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I've seen several questions deal with the issues surrounding this issue, but none have tried to tackle this head on.

Boris Johnson had a defection within his party over a key Brexit vote. He then removed the defecting members of his own party from the party itself, which has left him without a majority.

Boris Johnson will strip 21 Tory MPs of the whip in one of the biggest parliamentary bloodbaths in history.

Nine former Cabinet ministers including Philip Hammond, David Gauke, Rory Stewart and Greg Clark will lose the Tory whip after rebelling against the government to try and block a no deal Brexit.

The opposition refuses to vote for no-confidence

U.K. opposition party leaders rejected a plan to put forward a vote of no confidence in Prime Minister Boris Johnson this week at a meeting in Westminster on Monday.

This is now a truly bizarre situation

  • Boris Johnson wants Brexit to happen (deal or no-deal), which it will, if he can find a way to avoid the law instructing him to ask for an extension (various methods have been floated for him to avoid it)
  • Parliament could remove him and install a Prime Minister who would carry out their wishes and get an extension, but does not wish to do so for ostensibly political reasons

How much power does Parliament actually wield in a situation like this? Could they force a recalcitrant Prime Minister to take actions he/she does not agree with using another method (i.e. legislation), or can the Prime Minister simply sit on their hands to avoid any actions, and suffer no real legal consequences (i.e. imprisonment) from it?

NOTE: While Brexit is the catalyst here, this goes beyond just Brexit to the powers of Parliament itself

  • 3
    The key point missing is that no one trusts Johnson. The opposition parties are happy to remove him or go for a GE as soon as the extension to the Brexit deadline is agreed. Without that legal agreement they do not trust Johnson and sorry he will do something unexpected to force no deal – Jontia Oct 7 at 17:45
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    Yeah, I'm pretty sure they don't want to call a GE because they're worried it will be dragged out in an attempt to avoid the Benn Act, particularly given who's being the most vocal in calling for it. – Kaithar Oct 8 at 4:09
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    "Boris Johnson wants No-deal Brexit to happen".. not true. He wants to leave with a deal, and has said so repeatedly. No-deal will only happen in the absence of a deal: however this is not Boris' preferred option. He has always been consistent in this position. – Chris Melville Oct 8 at 9:45
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    "The opposition refuses to vote for no-confidence" - before 19 October. (And before they can agree on a replacement PM!) – Lag Oct 8 at 11:58
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    which left him without a majority — he was already without a majority – gerrit Oct 8 at 13:49
15

How much power does Parliament actually wield in a situation like this? Could they force a recalcitrant Prime Minister to take actions he/she does not agree with using another method (i.e. legislation)

Yes, see the Benn Act, which does exactly this.

can the Prime Minister simply sit on their hands to avoid any actions, and suffer no real legal consequences (i.e. imprisonment) from it?

Only insofar as Parliament doesn't legislate to force him to do something else. In that case, the legislation may prescribe penalties for failure to comply which would then come into force. Even if not, as in the case of the Benn Act, the PM would be forced to comply via court action. Failure to comply following a court order would result in contempt of court charges. Note that in the current case, despite his public pronunciations, the PM has in fact committed himself in court documents to following the requirements of the Benn Act and additionally commited to not frustrating it's purpose. He recognises that he is not above the law.

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    That the PM's public statements and court submissions are out of step with each other is deeply worrying. – Jontia Oct 7 at 21:17
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    @Jontia Politicians lying should not be a surprise to anyone. – Pyritie Oct 8 at 9:35
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    @Pyritie Well.. it should be. – orlp Oct 8 at 14:05
  • For balance, the Benn Act has another name which shall not be mentioned. – mjaggard Oct 9 at 11:22
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The most honest answer would be that no-one really knows. Until the Fixed-Term Parliaments Act 2011, the situation couldn't arise because a PM who lost the ability to govern could use the royal prerogative to call an election. The legal theory is that Parliament is sovereign (subject to caveats about Queen's Consent), but the details of how that works in practice may not be settled until a few more theories have been presented to the Supreme Court and affirmed or rejected.

4

Parliament is sovereign. Therefore it has the power to do more or less anything it likes, provided a majority of MPs vote to do so.

One possible sanction would be to find him in contempt of Parliament. MPs found in contempt can be suspended or expelled, and I can't find anything suggesting the PM would be immune to this (though it is entirely unclear to me what the consequences would be, and it seems very unlikely it would happen).

Theoretically at least, he could be fined or even "committed to the clock tower of the Palace of Westminster" (Big Ben) - though this power hasn't been used since 1880, and isn't really plausible now.

(Citation: https://www.instituteforgovernment.org.uk/explainers/contempt-parliament)

More plausibly, Parliament could instruct him to follow a given course of action, which is exactly what the Benn Act is (which, unless he finds a loophole, he cannot ignore without risking the Supreme Court's severe displeasure).

To be clear though, Parliament is not limited to finding him in contempt. Indeed, were there the will to do it, it could pass legislation enabling any consequence at all - even one not currently legal. To carry this to the extreme, technically Parliament could legislate for him to be executed (though, it hardly needs to be said, this would obviously not actually happen in real life!).

Howeve, given Johnson's great unpopularity in Parliament, the understandable anger at several of his recent actions, and his lack of a majority - things really don't look too good for him.

