Friday, 6 September 2019

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. It’s 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.


  1. We are all, I know, grateful to Effie for so comprehensive a compendium of some beliefs associated with the Brexit enterprise. Her allegations will probably be best dealt with one at a time.

    One point, however, is worth mentioning now. As support for Brexit dwindles because more and more people realize the harm it could do them, it is of course inevitable that hardcore support will become ever more strident. That, however, is not the interesting aspect of this. The 2016 Referendum is, for a certain class of person, assuming the rôle of the Easter Rising in Ireland, or the Larne Gunrunning in Ulster. This is, I suspect, the foundation myth of the latest incarnation of the British State.

  2. On reflection, I should amend the second limb of my comparison. The correct Ulster comparison would, of course, be with the Covenant.

    1. It is an intricate and fraught juridical point, not yet settled, whether or not Holyrood be a continuation of the Thre Estaitis. It has, however, been often confirmed, beyond the slightest peradventure, that Westminster is the continuation of the Parliament tracing its origins to the operations of Simon de Montfort.

    2. I should note that this current intervention contains several puzzles. These require attention before I address Effie's various points.

    3. There are several advantages to the collegiate system in certain older universities. One is that it restrains academic megalomania: the Head of House has one vote, just like all the other members of the Governing Body. The Vice-chancellor has no power to impose decisions, but must seek the permission of all the Masters of Arts in residence.

      Another advantage is the breaking down of artificial boundaries between people in different disciplines. The Members of each College are accommodated in quadrangles or courts, each with several staircases leading up from ground level. Every staircase will accommodate Members, both Junior and Senior, from different disciplines. (On my staircase, for example, seven disciplines were represented among the nine Junior Members and two Senior Members.)

    4. Here is one puzzle.

      Effie refers to several almæ matres, one of them a collegiate university situated in a Common-Law jurisdiction. We must conclude, from her remarks above on legal matters, that none of the people on her staircase was a student of Law. It also seems unlikely that any of them was studying History or Politics either. This strikes me as, statistically speaking, a bit of a long shot.

    5. Here is yet another puzzle.

      In the earlier phases of the Brexit controversy, Effie tended to set store by the doctrine of parliamentary sovereignty. This was one of the things to be defended against alleged threats from the other side of the Channel. Effie now places all her cards on the doctrine of popular sovereignty, to the exclusion of all else.

      Is this clarification of an earlier ambiguity in Effie's mind, or does it express a change of opinion?

    6. And here is our last puzzle for the time being.

      The essence of the English realm that took control of neighboring countries in order to form Britain and then the U.K. is a partial merger of the executive and legislative branches of government. Sovereignty is vested in the Crown-in-Parliament. In the Glorious Revolution of 1688, dominance shifted decisively from the Crown to Parliament.

      That was over three centuries ago. Effie wishes to reverse this historic shift. She also encourages law-breaking.

      At the same time, she calls herself a conservative.

      How, many of us wonder, does she handle the concomitant cognitive dissonance?

    7. Clarification of several points of English Law is evidently required.

      I am advised that, inter alia:

      *Nobody* is above the Law.

      Natural persons may do anything they wish, as long as it is not forbidden.

      Office-holders, associations, bodies corporate, and other moral persons may do nothing unless they are explicitly empowered to do it, or the proposed action is reasonably conducive to so doing, and is not in itself unlawful.

      Civil Servants are bound by a Statutory Code of Instruction. This requires them to comply in full with all *lawful* instructions, and *only*them.

      If two or more persons agree to carry out an unlawful action, even though it may not in itself be an offence, then they commit the common-law offence of conspiracy. Penalties for this can range up to life imprisonment.

  3. You may well be right about the foundation myth, but Brexit will happen. There's a major advantage to its being dragged out: it has become the eye of a cultural storm and a lot more cancer besides the EU is being excised.

  4. Not sure support for Brexit has dwindled. The media has played a huge part with the scare stories but outside of the m25 I think you’ll find it’s got a very large and strong following.
    Even those who wanted to remain are questioning why we haven’t left and the stalling from parliament on every detail.
    However, we can still leave with no deal.
    Eu does not granted a extension and original deal remains.
    We go for extension, carry out an election, Tory and Brexit party firms a coalition. Gets a massive majority, overturns this new bill(which I think only lasts till 31st Oct) and goes for no deal.

  5. This post is utterly irresponsible and literally dangerous. Civil disobedience by individual citizens is one thing. The *Government* acting in breach of the law and justifying it because of the "will of the people" is insane. Please delete this disgraceful post.

  6. Ah yes. Silence the dissenters.

    Simon expended some effort there >claps< however my, admtttedly simplistic, view is unless a meaningful BREXIT is delivered then it's "game on"....

  7. Sorry, but this article is nonsense.

    1. First and foremost, the UK infamously doesn't have a constitution therefore it is impossible for anything to be unconstitutional. However, allowing the author's definition of what constitutes (sic) a constitution ....

