be removed from office. Does a pardon override that?

    Also, although it is officially a Royal power, pardons are in the gift of the Lord Chancellor. Are there any checks and balances if they recommend to the Queen that a politician (say, the PM who appointed them to the role) be pardoned for misconduct in public office?

    Apologies for any butchering of the law in the above comment.

  13. Tortfeasor is indeed a great legal term.
    Perhaps someone will torment Boris with Mandi’s takeaways if he doesn’t live up to his bravado.

  14. Dear David,
    Re : “By way of background the United Kingdom is, of course, set to leave the European Union by automatic operation of law on 31 October 2019.”
    I presume that this automatic operation of law is now annulled by the new bill, as adopted over the past few days ?
    Thanks and best
    Kurt

  15. First, thank you Mr Allen Green for your analysis.

    I’m concerned as to what will happen in the country if Mr Johnson breaks the law. The more boisterous elements on the left will have no trouble in saying if the law doesn’t apply to Mr Johnson, the law shouldn’t apply to them. A Bullingdon Boy Day of Anarchy; fight back against the entitled, arrogance of the rich (etc).

    Indeed, I’m at Downing Street now and, unlike previous demos, there are young men dressed in black with handkerchiefs to cover their faces.

    The boisterous right have already been incited. If Mr Johnson lights to touchpaper, there could be violence between these groups.

  16. If Boris refuses, can his deputy? Would it be likely that the EU would accept a proxy, given that parliament has endorsed the request to delay?

  17. Wouldn’t this be more likely to be (and better) dealt with as a contempt issue?

    Boris says he won’t follow the law, then you go to court to get a court order ordering to him to do so (as someone who will suffer loss if he doesn’t) and if he defies the injunction then his in for contempt?

    It avoids discussions about whether Johnson was doing the right thing, it’s strict-liability, it can be obtained quickly.

    Not sure whether a sitting PM can remain PM whilst behind bars – but I’m pretty sure we’d be in VONC territory by then anyway.

  18. I have read a number of constitutional experts claiming that it would be entirely legitimate for the PM to advise HM to withhold Royal Assent, and that HM would have no option but to follow this advice….do you think this has any validity ?

  19. As a Leaver …

    1. He could say the bill is unconstitutional and he is not obliged to follow the instruction. If Parliament passed a law that required him to do something illegal, he would clearly not be obliged to do it. The letter would require the government to spend money, and Parliament cannot do this, hence he is no required to do it. I’d support this.

    2. He could find a ‘legitimate’ reason to refuse. He has told Parliament he will not do it, and offered them a vote of no confidence. They declined, hence he in effect has their permission to not do it. The proper constitutional solution is a vonc. The fact that the extensions is looming is legally neither here not there. I’d support this.

    3. He could find a ‘non-legitimate reason’ not to do it. eg he could present the letter then as a member of the EU could veto it. I’d not support this as it hands a moral imperative to people who don’t deserve it.

    4. He could resign. I think stating in Parliament that this is a letter of surrender, that it ends centuries of sovereignty and independence that our forefathers gave their lives for, this is a Parliament of Shame for voting it through, I will not do it but you, Jeremy Corbyn, this is your letter, so why don’t you go and hand over the formal surrender, would just about hit the nail on the head. I’d support this.

    People who attack Johnson for being Johnson are missing something basic. I don’t support Boris Johnson because I really like his injudicious articles, exaggerations and falsehoods, provocative words, and chaotic personality. I support him because he is the last man standing who believes my vote and the vote of 17.4 million others matter, that the promises made by politicians in their manifestos and personal statements matter. If he goes, I have no-one left to stand up for me. I am just meat on the plate of a European Union who care nothing about me or my family and don’t feel the need to justify themselves to me, and will just take without restraint. Millions of other people feel like me. The absolute rage and fury of many people I know (socially, not through political allegiance) is tangible.

