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.”
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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