The Supreme Court has ruled that Boris Johnson’s decision to prorogue Parliament was “unlawful” - prompting questions about the prime minister’s future as the UK heads into unchartered waters.
Labour leader Jeremy Corbyn has led calls for Johnson to resign, while others have gone a step further by demanding that the PM be arrested or impeached.
Labour MP Liam Byrne tweeted that when the House of Commons is recalled tomorrow, “impeachment of Boris Johnson should begin immediately”.
So is the PM likely to be impeached?
According to Parliament.uk, impeachment is when a politician is accused of “high crimes and misdemeanours, beyond the reach of the law or which no other authority in the state will prosecute”.
The first recorded impeachment was in 1376 and the last in 1806, says the website, which adds: “This procedure is considered obsolete”.
The BBC notes that no British PM has ever been impeached, only ministers, and says it is “highly unlikely” that Johnson could face such action.
Could Johnson be arrested over prorogation?
As BBC home affairs correspondent Dominic Casciani explains, the Supreme Court case was not about criminal law, but rather constitutional law.
“If someone complained to the police about misconduct of public office, the police would have to assess it accordingly,” he says. “However, the bar to prove a criminal offence is very high and there is no suggestion the prime minister broke the law in that way.”
Andrew Sparrow at The Guardian says: “What is less clear, however, is what will happen if Boris Johnson does try to defy the spirit or the letter of the law.”
Former director of public prosecutions Lord MacDonald has said that Johnson could face a prison sentence if he now fails to comply with legislation requiring him to delay Brexit.
What else did Lord MacDonald say?
The former defence lawyer has warned that Johnson risks being found in contempt of court if he ignores the terms of a bill designed to prevent a no-deal withdrawal that passed through Parliament earlier this month, reports Metro.
MacDonald said: “It is by convention that if you are found guilty of defying a court order then you are jailed.”
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In a letter to Conservative Party members at the time, Johnson wrote: “They just passed a law that would force me to beg Brussels for an extension to the Brexit deadline. This is something I will never do.”
But former attorney general Dominic Grieve - who was sacked for rebelling against the Government by voting in favour of the bill - said: “A prime minister is subject to the law of the land just like anybody else.
“If he were to attempt to ignore it, the Government would be taken to court and he would be ordered to send the letter [to the EU].
“And if he didn’t send the letter, he would be sent to prison for contempt.”
Downing Street has maintained that the PM will neither resign nor comply with the order to delay Brexit, but has failed to explain how this apparent contradiction could be reconciled, says The Guardian.
As the Financial Times notes: “This is unprecedented; a prime minister has never gone rogue like this before.”
What about misconduct in public office?
The PM is subject to the same laws as everybody else, but as a holder of public office, there are also additional legal requirements upon him.
Misconduct in public office is an offence that carries a maximum sentence of life imprisonment. A crime is committed “when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office”, says the Crown Prosecution Service (CPS).
As a “public officer”, Johnson would be breaching the misconduct law if he fails to comply with the new legislation requesting a Brexit extension.
That means Johnson could be arrested, and ultimately imprisoned, for breaking the new law.
However, the legislation says that an offence has only been committed when an act (or lack of one) is done “without reasonable excuse or justification”.
Johnson could argue that honouring the EU referendum result was reasonable justification. It would be up to the courts to decide whether that argument holds water.
And private prosecution?
The right exists to bring private prosecutions for breaches of the criminal law. Or to put it another way, if the police and prosecuting authorities decide not to prosecute someone, a private individual can.
“In principle, there is nothing wrong in allowing a private prosecution to run its course through to verdict and, in appropriate cases, sentence,” says the CPS website.
As such, if public prosecutors failed to charge Johnson, a private individual could potentially put forward a case against him.
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