    1. Your first three arguments miss the point: the Benn Bill will pass into law on Monday ergo it is constitutional. Secondly, a statement of intent to break the law does not grant one impunity to do it, nor does it free one from the consequences of such an act. Thirdly, such a strategem would put him in flagrant breach of the law, since (if he fails to get a deal on 17/10 or persuade the Commons to approve a “no deal exit” instead) the new law requires him to ask the EU for an extension. Fourthly, he could resign as an indiviual, but responsibility would then pass to whomever follows him (from his cabinet). He can only trigger a GE currently by collapsing his government through a no confidence vote and if no alternative adminstration can be foremed within 14 days.

      Lastly, you can only surrender in war – we are not at war with the EU and, indeed, it has shown us considerable tollerance and patience. The UK is, was and always will be a sovereign nation – your failure to understand this does not change the fact. May tried to deliver Brexit and (originally) had the majority to do it. Even after the 2017 GE, if the ERG had backed her, we would almost certainly be out of the EU. Brexit has been delayed (and hopefully stopped) not by remain minded politicians, but by Brixiteers themselves.

      1. No on two counts. Parliament cannot simply pass any old law and it automatically becomes constitutional. It cannot pass a law that, for instance, breaks the Human Rights Act. Secondly, I find it hard to think how a law can compel someone to do something. There could be all sorts of reasons why someone doesn’t choose to do something. I think Johnson could not do it and then, when he gets taken to court, come up with all sorts of reasons why he didn’t feel he had to comply and that Parliament had opportunities to act through a vonc.

        1. The Commons and the House of Lords determine what the laws of the land are. If they determine that a bill should be passed and it receives the Royal Assent, that, by definition, is constitutional. I am sure DAG would know better than I, but I don’t think that you could challenge a new statute at the ECHR since it is a matter for a sovereign parliament and ECHR would have no jurisdiction. Mrs May, if you recall, was keen to withdraw the UK from the ECHR and its competences. I am sorry, but what you are saying is simply wrong. You may strenuously object on time limits for abortions (on either side of the argument), for instance, but if you act on your ethical position and it conflicts with the law (as written) you will find yourself liable to prosecution. Parliament is sovereign and it decides if laws set forth by government (or in this case backbenchers) make it to the statute or not. We, and Mr Johnson, are bound to uphold the law, or suffer the consequences of breaking it – DAG pointed this out in the article above.

        2. “It cannot pass a law that, for instance, breaks the Human Rights Act.”

          Untrue. It can, what will happen is that the judges asked to make rulings based on it will simply state that it is inconsistent with the ECHR. There is no such thing as an “unconstitutional law” that legitimately passes all the relevant stages of law-making. We are not the United States.

          “I find it hard to think how a law can compel someone to do something”

          Really? Try withholding your taxes from HMRC and see what happens.

        3. Surely the key point made by Lord Hoffmann in Simms is that the sovereignty of Parliament means it can pass laws contrary to The Human Rights Act. However, it has to be absolutely clear in its intent.

        4. Thank heavens for you, Dipper. I agree wholeheartedly. I’m sure it would be possible for Johnson to be prosecuted, but the extraordinary law is an outrage in the first place, and the ad hominem attacks against Johnson (and even Cummings) are all prompted by one thing, and one thing only, which is their stand on Brexit.

    2. There have been many, many Acts of Parliament that I have very strongly disagreed.

      I do think however that it is a very slippery slope for the Prime Minister to decide to deliberately break the law, particularly in such a public way.

      I would also note that if ignoring the law and the constitution is established as a precedent you may well find yourself in the future full of rage as a future Prime Minister you disagree with decides to break the law too.

    3. Believe me, Dipper, the ‘absolute rage and fury’ of the many people that you know is as nothing compared with the absolute rage and fury of the far more people that I know, as Leavers try to strip us of our rights and protections as European citizens. Some of us are being forced to apply to remain in our own homes, watching our successful businesses go down the toilet, fearing the loss of our ongoing healthcare. I’d dial back the rhetoric if I were you. and BTW: the EU has been caring for you and your family for decades – you should show a little gratitude.

