19th April 2022
There was once a Scottish MP whose probing gave rise to the ‘West Lothian question’ – named after his constituency.
Now the situation of another Scottish MP gives rise to a thorny constitutional puzzle.
Ian Blackford, parliamentary leader of the Scottish National Party, was in January 2022 ordered to leave the house of commons because he called the prime minister a liar.
The effect of this stark: there is a greater sanction for a member of parliament who calls a prime minister (or other MP) a liar than there is for a prime minister (or other MP) who lies.
This cannot be right – but it is true.
One reason for this (what I will dub) Blackford Paradox is that the policing of the language used in the house – the speaker – does not have authority over the content of what is said.
The speaker can police tone, not substance.
Another reason is that – sensibly – there are rules in a legislature – as there are in a court room – about how things are said, with the aim of taking the edge off otherwise confrontational situations.
And so there are rules on when MPs can accuse other MPs of dishonesty.
Indeed, if MPs could accuse each other freely of being liars, they would probably not accuse each other of anything else.
But.
These reasons are a triumph of form over substance.
For what can you do with a dishonest prime minister (or other MP)?
There are some procedures for formally making such a serious allegation – as this blog has described before.
But they are cumbersome – and do not lead necessarily to the sanction that was meted out to Blackford.
If a minister or other MP is found to be dishonest, the sanction should be at least as onerous as that which was imposed on Blackford.
Otherwise the polity cannot stand with stability, and the Blackford Paradox will harden into a contradiction, that will exploited by knavish ministers and others.
Whatever happens with ‘Partygate’ there has to be some reform of our constitutional arrangements so that the Blackford Paradox is resolved rather than hardens.
There has to be a change so that lying to parliament is taken at least as seriously as accusing someone of lying to parliament.
And that reform can, in turn, perhaps be named after the current prime minister.
It will be one way to remember him.
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There are two reforms that I think are essential in the House of Commons:
The Speaker required to act on behalf of the nation to ensure that statements are accurate, and if wrong corrected (this would currently keep the government busy all the time);
That votes in the House are by secret ballot, underlining the importance of the independence of MP’s.
Secret voting isn’t transparent – and people might lie.
(Shocking to think of politicians lying, isn’t it?)
I’d like to get rid of parties – not just forget about them – but that’s a whole new ballgame.
Italy has secret voting in Parliament, and it leads to instability. MPs promise all sides in a dispute their vote, then deliver unpredictably.
Also, an MPs electorate are entitled to know how the MP uses the power the have given. Otherwise an MP can make promises at election,then vote quite differently for selfish reasons
This seems to me to be an excellent suggestion.
Was this a problem until Johnson came along? Would making an example of him if/when he owns up be the first move?
What should have happened when Ian Blackford was expelled from the House of Commons, is that the entire opposition should have called the Prime Minister a liar (as he manifestly was then, as now). Could the Speaker have ejected half of the members?
Like every MP, Blackford knew exactly what would happen if he called Johnson a liar and refused to withdraw. I’m sure he did so partly to make an even bigger impact as a result. Oddly though Dawn Butler did exactly the same thing six months previously and didn’t get the same attention. Her accusation was more general, whereas Blackford’s was specific to partygate. Maybe it should be called the Blackford-Butler paradox?
Ultimately it’s currently a futile gesture as the alleged liar doesn’t have to defend what was said. They can point fingers and laugh it off. In Johnson’s case everyone knows he’s a liar, the only question is whether you agree it’s acceptable behaviour or not. However I have a suggestion which might improve things.
I believe an accusation of lying is very serious and the MP concerned should be suspended for the rest of the day if they don’t withdraw it. However they should then be able to put their accusation formally to the House with supporting evidence. The accusation should be independently assessed, with the alleged liar invited to provide their own evidence in defence. There should be binding consequences for the alleged liar if it is upheld and they don’t admit the lie and apologise. If that also means the ministerial code was broken they clearly can’t be forced to resign, but the stain of being undeniably proved to have lied might be sufficient to make them do so. Someone like Johnson would not resign but it would be a flag against them that would weaken support for them over time.
The alternative, having some kind of truth police assessing every statement made for veracity, simply is not practical. The speaker certainly can’t be expected to adjudicate on the spot. Anyway, lying to the house sometimes does not become evident until after the lie has been told. Sometimes long after.
When we elect someone to represent us we agree to a term of a number of years for reasons of stability. Misuse of trust in any office is gross misconduct and, though it may not have come up before, I can’t imagine the stability argument was ever meant to provide impunity.
Perhaps it should be possible to force politicians to go back to their electors? An assembly of constituents – selected by sortition – might be convened to hear evidence of ‘gross misconduct’ in office?
