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What happens if the prime minister breaks the law over Brexit?

Boris Johnson has said he would rather "die in a ditch" than ask the EU for another extension. But what if the law compels him to?

By Prospect Team  

This photo was actually taken on a farm, but it's always funny when a politician allows themselves to be photographed behind bars, isn't it? Photo: PA

Okay, what now. 

Will Boris Johnson break the law and refuse to ask for a Brexit extension?

It’s the question the broadsheets are asking today, as a bill which could compel the Prime Minister to go to Europe if a deal isn’t passed in time is set to be given the Queen’s assent.

The Times reports that Johnson has told cabinet ministers he would “abide by the law,” accepting a further three-month Brexit delay if forced by the courts.

But whether it’s the prime minister’s seemingly innate love of juvenile brinkmanship (these posts are meant to be neutral—Ed) or a tactical tid-bit for the more hardcore leavers among his base, Johnson is at least entertaining the idea of defying parliament.

So what happens if he does? 

There are two strands to any answer: one politically; the other in law.

With regards to the latter, the Independent quotes Lord MacDonald, former director of public prosecutions, as warning that the prime minister could face prison time if he breaks the law.

MacDonald says that a court would say the law should be followed, and that defying it would amount to contempt of court, which can result in prison time. Lord Sumption has also indicated there are “plenty of ways” to enforce the law.

MacDonald added, however, that the court could order another government figure to sign the letter seeking a delay.

Frequent Prospect contributor David Allen Green has explored the possible criminal offence of misconduct in public office if a public servant—such as the PM—“deliberately seek[s] to breach the law”—in post.

“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,” he adds.

“The Prime Minister is not above the law.”

(For the sake of balance: Adam Wagner suggests this might be “a stretch.”)

Sounds pretty heavy. And on the parliamentary side…?

Well, leaving aside the legal issue for a moment, the parliamentary consequences of breaking the law—or, to make this hypothetical simpler, pushing for no-deal in general—are less easy to predict.

While there is a parliamentary majority against no deal, there is no clear parliamentary majority for any other Brexit option (cf. the whole indicative votes palava).

Of course, that could change with a general election. But it could also be the case that parliament loses its anti-no deal majority, ends up with another hung parliament, and/or is still unable to figure out what it wants to do.

So once again, it all comes back to the parliamentary maths.

Yep—a general election is still the most obvious mechanism by which to break parliament’s Brexit deadlock, and still provides no guarantee that deadlock will be broken. Happy Monday! 

Now read: when will there be a general election?

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