      1. I’m sorry this pickle has caused problems for you and others, but I feel strongly that this is not a fight of my choosing, and that I’m effectively being blackmailed into accepting onerous terms and conditions that give foreign nations a degree of control over my country I believe is unjustified and inappropriate.

        Like most Brexiteers, I’m here for a deal. Restrictions on FOM would have got my vote. I thought it was not a lot to ask, but the EU thought differently.

    4. “I support him because he is the last man standing who believes my vote and the vote of 17.4 million others matter, that the promises made by politicians in their manifestos and personal statements matter. If he goes, I have no-one left to stand up for me.”

      So what happens next?

      I think a lot of remainers have no idea what they’re doing. Pulling all these tricks to block things happening isn’t going to make leavers give up. It isn’t like a court case where it’s all over. It doesn’t mean they win. It means leavers will harden against them.

      If the Conservatives fail to deliver, the party will be wiped out. We’ll get Brexit Party as the party of the right. And they’ll not only aim to deliver Brexit, but then they’ll wipe out the current establishment, too.

    5. Dipper: Others have looked at your arguments, which I will therefore not address. What I want to know is how on earth have you managed to get yourself into the mental space you are in? How did you manage to conclude that “I am just meat on the plate of a European Union”? Where does that kind of language come from? It’s just bizarre. What do you imagine you would find if you crossed the Channel? Some kind of dictatorship or something? One percent of the national budget goes to the EU, of which membership is voluntary for states, and “you are meat on their plate”? (That’s before we even discuss the value we get for our small financial contribution.) It’s nonsensical. This is all very sad. How did it come to this, that so many people feel something so strongly, that would – in any other context – be worthy of a light/humorous response? Dipper, if you and I were to sit down and chat about this would you come across otherwise as a rational person, or do you hold lots of other beliefs that defy rationalisation? Maybe we all do – but then how on earth has our democratic system survived so long? Of one thing I am sure, until a few more people like Dipper can be saved from the scary mental world into which they have descended (or been plunged) we are not going to see the back of all this trouble.

  20. There is one other possibility: Boris Johnson could be lying. I know this suggestion will be a shock to many people.

    I think the chances of him resigning and becoming our shortest-serving Prime Minister are very low. I also think he is highly unlikely to take the legal risk of breaking the law.

    Which leaves us with him going along with Parliament and requesting an extension.

    1. The key electoral reality is that we are here because the Brexit Party destroyed the Conservative Party position at the Euro election, and if that were to be repeated in the forthcoming General Election the Tories will be destroyed again. If on the other hand the Tories can neutralise The Brexit Party either through leaving, or through a pact, then it is quite likely that the Tories will win the next General election as the Lib Dems and Labour are unlikely to agree a pact.

      If Johnson remains as PM and goes back on his promise to leave, then he loses the GE. If he finds a way of leaving with No Deal, he wins. If he resigns, he may win. If he leaves with a version of May’s deal, he probably loses.

      Dominic Cummings knows all this and more better than anyone. He is focus-grouping like mad.

      1. You think Johnson would “win” if he managed to leave without a deal? And as the recession bites, what would that “winning” look like exactly? You may be right, that sometimes people have to learn the hard way, but they do learn in time, and at that point Johnson would be toast. When people realise they have been taken for mugs, they tend not to take it very well, especially when it is their livelihoods that go down the drain. No opinion poll has suggested any appetite on the part of the British people to pay a price for Brexit. When the job losses start, you think this is going to swing around the other way? If you get your way then I guess we’ll see.

    2. I would respectfully put it the other way around: if Boris Johnson resigns as PM he lives to fight another day, but if he accedes to an extension he is finished, politically, among his natural suporters.

      This suggests, to me, that he will resign shortly.

  21. Thanks for clarification…it seemed to me that legally he must be accountable but never thought of the duty of a public servant!

  22. What is to stop Johnson breaking the law but asking the Queen to pardon him in advance, on grounds this law is compelling him to do something against his human right?

  23. Johnson says that he would not “beg” the EU for an extension. Does that mean that he would not “ask” for and extension, or would refuse one if offered?

