When leaders represent the will of the people – and the laws they are breaking are illegitimate or undemocratic – violating them is nearly always justified in retrospect. As it would be in this case. The Benn Act became law earlier this month because of the connivance of the unconstitutionally partial Speaker, John Bercow. When he allowed the Opposition to pass legislation in Government time against the will of the PM and his Cabinet, 300 years of constitutional precedent was overturned.
The Benn Act was a very English form of coup d’etat, orchestrated by an anti-Brexit faction in Parliament to subvert the clearly expressed will of the people. It is, therefore, necessary for Boris to break it to restore the proper constitutional relationship between Government, Parliament and people.
To the ordinary person, Bercow was not merely cheating. He was breaking the law about how laws are made. I’ve thought that since he first did at the start of this year. Since parliament refused to call him out on it, other constitutional authorities have the duty, never mind right, to do so. (The executive certainly has a legitimate interest.)
Roberts means the same but does not say it quite as as I would. “Breaking bad law for the greater good” is a rather wide phrase (that evil people could make use of) whereas denying that laws made by unprecedented means are laws (a point Roberts is making) is more limited – and all the more powerful for being so.
The two aspects of parliamentary power have always been the lawful and the legitimate. The problem with the Benn Act is that it is tainted with both unlawfulness in the way it was enacted and illegitimacy in the fact that it is a deliberate assault on the expressed will of the people in the form of the 2016 Referendum result.
Our erstwhile masters seem to be aware of the illegitimacy (if not actually ignoring the unlawfulness of the bills passing) by their refusal to do what any other UK government would have been forced to do at this point and call a General Election to put the matter to the country.
The Benn Act itself forces the Prime Minister to act as little more than a puppet of Parliament without the power to resolve the matter through a general election (so up their with the idiocy of the Fixed-term Parliaments Act), the only people who cannot see this are the parliamentarians that have proposed and enacted it, simply because they WILFULLY refuse to see it.
Regardless, the clock ticks towards YET ANOTHER pointless deadline and the knaves of the House of Commons argues vainly for yet more time and further delay in the hopes of common treason overriding reason.
“… the knaves of the House of Commons …”
Indeed! But one would have to be an optimist to assume that the next generation of MPs would be much better. Brexit without governance reform could become a case of frying pan and fire.
Conversations with random Brits suggests a broad spectrum of views on the relationship with the EU:
– the Walk Away crowd who really want a No Deal exit;
– the Amicable Divorce crowd, who want to leave but with a deal;
– the Mend It, Don’t End It people who want to stay in the EU while using the UK’s strength to reform it;
– the Ever Closer Union Europeans.
Then there are those who probably made up the 28% of Brits who chose not to vote in the Referendum 3 years ago:
– the Meet The New Boss, Same As The Old Boss people — who have as little confidence in Westminster as they do in Brussels;
– the Don’t Care crowd.
Superimposed on that, there seems to be a general mood among most people of “Just get it over with”, whether or not they are personally in favor of separation from the EU.
Put together that broad mix of views, multiple candidates in every constituency, and the First Pass The Post system — and the results of a General Election could be quite surprising!
General Elections are seldom about single issues, even BRExit, but rather the pluses and minuses of party, leadership, policies and candidates. The overall picture right now is that Labour are being dragged down more by their awful leadership and infighting than their attempt to present their current Schrödinger’s BRExit position.
In a sense, Jeremy Corbyn is right that to make any firm choice with respect to BRExit is to alienate the majority of those who support any other the other spectrum of choices from “Hard Leave” to “Revoke and Remain” and everything in between. The binary choice (and response) given in the referendum has been so muddied by MP’s trying to achieve their own personally preferred form of BRExit that the only majority is for “Not That!” (whatever “that” is for each specific question)
Inevitebly, the general election will come down to each voter looking at their own Prospective Parliamentary Candidate through the lens of their own prefered BRExit (so the voters of Normanton, Pontefract and Castleford who voted 69.3% – 30.7% to Leave the EU will have to view Yvette Cooper in that light) and then flavoured by whether they think voting for that candidate will lead to the horrors/rapture of a Labour/Tory/Rainbow Coalition government.
I can’t see any real desire for any of the parties or candidates, which reflects the polling. I certainly have no hope that an incoming bunch of MP’s would be any higher quality than the current lot, but the ousting of obvious traitors to their own electorates (like Yvette Cooper) might act as a salutary reminder for a short time.
Well tomorrow we shall see just how far the rot goes in the UK when the ‘Supreme Court’ rules on prorogation, which we have been assured has nothing to do with ‘Brexit’, as if. Note to all it should be called and be the ‘Final Court’, it has even broken the Acts of Union by usurping in a limited way, the finality of the Scots criminal courts, from which no appeal ever went to the House of Lords, but I digress.
Our learned judges accept the concept of unconscious discrimination whereby a person can be found to have discriminated against another (on the basis of a protected characteristic) without the discriminator even knowing that they are doing so, since our judges can discern unthought thoughts better than any person who actually discriminates.
