The Flaw in Parliament’s Act (or why Boris gets away with it)

It has been suggested that we will soon see many extraordinary things. Boris has been bound by Act of Parliament to seek an extension of Article 50, and if he fails to comply would be liable to court injunction forcing his compliance. Should he ignore the injunction – and he would apparently rather ‘be dead in a ditch’ than comply – he could be gaoled for contempt of court. According to the BBC ‘Legal experts have warned the prime minister could go to prison if he refuses to comply with the new law

Or perhaps not. Would a court really issue such an injunction and intervene in a political issue when parliament has the means of relief in its own hands in the form of a Confidence motion? The Act mandates what the Prime Minister must do, not what Boris the individual must do. If Boris will not do it, the Commons can vote no confidence in him and install a new PM who will comply with the Act. But let us suppose the court went along with Parliament and issued an injunction which Boris ignored. Would the court really issue a bench warrant for the arrest and imprisonment of the Queen’s First Minister – in the Tower, presumably?  It would, I suppose, make excellent television; but it is not likely to happen.

Legislation is usually closely scrutinised before being passed into law. Committees examine it, the civil servants give their advice. The mills of Whitehall and Westminster, like the mills of God, grind slowly, yet they grind exceedingly small.  It is a slow process. And it is a slow process for a reason. Legislation must be exact, otherwise you risk enacting nonsense. And that is what has happened in this case. This Act was rushed and not properly considered.

According to the Act (European Union (Withdrawal) (no 2) Act 2019), if there is no agreement between the EU and the UK and if both Houses have not passed a motion to approve exiting without an agreement, then according to section 1.3 of the Act  ‘no later than 19 October 2019’, the Prime Minister – according to section 1.4;-

must  seek  to  obtain  from  the  European  Council  an extension of the period under Article 50(3) of the Treaty on European Union ending  at  11.00pm  on  31  October  2019  by  sending  to  the  President  of  the European  Council  a  letter  in  the  form  set  out  in  the  Schedule  to  this  Act requesting an extension of that period to 11.00pm on 31 January 2020 in order to  debate  and  pass  a  Bill  to  implement  the  agreement  between  the  United Kingdom  and  the  European  Union  under  Article  50(2)  of  the  Treaty  on European  Union,  including  provisions  reflecting  the  outcome  of  inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks.

This is the heart of the Act as it pertains to the PM. It should be noted:

  • The Act nowhere mentions Boris Johnson, the reference is to an office – that of Prime Minister;
  • The Act stipulates no sanction against the Prime Minister should he or she not comply with it. It is not comparable, for example, to ordinary law which cites the punishment applicable if the law is broken;
  • Failure to comply with the Act cannot be demonstrated in advance. The PM has till midnight 19 October to comply with the Act. No court injunction can be sought in advance of that date;
  • The Act, in so far as it pertains to the PM, becomes a dead letter on 20 October 2019 as the actions outlined must be complied with by 19 October. Once 19 October has passed, the Act has either been complied with or it has not. After that date, compliance with the Act as written is an impossibility.

It is thus a fallacy to imagine that, should Boris refuse to comply, an injunction could be sought compelling him to do so. The very wording of the Act itself makes that impossible. In plain language, no court would issue an injunction on the 20 October compelling a man to do certain things by the 19 October. It is an impossibility and an absurdity. Of course, the intent of the Act is to force the PM to request an extension of Article 50 before the crash out date of 31 October, but the letter of the Act makes it impossible to comply with the Act after 19 October. A court can only rule on the Act as passed, not contrary to the plain text of the Act in favour of the (presumed) political intent.

It would also be a nonsense to attempt to obtain an injunction before the 19 October forcing the PM to comply as non-compliance can only be demonstrated post-factum, after the period in which the PM has to comply with the Act has expired – that is, after 19 October. And after 19 October, the Act cannot be complied with.

Thus, legally speaking, Boris can safely ignore this Act. Doing so carries no sanction, and the Act becomes a dead letter on the stroke of midnight on 19 October. The political consequences of a sitting PM failing to obey an Act of Parliament would surely be some form of vote of censure – a Confidence vote, in other words. But if Parliament wants to entrap Boris in legislation, it needs to either amend this Act or draft a new one. In order to do so, it must again gain control of the order of business in the Commons. The alternative is to pass a no Confidence motion and evict Boris from the premiership and, and this is the tricky part, vote Confidence in a new PM. The Leader of the Opposition, Jeremy Corbyn, is the natural candidate simply by virtue of being Leader of the Opposition. But the Lib Dems won’t have Corbyn. And Corbyn, understandably, will not support any alternative candidate.  It seems doubtful that the Opposition can agree on any candidate for PM. They have no Cromwell. This means, under the terms of the Fixed Term Parliaments Act, that they must either reinstate Johnson or face the triggering of a general election 14 days after Boris loses a Confidence vote. In any case, passing or amending legislation or calling a Confidence vote requires a sitting parliament. And Parliament is prorogued from 9 September to 14 October.

There is currently a government in office but not in power. The Opposition is opposed to the policy of the sitting PM, but fails to support a general election or call a vote of Confidence in the PM. It is farcical anarchy, but it will not lead to the incarceration of Alexander Boris de Pfeffel Johnson in the Tower of London – or any place else. There has never been a greater need for a general election.

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