Especially if he did seek to "get around" the requirements of the Benn Act, or pursued any further "constitutionally-questionable" actions.

-2

Parliament has effectively compromised itself and caused a constitutional crisis, by refusing to accept the freely expressed will of the people. Parliament is the legislature, not the executive, but elements within it have sought to use the judiciary to override the executive; and the speaker has compromised parliament by breaching more than one convention in what looks like a campaign to subvert the executive. The legislature refuses to be held to account in General Election, and so it has lost legitimacy. The Royal Prerogative allows, under these circumstances, and ideally with the accession of ministers (which it would likely get), to dissolve Parliament.

Experts seem to support the notion that the monarch can, with or without the acquiescence of ministers, and notwithstanding the FTPA, dissolve parliament: 'A. V. Dicey, however, believed that in certain extreme circumstances the monarch could dissolve Parliament single-handedly, on the condition that "an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors ... A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation." ' Barnett (2009) p. 107 Clearly, votes in parliament and the result of the referendum shows that the opinion of the House is in direct opposition to the opinion of electors (evidenced by the referendum result), and can only be tested in a General Election. A Dissolution of Parliament would be legal and democratic.

Parliament cannot force a Prime Minister to obey it as though Parliament was the Executive, which is what it is trying to do in the explicit micromanaging text of the Benn Act. The Judiciary cannot dismiss Acts of Parliament. The Executive through the monarch and privy council may be able to delay Acts of Parliament through Orders of Council, which may not be justiciable. Parliament's powers are contingent on the electorate expressing it's will; when you reach a point where the Executive is trying to get the electorate's will heard, and the Legislature is obstructing it, then there is a constitutional crisis caused by the Legislature - because it's power to make and unmake laws is dependent on legitimacy through General Elections. This constitutional crisis can be resolved by the Executive taking the Legislature to court, and asking the Judiciary to set the boundary between the balance of powers.

Nobody can prosecute the Queen, not even Gina Miller and Queen's Council Maugham.

In the earliest times the Sovereign was a key figure in the enforcement of law and the establishment of legal systems in different areas of the UK. As such the Sovereign became known as the 'Fount of Justice'.

While no longer administering justice in a practical way, the Sovereign today still retains an important symbolic role as the figure in whose name justice is carried out, and law and order is maintained.

Although civil and criminal proceedings cannot be taken against the Sovereign as a person under UK law, The Queen is careful to ensure that all her activities in her personal capacity are carried out in strict accordance with the law. https://www.royal.uk/queen-and-law

The Queen can refuse to assent to a law passed by Parliament to execute Boris. The Queen can also pardon Boris Johnson, even if Parliament passes a law to execute him, and royal assent is obtained. The Queen can dissolve Parliament, and the Queen is the head of the Armed forces, and can ask the military to remove MPs who refuse to leave the House if Parliament is dissoved for a General Election. Parliament's course of action is what is the active factor in creating a constitutional crisis, and using the monarch to get the people's voice heard through a General Election would be a supreme historical irony.

A rather neglected part of the full Supreme Court judgment on prorogation in paragraph 55 says remember “always that the actual task of governing is for the executive and not for parliament or the courts”.

The crucial error that the UK Government made in presenting their case before the Supreme Court which started on 17th September 2019, following the Government’s decision on a long prorogation of Parliament on 9th September, was in not demonstrating that the concept of parliamentary sovereignty involves much more than just how long and when Parliament sits. It involves governing in a complex, increasingly international world. We in the UK have evolved over the centuries two separate systems: firstly a separation of powers between the judiciary and Parliament; and, secondly, a fusion of powers between the executive, consisting mainly of MPs on the frontbench of the House of Commons, and the official Opposition who communicate through the “usual channels” and backbench MPs from different parties as well as a few independents. The current deadlock in Parliament and postponement of exiting the EU after the referendum, which has gone on for three years, has meant that the functioning of the fusion of powers between the executive and MPs has broken down and that should have been stated from the outset by government lawyers to the Supreme Court.

The fact that the Withdrawal document proposed by 27 EU countries has been defeated three times by the present Parliament raises profound questions for the government about UK MPs readiness to ever endorse the EU referendum decision. This political change in the conduct of government and accountability to Parliament following a referendum should have been the central argument raised by government lawyers during the hearings in the Supreme Court to explain the background to the decision of the government on prorogation. Nor did they bring before the Supreme Court the Government’s view, repeatedly expressed in Parliament and elsewhere, that Speaker Bercow, whose favourable views on the UK’s continued membership of the EU he had made abundantly clear, had called in question the most precious attribute of a Speaker – namely, their impartiality. Nor did the government in the Supreme Court question in depth the legality of the very recent but highly relevant changed procedure of the House of Commons allowing the ‘Benn’ Act to pass rapidly into law on 9th September 2019. Nor did they challenge the Cooper/Letwin Act passed earlier. The Supreme Court was never told in unequivocal terms that prorogation was a failsafe against this type of legislation affecting the ability of Her Majesty’s Government to fulfil the referendum result through Article 50. Now it may be argued these events coming after prorogation were not relevant to the case, but clever advocacy could have got around that objection.

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