See this http://www.baineswilson.co.uk/news/648-mind-games-possible-subconsciously-discriminate
But what if the learned justices, none of whom have recused themselves from this case on the basis of even an appearance of bias, when many have links to organisations that might cause non-judicial eyebrows to rise, are themselves discriminating against, say, part Turkish-origin Conservative Prime Ministers, without even realising it?
By the law’s own terms, they cannot even know if they are themselves discriminating without realising it, and either the law applies to all – ‘Be you ever so high, the law is above you’ per Lord Denning, or it is not law.
And Lord Hoffman who sat through Pinochet’s appeal to the House of Lords, then our final court, whilst a company director of a company linked to an intervener in his case without disclosing it and had to recuse himself when it was mentioned, did not leave the bench that same day, but carried on until retirement. That was 20 years ago, and 20 years of rot has not been cleared yet.
@Gavin – As somewhat of an aside, there is a good piece on Unherd about the “How political bias blinds us” which looks at some of the reasons why the polls have been wrong predictors of electoral choice in recent years and it looks like those biases remain, so I can’t help but feel that the current polling is distorted as well.
https://unherd.com/2019/09/how-political-bias-blinds-us/
I’m not saying we’re in for a sudden Labour victory, but rather that the attempt to view everything through the lens of BRExit is a distortion. Those trapped within the political bubble are more likely to reflect the distribution of views within that bubble rather than the country as a whole.
The divisions which exist aren’t class, political or even regional (although there are definitely regions which are more pro-remain than pro-leave), the nearest that I can approximate is that the “winners” of the current system want to keep it and the “losers” of the current system want to exit it. That breaks across all of the political party boundaries (even the Lib Dems and SNP) to such an extent that it is difficult for any party to make a decisive choice without alienating some part of it’s core constituency.
No matter which party you support (or none), the next General Election night will be interesting viewing…
I wonder if Boris could apply for the extension that he is legally required to and then immediately repudiate the Treaty of Rome.
If we do find out that the legal system is rotten, what do we do then? It sends shivers down my spine.
Is what Bercow has done unlawful? Unconventional, sure but unlawful?
*Repost*
Can’t see it happening, plus there are ways for Parliament to intervene. Far easier / better for Boris to make it absolutely clear that he wants and end to all of this disruption (for both the UK and the EU) regardless of the outcome.
Without a clear route to repudiation of Article 50 or at least the likelihood of the WA capitulation treaty being signed there is no benefit to the EU of all of this disruption either. Even if Boris were to request and they were to grant an extension, it doesn’t actually help them achieve anything of substance, just wastes more time and causes more disruption.
At some point the EU are going to come to the consensus that the UK needs to leave the EU because it is the only way to end the stalemate. They just need to find a way of doing this which doesn’t allow the UK to blame the EU for BRExit.
Niall Kilmartin
22nd September 2019 at 10:10 pm
“To the ordinary person, Bercow was not merely cheating. He was breaking the law about how laws are made.”
In the USA, we would lay this question at the feet of our Supreme Court – and they would then define for us “how laws are made” by interpreting those procedural laws in light of present circumstances. Their answer would, by definition, tell us if laws about how laws are to be made had been broken.
What is your version of this process? Where do you go for the definitive answer? I assume there is some process, but I see nothing about anyone appealing Bercow’s rulings.
I ask because, if there is no such process – if Bercow’s ruling is the last word – then aren’t Bercow’s rulings by definition lawful?
bobby b
The Speaker’s decisions are outside the scope of judicial oversight, due to the Bill of Rights 1689 preventing proceedings in Parlyament (arch.) from being impeached in any place outside of it. Oddly, our Supreme Court thinks that the Queen proroguing her Parliament isn’t ‘proceedings’ in it, so perhaps they are now selling London’s bridges to happy tourists.
The Speaker’s actions cannot invalidate an Act of Parliament. His main function is to certify if a Bill is a Money Bill which goes nowhere near the House of Lords. The courts will only look to see if an Act is on the Parliamentary Roll to see if it is an Act, nothing more. Irregularities in Parliament cannot be challenged in the courts. But do check back regularly as the law may change if the Supreme Court feels like it.
The Speaker is, after all, an official of the House of Commons, part of the High Court of the Queen-in-Parliament. His actions are neither lawful, nor unlawful, as the House regulates its own procedure.
bobby b (24th September 2019 at 12:08 pm), IIRC the speaker was told by all six of his relevant subordinates that he could not do what he then did early this year, and did again early this month. As Andrew Roberts correctly/carefully phrased it, “300 years of constitutional precedent was overturned.” As I said, “To the ordinary person [emphasis added], Bercow … was breaking the law about how laws are made”. As Mr Ed (who has legal expertise) correctly says, the house governs itself in such matters (barring extraordinary constitutional events).
AFAICS, these statements do not contradict each other.
Enough of the house was in enough of the mood, both at the start of the year and recently, to exploit, not refute, Bercow’s precedent-defying ruling. It’s the usual issue: “Who guards the guards?” Were the supreme court to rule that the 1st amendment does not cover an expansively-PC definition of hate speech, nor the second any who seemed like they might be harbouring unprotected thoughts, in what senses would and would not that be valid?
Roberts is arguing that when precedents no longer bind one side, they no longer bind the other. I suggested that a narrow-phrasing could be both more empowering and more prudent.