  24. Could the Prime minister also be disciplined by the conservative party for breaches of the code of conduct for conservative party representatives if the proper complaints procedure was followed as defined in the document “CODE OF PRACTICE FOR FOR CONSERVATIVE PARTY REPRESENTATIVES”. He seems to be in breach ofmany articles of this Can he still be Prime Minister if expelled from the party?

  25. Very informative. It raises 3 questions for me:

    1. The criminal case can only be brought if the CPS and police proceed with investigation – given the long delay in response to the leave campaign by the met, is there a risk – Hillsborough style – that things take decades rather than as they should months?

    2. Given (1) is it possible to bring the civil case prior to the criminal determination? This takes it out of the hands of the CPS so would be a much more immediate deterrent

    3. Given, if enacted, the misconduct in public office sanctions are robust but electoral law breach sanctions seems to be insufficient deterrent, how difficult would it be if a majority of MPs agreed it, to extend the misconduct in public office scope to include misconduct in the acquisition of public office?

  26. Given the immense and far-reaching damage that could be caused by Boris slipping his leash and charging heedlessly into Brexit, like Fenton the labrador after a herd of deer, what would be the mechanics for a civil action?

    Obviously Boris’ fortune wouldn’t remotely cover the potential financial losses of a gung-ho, no-deal Brexit. Since he would be undertaking this illegal action in his capacity as prime minisiter, would companies be able to hold the UK liable for compensation?

    What about individuals? Hypothetically, if someone could prove that they lost their job, failed to get their medication, or suffered some other credible misfortune as a result of Brexit, would they be able to pursue a civil action against Boris?

    If so, then how would that work, taking into account the sheer number of cases that would have to be heard?

    I can imagine PPI-style adverts on daytime TV, years from now, warning people that the deadline for suing Boris will shortly expire. Is any of this plausible?

  27. What about if before the Bill receives royal accent, he recommends to the Queen the Bill is not in the UK’s best interest. And advises she refuse royal accent. He can legitimately argue that he has the confidence of parliament, having made his intentions clear all along, offered the GE opportunity, which they have refused. He can also say that parliament could object to this position at any time by calling a vote of no confidence – which he can easily lose now he has (deliberately?) lost his majority. He gets his GE.

    Furthermore, the issue of the prorogation will then come into play, in delaying any parliamentary action to mid October, by which time the date may just expire through lack of time. I can’t see the logic in proroguing parliament, if the plan was to call a GE all along, so maybe this fits.

    No laws broken in the process, and parliament is forced in bringing the GE forward if they don’t agree with what has been recommended to the Queen.

  28. “tortfeasor … liability in damages for losses that were caused by the unlawful action.”

    But that presupposes the EU27 would have agreed an extension if the PM had asked for one. That each of the 27 heads of state would have said yes, since it must be unanimous. Would each head be subpoenaed to testify?

  29. What if the PM delayed Royal Assent. He announces it to parliament on Monday citing reasons e.g. the Speaker was wrong about Royal Consent, the revelations of collaboration between Remainer MPs with the EU, etc. And then brings forward a government motion of no confidence, one in which the Tory MPs abstain?

    If the opposition parties vote down the VoNC it approves of the government action. If they pass the VoNC they will have a few hours to form a new government (which won’t happen) before parliament is prorogued. Two weeks later the PM calls a GE (maybe on 5th Nov).

  30. Brexit will happen on the 31st October and on the 1st November I am going to revisit this page with a large glass of wine. And laugh.

  31. Could the House of Commons expel Mr Johnson for contempt of Parliament if he does not seek to obtain the extension to art.50 as mandated by the Benn Bill? No need to involve the courts then.

  32. Mulling Brexit here in Tartu, in the small and earnest and rather anglophile EU member state of Estonia, at a latitude a degree or so north of Aberdeen, and at a longitude approx 27 degrees east of Greenwich.

