Of concern though are the tactics deployed by both sides, involving as they do questionable constitutional innovation and bad behaviour. On the government side prorogation powers have been used to reduce the possible sitting days available to Parliament before exit day. The legality of this decision, or otherwise, remains in dispute at the time of writing; although it is clearly novel in the context of recent history. Crucially, it has not removed Parliament’s ability to achieve their own ends by other legal means, for example by agreeing to an election, or removing the Executive by a motion of No Confidence. This effort has been painted as a “coup” by protestors, but in reality it seems at most to be bad behaviour, unwise principally to the extent it has allowed opponents to paint it as extreme or illegal.
Parliament conversely has introduce a new law and a motion by adjusting Parliamentary rules. Traditionally Parliament’s power to legislate is strictly limited. The Executive proposes, Parliament disposes, and if very unhappy it disposes of the Executive. Given the Executive also normally controls the Parliamentary timetable or “business”, outside Private Member Bills back-benchers do not normally have the power to propose legislation.
This has changed, with the normally neutral Speaker enabling the passage of EU Withdrawal Act no. 5 (April) and no. 6 (September) that require the Prime Minister to seek an extension to the UK exit date rather than leave with “no deal”. This was controversial in April, although did not become a crisis, given the then Prime Minister Theresa May accepted Parliament’s instruction. The new Prime Minister Boris Johnson has indicated he will not do so, leading to the potential that he will break the law. If he does so, then he may face legal action and a court order to comply, which if ignored could result in conviction for “contempt of court” subject to an unlimited fine and up to two years in prison, or misconduct in public office, which carries a maximum sentence of life imprisonment. His personal discomfort aside, the spectacle of Parliament having their political opponent locked up, rather than submit to an election, would be a crisis in any democracy.
They have doubled down on this tactic with a motion requiring a number of the Prime Minister’s staff to surrender any personal and private communications on prorogation. This “urgent” request is not based on any evidence of offences, but a fishing expedition, in turn designed to lawfare cases currently progressing through the courts. In making this move Parliament evades due process set out to protect those challenged in employment and data protection law, skirts close to an extension of the Regulation of Investigatory Powers, and is likely to be in conflict with the Human Rights Act. This by any definition is extreme and surprising given it comes from individuals traditionally associated with upholding civil liberties and their protection in European law.
So, threatening political opponents with arrest, intercepting their communications, tearing up the Human Rights Act, and refusing to honour or hold elections? What is going on?
Ethics provides a useful reference point for what appears to be a Parliament gone mad. Specifically the “ticking bomb” analogy. In this, people are presented with a dilemma. What if a terrorist has planted a live nuclear device in London and, despite capture, refuses to relinquish the code to halt the detonation timer attached? What if you know torture to be effective (or probably so)? Do you torture the terrorist? Or uphold their human rights? It’s a difficult and extreme case, but it can explain what is going on. The political narrative of the Remain coalition during and since the 2016 referendum is that leaving the EU is an existential threat to the economy, citizen’s rights, security, peace, stability, and if you search hard enough I’m sure rainbows, kittens, and the smashing orange bit in Jaffa cakes. Without rehashing the many debates about the accuracy or otherwise of these claims, it is reasonable to suggest that for those living the campaign, “no deal Brexit” is akin to the bomb, and the Prime Minister to the mad bomber. If unsure on this point, spend some time on Twitter searching #FBPE.
And if that is what they believe, then it starts to make sense why they’d be tearing up all the things they claim to believe in, in order to protect the things they believe in. If they believe there is no ethical choice, then why act ethically? They currently see the offer of an election as a clever trap: “let me go and I’ll lead you to the device” – so to speak, before the prisoner is suddenly set free by hidden ninjas, and turns the tables. In that regard, they need to keep the torture going until they can be sure they can defuse the bomb.
Herein also lies the deep flaw in the strategy. Given changing Britain’s terms of trade is not a nuclear device, the Prime Minister not a bond villain, there are no ninjas, and most of the public do not see them that way, the consequences of analogously treating them to waterboarding will not be pretty. Like Jack Bauer in “24” opponents of Brexit may find themselves the heroes of their own plot, but reviled by the public. Students of economics, as well as ethics will be familiar with the consequence of repetition in game theory. Going all out to win one “game” is not wise if the game is repeated. In the “ticking bomb” analogy and its application to the real world, your unethical conduct today inspires the next generation of terrorists, with bigger bombs. In parliamentary democracy how you win one vote, influences how likely it is you are to win the next.
The ethics of the social contract in a liberal democracy are that you need agree on very little, bar one important value, that it is possible to transfer power peacefully, despite profound disagreement. If political choices or their fulfilment are criminalised, whether this week’s novelty laws, or the post-referendum hounding of activists with the powers of the regulators and tax authorities, then the contract is being broken. If those breaking it cannot see the danger in that, and pull back from what they are doing, then the ticking bomb analogy is all too likely to become real. Whether anyone fighting their piece is ready to see those risks, remains to be seen. It is though a worrying time for the institutions of a free society.