Melanie Phillips: The staggering hypocrisy of the Remainers’ legality gambit

The hue and cry about Boris Johnson breaking the law if he refuses to request an extension to Article 50, as demanded by the law that parliament has now passed, is beyond staggering.

Yes, the prime minister should obey laws based by parliament. But what if those laws are themselves the product of an abuse of process? Don’t any Remainers care about that? (please don’t all answer at once.)

Parliament’s new power to dictate government business was reportedly achieved through Speaker Bercow repeatedly breaking parliamentary rules – and the advice of the Commons clerks about those rules – in order to allow MPs to pass legislation against the government’s wishes.

At the end of last month, after it was revealed that the prime minister was intending to prorogue parliament, The Times reported that Speaker Bercow intended to grant an emergency debate to enable MPs to wrestle control of the order paper from the government. This would give them a few sitting days until prorogation (which took place this evening) to pass a law to delay or block Brexit (the A50 extension act which has now been passed). As The Times reported:

“Any such move is likely to involve revising how emergency debates under the Standing Order No 24 procedure usually work. At present they take place on motions “in neutral terms” that do not make a commitment to a particular, substantive form of action afterwards. In this case, MPs would use the vote to seize control of the order paper to make way for their emergency legislation.

A source told The Times that the Commons clerks were expected to advise that allowing MPs to do so in that way would be unconstitutional. “John will overrule them,” the source said. “Technically they are right but the Speaker is absolutely furious that parliament is being prorogued.” A source closed to the Speaker added: “He could go on a suicide mission. But he is on a collision course, not only with the government but the Queen and the clerks of the House.”

Mr Bercow caused fury on the Conservative benches in January when he rejected clerks’ private advice on a pivotal Brexit ruling. The Speaker was thought to have ignored the counsel of Sir David Natzler, then the clerk of the House, when he tore up precedent to allow MPs to vote to force the government’s hand on the Brexit timetable.

Mr Bercow stunned ministers by allowing amendments to a business motion — doing so by revising what generations of parliamentarians had understood to be the procedural meaning of the word “forthwith”.

Justifying his decision, he told MPs: “If we were guided only by precedent, manifestly nothing in our procedures would ever change. Things do change.”

Moreover the extension law itself, according to lawyer Robert Craig, is unconstitutional because it needed to gain “Queen’s consent” – or in practical terms, government approval – as a result of the specific way it was framed. This is because it not only tells the prime minister he must seek an extension of the Article 50 date – for which it doesn’t need Queen’s consent – but also that he must agree an extension, which does need Queen’s consent because “that manifestly affects the [Royal] prerogative”.

However, added Craig, the final decision as to whether Queen’s Consent is required is made by the Speaker. Well guess what – this most partisan of Speakers, who now stands accused of even gaming his long-delayed retirement to stack the decks still further against Brexit, decided it wasn’t necessary.

“Normally”, wrote Craig, “ it is the Clerk of Legislation who decides, in conjunction with his counterpart in the House of Lords. If necessary, the Clerks provide confidential legal advice to the Speaker for the purposes of his ruling.” Did the Speaker overrule the clerks yet again? We don’t know.

I have no idea whether there can be any legal recourse over these apparent abuses of process which have just taken place. But it is clearly outrageous if a law can be passed in an improper way and there can be no remedy.

More generally, consider this:

• parliament’s seizure of power over the executive unilaterally and improperly upends the constitutional balance of powers between the two;
• the Remainers are threatening to have the prime minister jailed or impeached over measures he might take in an attempt to fulfil the government’s mandate and enact the legislation MPs themselves have passed;
• in a clear and unequivocal denial of the people’s ultimate democratic protection, as the constitutional expert Professor Vernon Bogdanor has noted, parliament is preventing the people from deciding in a general election whether a prime minister who can no longer govern the country should be enabled to do so or not;
• and all this with the aim of reversing the 2016 referendum result and denying the democratically expressed will of the people to restore independent government and democratic sovereignty to their country.

Regular readers know I don’t trust Boris Johnson to deliver a clean Brexit. But not only – as I wrote here – has he been trapped as parliament’s hostage. He is up against something Britain has never seen before – an unprecedentedly ruthless, cynical and unprincipled attempt by its elected representatives to up-end the constitution and stick the parliamentary thumb into the eye of the people.

And yet these Remainer insurrectionists have the gall to complain that the prime minister intended to break the law (which he has now said he won’t do) by declaring he wouldn’t do what parliament and its disgracefully partisan Speaker had torn up the constitution and the rules of parliament to force him to do.

Small wonder that as a result of all this the beleaguered prime minister’s poll ratings have actually gone up. The British people who voted for their independence don’t care about the histrionics in parliament, the flouncing resignations and the name-calling and the legal arguments and the blue-on-blue in-fighting. They perceive one thing only: that they voted to leave the EU, and that parliament is throwing absolutely everything at preventing that from happening and at preventing the prime minister from enabling it to happen.

If this rotten parliament should succeed and Brexit is kicked into the long grass or reversed altogether, none of the establishment parties will have any moral claim to be in government ever again.

Melanie Phillips is a British journalist, broadcaster and author - you can follow her work on her website HERE.