    PM Johnson seems desperate. Like any cornered person, he may now prove a little dangerous. What if he next tries, by way of a desperate stunt, a tactical resignation, by bringing a confidence motion against his own Govt? He may calculate that if it is not his own Govt but its successor that asks for a Brexit extension in October of 2019, then the Conservative Party will escape at least some of the blame, in the eyes of at least some voters, and will therefore garner at least some votes in the inevitable 2019 or 2020 general election.

    What can be done, as this peril looms? Or, to put in it a Tom Lehrer, or equivalently in a Hollywood Soviet-Estonian, accent, “Ziss I know from NOSSing. VOTT I am goink to DO?” But then, while crossing Cathedral Hill after church here in Tartu this afternoon (2019-09-08), I had an idea – “I sink of old Estonian resistants movement and I häff idea….haHAAAA begins za fun.”

    So here is my idea.

    It is occasionally helpful to make people look ridiculous, at any rate if this can be done with due courtesy. If PM Johnson tries his disingenuous confidence-motion stunt, then I respectfully submit that the right thing will be for everyone who is civically minded – Labour, LibDems, Independents, SNP, anyone else sufficiently public-minded to clamber on board – not to vote for or against the tainted confidence motion, but simply to ABSTAIN. We will then have a comedy turn at Westminster, with pretty much nobody except the Conservatives themselves voting to bring down a Conservative government. If the British have retained their celebrated sense of humour, this will trigger mirth, to PM Johnson’s ultimate detriment.

    PS: Illustrative snapshot, re humour in politics: I believe that around the start of the Big 1944-1991 Sovvo Occupation here in Estonia, the Political Instructor used to orate about “Stalini suur asi”, or “Stalin’s Big Thing”. (This sounds as inept in Estonian as it does in English.) I have the vague impression that people got the idea of saying, ever so politely, at the start of the politruk’s compulsory class, “Tere hommikust, seltismees politruk. Kuidas on Stalin suur asi?* – “Good morning, Comrade Political Instructor. How is Stalin’s Big Thing?”

    PPS: Further illustration of this type of tactic: Composer Veljo Tormis wrote a cantata proclaiming the inalienable right of nationalities to self-determination. It proved difficult for the Party to tackle this little bit of insubordination, because the libretto was patched together from the actual speeches of V.I.Lenin, by means of direct quotation.

  33. Allen:
    Your analysis is obviously correct; but there can be no confidence that the PM’s Cardinal Cummings will ever accept that they might apply to him as an accessory before the fact. One can have little confidence that Boris himself will be constrained by mere law. His many breaches of the referendum law in 2016 have, as he sees it, been without consequence and he may well believe that his sacred quest will justify anything. “Dead in a ditch” indeed.

    Corbyn’s Proposal for a limited mandate government of national unity to get the EU agreement for an extension in place before October 31 and then leading to an immediate election seems like the best course on offer. The prospect of fresh troubles in Northern Ireland (or a unification referendum under the Good Friday terms) and the increasingly likely separation of Scotland, should also concentrate the minds of all Britons.

    Please keep up the good work.

    Regards
    Richard B. Jones

  34. I hope he does it. He can sit in prison while the clock runs down, and we send him bottles of Chateau Petrus and lobster to make his stay more comfortable.

    Then he can resign, and we’ll have a new PM. Who can pardon him. And it’ll be funny to watch the outrage of the lefty liberals over this who didn’t say a word as IRA bombers were set free.

    1. Yes was thinking this.

      “This letter is a surrender bill in all bit name. It is a shameful and humiliating letter that no person who cares about this country can ever send. No-one who has answered the Queen’s call to be her Prime Minister could ever send a letter begging other nations to dictate terms to her country. I made it clear to this house and the nation I would never send this letter. I offered you a vote of no confidence and you refused. You law has no legitimacy in the nation. It was not in any manifesto, has no precedent, and in my opinion is an outrage. For the good of all in this nation and for our children and their children I will not send this letter. If that means I go to prison, so be it.”

  35. Is there any jurisprudence that the Prime Minister would indeed be open to an action for misconduct in public office over an action for which he would, presumably, otherwise hold sovereign immunity?

    It was touted around a lot about Blair, but never tested.

