by Paul Ellis, Legal Officer
29th August 2019
When I was a teacher of law, one of my favourite classes concerned the rule of law. To make a potentially rather dull and theoretical topic more engaging for my students, I devised a fiendishly complicated game. The game had a board with a start and a finishing line, some randomly positioned snakes and ladders and a Monopoly-style jail. Students moved their counters around the board, or failed to, by throwing an ever-changing number of dice of different colours and sizes, including some novelty and poker dice. The students were not told the rules of the game, and it quickly became clear to them that any ‘rules’ were different for different students and changed frequently without notice.
The point of my little exercise was to demonstrate Albert Venn Dicey’s analysis of the rule of law – the principle that all laws, to be effective, should apply equally to everyone, be prospective and reasonably clear, certain and publicly discoverable, and that they be fairly and impartially applied. These principles are more important than any individual law, and whilst compliance with them does not guarantee democracy and just laws, it is a necessary precondition for them. Without the rule of law, the exercise of authority must be tyranny and people’s response will be inevitably tend towards anarchy. My classroom ‘game’ certainly moved swiftly from the former to the latter!
I later asked the kids what they thought of my game and received the highly memorable reply from one frustrated hijabi-clad girl, who had spent almost her entire game trying to throw the mystery combination to get out of jail, that it ‘sucked like a porn star, sir’. The name that I had chosen for the game was ‘Dicey’, in honour of the great Victorian jurist, and I doubt that there was a student present who will not, for the rest of their lives, get a flashback to that game whenever they hear the name of A. V. Dicey mentioned.
Dicey’s name has been cited frequently by remainers over the twenty four hours since Boris Johnson announced that he had advised the Queen to prorogue parliament for a longer than normal period in the build up to Brexit. However, remainers’ sudden conversion to the rule of law makes them utterly unconvincing democrats. It is remainers who have campaigned relentlessly to ignore the outcome of the 2016 referendum, often on the basis of an undisguised contempt for people they regard too old, white, undereducated or poor to have their vote recognised as legitimate. Remainers in the House of Lords that have casually and repeatedly ignored the Salisbury Convention that as the unelected chamber the Lords must not frustrate the manifesto commitments of an elected government. In the Commons, back bencher and opposition MPs have sallied far beyond their proper role of holding the executive to account, to attempt to become back seat drivers in the UK’s negotiations with Brussels. Most scandalously of all, the person upon whom the enforcement of the rule of law within parliament falls most directly, the Speaker of the House of Commons, John Bercow, has time and again demonstrated his bias, even to extent of driving a car with a ‘Bollocks to Brexit’ bumper sticker proudly displayed.
With political events now moving very quickly, it is worth taking a moment to recall and fix in our minds his statement of yesterday, sent shortly after the prorogation was announced. The proroguing of parliament would be, Bercow fumed, ‘a constitutional outrage’; it was ‘blindingly obvious’ that its purpose was ‘to stop parliament … performing its duty in shaping a course for the country’; ‘shutting down parliament’ is ‘an offence against the democratic process and the rights of parliamentarians as the people’s elected representatives’; and by the move the Prime Minister ‘undermine(s) his democratic credentials and indeed his commitment to Parliamentary democracy’.
The facts are that a prorogation of parliament, at the prime minister’s discretion, is a normal part of parliamentary procedure and is now very long overdue. A month-long conference season recess is also normal at this time of year. Yes, Boris is no doubt also using this as device to make it more difficult for remainer MPs to block Brexit, but he is acting within the constitution and the ultimate purpose of the exercise is self-evidently to restore parliamentary democracy, rather than allow parliament to be forever subjugated to a foreign power against the expressed will of its people. Speaker Bercow’s polemics about a lack of an offence against and a lack of commitment to parliamentary democracy are wild, wrong and dangerous.
The UK’s unwritten constitution relies upon convention. It offers flexibility but also uncertainty in unconventional times. In such times, the role of Speaker in enforcing the rule of law might be expected to offer a rare instance of stability, but instead John Bercow has hopelessly compromised himself as an impartial adjudicator of Commons rules. It is Bercow, not Boris, that is undermining democracy, by his hollowing out the rule of law upon which it stands. Parliamentary sitting time before 31 October may be curtailed, but there is still more than enough of it for us to see extraordinary scenes stemming from this abdication of due impartiality: and conceivably the collapse of order in the Commons chamber altogether. After all, why should a Brexit-supporting MP now defer to his umpiring any more than one of my students playing the mug’s game ‘Dicey’ to mine?