    2. We are asked by the author to consider "govt by precedent" as the UK's unwritten constitution as a result of which we have to assume anything without precedent is "unconstitutional". But how is that possible? Precedent, by definition, happened "without precedent". That makes everything Westminster has ever done in its history "unconstitutional".

    3. To allow govt by precedent it has to be possible to set them. If you don't, you have to decide at which point in time you wish to preserve your political system in amber. In Tory terms that would be at some time in the 19th century. All the Speaker did was set a precedent which apparently, wasn't illegal, within his powers and allowed the airy-fairy system of govt by precedent legitimacy.

    4. The author seems to believe that the fact the Opposition have forced the govt to do something it didn't want to do is not only "unconstitutional", it is "revolutionary". Apparently, once the votes in a general election are counted and a govt formed, all MPs not actually in the "executive" must go home as their presence is unnecessary. One wonders what all the voting (or divisions as they are archaically called) in the Commons is about then. Govts have been defeated before and forced to do things they did not want to do. Was all that "unconstitutional" and "revolutionary"? Did all those govt defeats in the past not set a "precedent" thus making the current situation entirely "constitutional"?

    5. The author appears to believe Parliament is the enemy of the people. She appears to believe that the "Executive" should therefore break the law, as passed by the democratically elected representatives of the people, as this would be to the people's liking (in her opinion). She is advocating, to all intents and purposes, the replacement of parliamentary democracy with a Mugabe style of one-party govt reliant on the "mob" to legitimise its decisions regardless of the laws of the land.

    With every article, the author paints an ever bleaker picture of the future in an extreme right-wing Tory UK. It is not what we were promised in 2014

    1. This comment has been removed by the author.

    2. Its not what the leave group promised in 2016 either. Again I come back to my recurring question, what drives ultra unionists to become ultra brexiteers. This is apparent time and again its almost a 1:1 conversion rate.

      Pushing this no deal piss pot is in fact rejuvenating
      the independence movement which could have been starved till it died. The reality was that without Brexit there was no door to independence.

      Where does Effie and her Scottish based SiU comrades end up if England exits EU and Scotland exits UK. It's lose lose and absolute worst case scenario...

      I will never understand them in this sense, my only conclusion is they were ardent Unionists for other reasons that to me are not apparent. Pure control, avoiding a long term left wing government, maybe they know the fiscal reality of England on its own or is just breaking the union just damages/ends the British Reich/Empire melodrama....

  8. The leavers were robbed by their own side. It pulled a trick of ambiguity that has turned out to make possible the stalling of its wishes. For some Leavers only leaving with a deal was acceptable and they promused so in the Leave campaign. For others only leaving with no deal was acceptable, now the Brexit Party's position: they avoided declaring so in the campaign but have taken the vote for Leave as grounds to change the goalposts to that harder position.
    Both those camps within the Leave movement hoped + gambled that winning a vote just for the principle called Leave should then let their camp prevail as the true form of Leave supported by reason. That has not happened, the 2 camps are strong enough on their view of true Leave to fight each other + show that there is are actually majority feelings, national and parliamentary, against each camp. The majority consists of: the other Leave camp's purists +the Remainers.
    No theorists + debaters of referendums ever guessed that such a Gordian knot would happen. That a ref would be won for the principle of a step, that was offered in a papered-over alliance of 2 versions mutually unacceptable to enough of their supporters to make majorities against enacting either of them !

    1. Indeed the leave campaign never said no deal was their goal and in the end even if they exit with no deal they need to do a deal or they will remain on WTO forever.

      The UK economy will wither on the vine and jobs/economy will at best stagnate, in reality it will crash hard for 10 or more years then stabilize but at a much lower level than today. Social and employment laws will be hacked down from current levels due to crashing economy.

      ERG and other shady folks thought they saw a window to really wreck the UK and now with no deal possibly also EU economies.

      An even larger big short opportunity opened up that was not there beforw...So they pushed for this and tried to normalise it. Problem is many leave MP's saw this and the risks associated with it. They got cold feet. So no deal could not pass so now they try and force it through by hook or crook.

      Problem for the Tories as they tried to use the Brexit question to sort their internal wangles and to kill off Farage. In the end they created a monster that now controls their every thought and may in the end destroy their party.

  9. I have just watched the lunchtime bulletin in Dublin. Mr. Boris Johnson eschewed his usual bluster. Nevertheless, he has still not publicly offered any practical solutions to the problems caused by Brexit.

  10. Surely the deal we make, or lack of one, is only a starting point. Things will not stay frozen forever. Whatever it is, our relationship with the EU will evolve - presumably to mutual satisfaction. I fail to see why our standing immediately on leaving should be that much of a concern.

    1. "Our standing immediately on leaving" the UK continues to be the lynchpin of the unionist argument against Scottish independence. Is this another example of it always being different for Scotland?


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