    Let’s throw out a hypothetical – could Cameron, for example, be prosecuted for misconduct in public office over the killing of Jihadi John? While the historic immunity for all acts taken as exercise of the prerogative may well have complied over the years – there’s little doubt that the general position is that international relations are within the remit of the Prime Minister, and while it may make you feel good to think that the state must at all time act within the law, the caselaw on this varies – for example the decision in Pinochet specifically commented that “It is not enough to say that it cannot be part of the functions of the head of state to commit a crime. Actions which are criminal under the local law can still have been done officially and therefore give rise to immunity ratione materiae.”

    So, I think you’ve developed a conclusion without questioning your base principle – is the Prime-Minister even liable for prosecution for misconduct in public office for acts taken in exercise of his duty?

  36. There is no need for him to break the law. He can as for an extension but make it so unpalatable that the EU won´t grant. Telling them they refuse to pay any more subscription payments (i.e. 1 billion a month) after 31st October should pretty much do it.

  37. A problem is surely that our judges are already appearing to condone the shutting down of parliament. One is thus tempted to believe that they might also decline to impose the kind of penalty on Johnson that they’d mete out to a lesser man than the PM. Perhaps the only hope is the remorse that occasionally seems to affect football referees who, having erred in punishing a player, then proceed to compensate by taking it out on the next player from the opposite team who does something doubtful.

  38. Dear DAG: Law academic here. Unfortunately not in public or constitutional law, but– of course, given current circumstances– in regular conversation with those who are.

    First of all, thanks for all your good work. And hope you’re looking after yourself. Everyone I know is feeling very stressed and worried just now.

    Substantively: I think we need to keep this relatively simple. At the end of the Today programme this morning, they asked two people specifically for their *legal* opinion– Will Hutton and Andrew Roberts. Neither of whom, of course, is a lawyer. Real lawyers have to try, as loudly and repeatedly as possible, to make the real legal situation as clear as possible. (As, to be fair to Today, Lord Sumption did earlier in the programme.)

    As I see it, the main thing is that for Mr Johnson to refuse to obey the Act (as it will soon be) could and would immediately lead to an urgent application to the court for an injunction, and the court would grant the injunction very swiftly.

    [I wonder whether it might even be possible to get a ‘quia timet’ injunction or a declaration beforehand; but, in the spirit of keeping it simple, will leave that for the moment.]

    There would be no lengthy series of appeals; SC would refuse permission to appeal, because this is, in legal terms, a very simple case. The Act is very clear as to what must be done, when, and by whom. The reasons why the idea currently being floated, of sending a second letter countermanding the first, would not work in law are obvious, but you should spell them out.

    As in any other urgent situation, the court order would state a short time limit; and, if Mr Johnson didn’t obey the order, he would be in contempt of court, max 2 years in prison. The court might also (check on this) order that some other person could lawfully send the letter instead of the PM.

    Addressing a point raised by some commenters: Mr Johnson’s time in prison for contempt would give ample time to prepare and bring a prosecution for the criminal offence of misconduct in public office. (Thanks for pointing this out, and providing the link to CPS guidance.)

    I’m not entirely sure about the tort, though, and would like to see this discussed further by experts.

    In any event, the main thing is to make sure everybody understands the one which is a dead cert: contempt. There are no “legal loopholes” here. And, from the court’s point of view, this is not ‘a political matter’. The court knows that it is not there to pass political judgments on whether or not legislation should be enforced; the legislation says X, and the intention is unambiguous, so the court will enforce X. That is one of the things that ‘parliamentary sovereignty’ means.

    If we get out of this crisis, we will need urgently to address (amongst a lot of other things) the extent of public misunderstanding of our constitution and legal system. Another reason for you to look after yourself, DAG– we’ll be needing you for years to come.

  39. I don’t get the problem of a second letter. Is the government not allow a different view of Brexit from parliament? Given that parliament has only ever said what it doesn’t want, never what it does?

    And is the government not allowed to spell out how it will use any extension – refuse to appoint a commissioner, use its veto etc.

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