An employment tribunal inevitably follows the discovery of incontrovertible evidence that an employee has been committing crimes in the office. Ministers should be no exception to being forced to answer to their employers – us – for gross misconduct if there is evidence of it that a ‘person in the street’ could reasonably see as a standard sacking offence.
“The speaker can police tone, not substance.”
I get why calling another member “an f’ing b____d” would be considered unacceptable “tone”
But I really don’t understand how pointing out, politely — i.e. so “tone” isn’t an issue — that someone has said something to parliament that is inconsistent with the known facts — e.g. someone saying something, on camera or that is otherwise minuted (e.g. in Hansard), so there’s a record — that is/was demonstrably untrue, isn’t a matter of “substance”?
The point is debates and questions can’t keep stopping and starting to check Hansard. The Speaker has to assume everyone is telling the truth, at least intending to. This was generally true until Johnson came on the scene. He is the problem, not parliament.
Partygate may well be what forces Johnson out. If he or Carrie is hit with a large fine for organising the party in his flat I don’t see how he can survive. Let’s hope so as the disrespect he brings is terribly corrosive to politics and the public perception of it.
It really should not be beyond the wit of MPs – most of them anyway – to find ways repeatedly to press the Speaker for guidance on what to do when a minister manifestly misleads the House and they aren’t allowed to say so in terms. His position is untenable, and he should be embarrassed until he either changes it or goes. Can anyone imagine Bercow putting up with Johnson? Whatever his faults he knew what his office was for.
The ministerial code says that ministers should not lie, and the Prime Minister has a duty to enforce the ministerial code.
The Patel bullying case established not only that that duty exists, but that it is justiceable.
If a public officer neglects their duty to such an extent that it amounts to abuse of the public’s trust, then that is a criminal offence known as misconduct in public office.
The lies to the House may be covered by parliamentary privilege, but the Prime Minister’s duty extends beyond and therefore neglect of that duty can and should be prosecuted.
I’m reminded of a YouTube video I saw in which it was pointed out that in Japan someone can sue another for saying something which denigrates the former’s reputation, even if it is true. Most comments expressed shock that it should be so, and yet here we have a situation which, though not the same of course, is at least comparable absurdity.
I don’t even see how it’s matter of judgement or opinion as to whether Johnson has lied – it’s so blatantly obvious now as to be surely self-evident.
Perhaps the “Blackford Paradox” can be resolved if role of the Chartist movement in shaping the current constitution of the UK and how Johnson has acquired power are taken into account.
A J P Taylor has written: “Most of the Chartists had great faith in what they called Moral Force. If [The People’s Charter-six points that summarised the traditional radical demands] were presented to parliament, together with a petition containing millions of signatures, the members would be overawed and would pass the Charter into law.” (Revolutions and Revolutionaries)
On 10 April 1848 there was a large (and peaceful) gathering of Chartists on Kennington Common. Fearing a repeat of the French revolution the Treason Felony Act 1848 was passed. Section 3 of this act, which remains in force today, makes it an offence to “overawe” MPs.
Johnson, Gove and Cummings lied to the UK public in 2016 during the EU referendum (and then again during the 2019 general election to try and get the job of Brexit done). They then presented the EU referendum result to parliament and “overawed” MPs causing them to vote to trigger the UK’s Article 50 notification.
Thus if it is understood that Johnson’s real offence is that he has “overawed” MPs to obtain the office of PM, and not lied to parliament whilst serving as the PM, then there is no “Blackford Paradox” as the criminal sanction imposed by section 3 of the Treason Felony Act 1848, now life imprisonment, is significantly greater than the sanction that has been applied to Blackford.
I don’t think s3 of the 1848 Act is very clearly worded. It certainly wouldn’t be drafted like this today. Here is the text as taken from legislation.gov.uk:
“If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty, within any part of the United Kingdom, in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty’s dominions or countries under the obeisance of her Majesty, and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing . . . . . . F1 or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable . . . . . . F2 to be transported beyond the seas for the term or his or her natural life . . . . . . F2”
The main verb relevant to the “overaweing Parliament” is that at the start of the section itself, ie: “any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen,” can that really be what the draftsman intended? The words at the end of the section:
“and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing . . . . . . F1 or by any overt act or deed,”
Seem to qualify the first part, rather than to provide a separate, substantive offence.
I’m not a criminal lawyer, but this seems like very bad drafting indeed. Especially for legislation creating an offence with such severe a penalty.
I’d be very happy to be shown I’ve got this wrong, either by textual analysis or by reference to some actual authority on the interpretation of the section.
