If politicians see the law as an irritant, we are in deep trouble

Matthew D'Ancona
Trapped: how far will Boris Johnson push the law on a no-deal exit from the EU?: PA

At the heart of the British political system is what is often called the “Whig interpretation of history”. According to this cosy analysis, the genius of our institutions is to be detected in their capacity to adapt incrementally, and to evolve alongside the mutating contours of the social and political landscape.

Long ditched in academic circles — historian Herbert Butterfield debunked the Whig interpretation comprehensively in a book on the subject in 1931 — this way of understanding our island story retains considerable cultural purchase. It is a form of ongoing collective self-congratulation; a means by which we explain to ourselves and to others how we have, as a nation, avoided violent revolution and reckless radicalism.

Well, no longer. In only seven weeks, Boris Johnson’s government has made a mockery of this blurry-edged set of traditions — essentially, the assumption that those in positions of authority will observe convention, honour the spirit as well as the letter of law, and (in a more general sense) demonstrate at least a respect for precedent and inherited practice.

Leave aside for now the propriety of the prorogation of Parliament today — today ruled unconstitutional by the Scottish courts — and the dishonesty of Johnson’s claim that the five-week suspension is needed to prepare for the Queen’s Speech rather than shut down debate in the Commons about Brexit.

Much more extraordinary has been the new approach adopted by senior ministers to the rule of law. It was astonishing, 10 days ago, to hear Michael Gove reserve the Government’s position on a prospective law mandating Johnson to seek an Article 50 extension. “Let’s see what the legislation says,” he told the BBC’s Andrew Marr — casually inserting a conditionality into ministers’ relationship with the law of the land.

Matthew d'Ancona

In the days that followed, Gove and others rowed back a little, conceding that, on the whole, it was probably best to stick with the existing system whereby ministers — like the rest of us — abide by legislation.

On Sunday, however, Dominic Raab, the Foreign Secretary, declared to Sky’s Sophy Ridge that the Government would still “test to the limit” the new law thwarting a no-deal exit from the EU on October 31.

Raab, do not forget, occupies one of the great offices of state: until very recently it would have been unthinkable for so senior a politician to claim, quite brazenly, the right to play games with the law. No less shocking than the content of what he said was the total lack of embarrassment with which he said it.

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Indeed, it is one of the defining practices of the new government that it actively (and often publicly) looks for ways of getting around the rules. It has been suggested, for instance, that Johnson might, if absolutely necessary, send a letter to Brussels requesting an Article 50 extension — but also despatch a second memorandum explaining that he didn’t really mean it, and had only been forced to seek more time by the pesky new legislation.

This, as Lord Sumption and other distinguished jurists have pointed out, is legal nonsense. But the Johnson government is not interested in jurisprudence. It is interested in what it can get away with.

One can see this quite plainly in the briefings that are scattered around the press. Could ministers seek to delay or prevent the Royal Assent being granted to bills they did not like? Might they invoke the Civil Contingencies Act 2004 as a means of conveniently assuming emergency powers? What other legal conventions could they bend, break or abuse to achieve the single objective of getting out of the EU on October 31?

"It is a defining practice of this government that it actively looks for ways of getting around the rules"

This, I suppose, is what happens when you have a Prime Minister who has, for his entire career, been indulged, applauded, exempted from the rules. Famously, Johnson says he believes in having his cake and eating it. And — to be fair to him — he has all too often been surrounded by powerful enablers encouraging him to do just that.

One of the many ironies of Johnson’s rise to the top job is that he has used every trick of old-school patrician politics to get there: the lingo of Wodehouse, the faux-Churchillian bravado, the contrived appearance of bumbling amateurism. He has postured as a tribune of all that made Britain great in the past.

Yet he is, in truth, an ultra-modern politician. As much as he loves to be seen as a child of history, a restorationist of all that is noble in the British spirit, his predominant traits are the very worst of the 21st century: impatience, a desire for instant gratification, a disdain for reflection, and an ill-disguised contempt for rules as disposable fossils.

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None of which would be terribly important were he not running the country. As the late master of the rolls Tom Bingham wrote in his great book on the rule of law, it is one of the indispensable, binding principles of our civilisation — namely, “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”.

Incredibly, but undeniably, we now have a government that regards this principle as an irritant rather than a foundation stone of our entire civic order. Do not for a moment underestimate what is at stake in the battles of principle that lie ahead. I am beginning to think Brexit is only the half of it.

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