For more information/analysis on how Section 3 of the TFA could apply to Brexit and the events following the EU referendum please see my previous comments posted on this site, including posts on 15 September 2020 at 20.26 and 26 December 2020 at 23.31.
These posts contain links to a 5-part series of articles published in the New Law Journal between 2017 and 2020. The second and the third NLJ articles are probably the most relevant to the points raised in the post above and explain how the Section 3 offence, also known as “Open and advised speaking”, was designed to oppress the Chartist movement, who campaigned for the right to vote, and how it could apply now to the Vote Leave referendum campaign slogan “We send the EU £350 million a week let’s fund our NHS instead”.
Thanks. I’ll have a look.
The current conventions did not and could not have envisaged that someone without principles would achieve the office of Prime Minister. This crisis (I am convinced it is a crisis) shows the weakness of our constitution and the lack of checks and balances.
In theory we have a constitutional monarchy, so the monarch could remove a dishonest PM, but in practice it will never happen. I have felt in the past that the monarchical role had some moderating effect in that no PM would want to mislead the Queen, but Johnson has no compunction about that.
Our FPTP system is a problem because it stifles if not eliminates the potential for change, including reframing the role and composition of the second chamber. Labour under Blair undertook to do this but stepped back.
Maybe a reformed and repurposed second chamber could play a role in a solution, but that would require a cabinet being prepared to surrender to proper oversight. It’s difficult to see how this can be solved, as once in power the current arrangements suit the government.
It feels like ancient history now, but in normal times, one might have expected a prime minster to resign after an 11-judge panel of the UK Supreme Court found, in Miller/Cherry, para 61:
“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October.” [that is, for five of the eight weeks before a proposed exit from the EU at the end of October 2019]
In normal times, there would be no need to seek a lengthy tactical prorogation of parliament, and no court case at all.
That is the way this prime minister rolls. The normal rules that apply to everyone else do not apply to him.
I was wondering about this exact point but unable to put the paradox so clearly and elegantly.
The conventions worked fine when everyone played the game. But all it took was for a charlatan to come along and reveal that conventions don’t amount to a system at all. No change of personnel will solve it, for the problem is not personal but structural.
How do other parliamentary democracies deal with this ?
Australia and India have struggled with similar problems. And haven’t really found solutions.
But what about Germany, Holland, Belgium, Scandinavia, Spain, Portugal, Greece ? Or closer to home, Ireland, Scotland or Wales ?
All these countries have a different kind of Parliament. Elected in a different way. Physically arranged in a different way.
Some would say ‘boring’.
And yes, the Westminster tradition of Prime Ministers questions was very much admired in Europe. Not just for its theatre, but for the principle of accountability.
Recent years have shown how hollow that accountability is. And how theatre has trumped truth. No tinkering with rules can really deal with the problem.
Elsewhere in the comments I made a suggestion that might help. Giving the MP accusing another of lying the opportunity to give supporting evidence and have it examined.
Not so much tinkering with the rules but giving them teeth.
Yes, it is all down to one unscrupulous person exposing that breaching convention has no consequences if you simply ignore them. Unfortunately he has shown the way and it is being followed by his supporters. It won’t stop when he finally leaves office. The cat is out if the bag. Much in the same way as Blair followed Thatcher’s example ignoring convention when it suited.
Just another straw in the wind. The prime minister has repeatedly claimed (today indeed) that there are more people “in work”, “in jobs” or “in employment” than there were before the pandemic.
The Office for Statistics Regulation wrote to the prime minister’s office in February to explain why that is incorrect. Full Fact simply say it is false.
Yes, about half a million more people are registered for PAYE now. But ONS statistics demonstrate that about a million self employed people have stopped working. So the number of people in work is down about half a million, not up. Yet the prime minister is free to repeat this falsehood in the House of Commons, without correction or clarification, time and again. The first time may be a mistake, but subsequent repetitions after the error is pointed out are lies.
* https://fullfact.org/economy/february-2022-boris-johnson-employment/
* https://osr.statisticsauthority.gov.uk/correspondence/ed-humpherson-to-laura-gilbert-statements-on-the-number-of-people-in-work/
Can it be a straw in the wind and an elephant in the room too? It’s never discussed apart from places like this. The opposition parties need to correct his claims and every time he lies like this. Otherwise his boasting and boosterism works.
I wonder how it can survive as the cost of living crisis begins to bite though? People will know from their own experience his boastful statements don’t agree with reality. Double digit inflation and 40% in fuel poverty will be obvious to all.
I think it is a mistake to think that MPs have not done anything because they are unable to. They have not acted because they are unwilling.