Britain’s constitution endured a major earthquake today when the Supreme Court voided the prime minister Boris Johnson’s lengthy prorogation of parliament. This shocking result shows how the country’s polarisation is putting its institutions under strain by making a middle ground untenable.
There are many ironies (or paradoxes, perhaps) on display as the country wrestles with Brexit. One is how many Brexit sympathisers eulogise the country’s system of judge-made law, where people may not know they have broken the law until a judge has “discovered” it. How flexible and open to common sense, they say, compared the way “Continentals” (how I hate that way of lumping together such a variety of nationalities) use Napoleonic codes to define their legal systems. And yet they are not the ones cheering the intervention of Britain’s courts as they discover new legally enforceable principles when the traditional conventions that used to operate break down. After this ruling we now have a much stronger definition of parliamentary sovereignty against that of the Crown, represented by our Prime Minister.
It is an unexpectedly radical ruling, and it is quite surprising that all eleven judges assented to it, given the form of a few of them. But the government blocked off any middle ground, leaving their lordships with a choice between two extremes. Either the PM has total power to prorogue parliament for as long as he or she likes, without having to give any reason at all, or this prorogation was void – it never happened, as the court in fact ruled. The government offered no reason to the court for its action, other than “we can do what the hell we like”, beyond the need for a Queen’s Speech (which is perfectly reasonable in the circumstances). No reason was given why it should be five weeks rather than the normal one, or why the normal conference recess (under parliament’s control) should be part of it without parliamentary consent. Nothing was offered to the judges for them to conclude that they could intervene in principle, but not this time. And the same could be said for the remedies, with the government simply threatening to re-prorogue parliament. The government having closed all the escape routes in its ambition to have the most favourable ruling possible, it is not so surprising that the judges acted as they did.
The government’s approach here is part and parcel of its highly aggressive approach to its business, and especially that of Brexit. Whether it is inspired by the brutal ignorance and egotism of Donald Trump, whom Boris Johnson admires, or the aggressive chess game of his leading adviser Dominic Cummings, or both, is a matter I can throw no light on. First was the brutal treatment of dissenters within his own Conservative party, and then negotiating tactics with the EU reminiscent of a property deal, followed by the arbitrary prorogation. No space has been left for compromise or a middle ground.
Which doesn’t stop the Labour Party trying to occupy it, on Brexit if nothing else. I will comment in more depth on that party once its conference in Brighton is over. But it is showing the wisdom of the Liberal Democrats’ leader Jo Swinson in adopting a Revoke position in the unlikely event of being called to form a majority government. If your policy is to have a referendum, you have to present a Leave option, and take ownership of it if that is what the public chooses. Labour now finds itself suggesting that it will negotiate terms to leave the EU when it may well recommend their rejection. As former minister and union negotiator Alan Johnson points out, this is nonsense. I have a lot of sympathy for the Labour leader Jeremy Corbyn’s wish to find a compromise and start to heal the rifts, but he is a year too late for that. He should have stood behind the deal Theresa May negotiated and helped take the country out on 29 March. He will be unable to negotiate anything better. His chickens are coming home to roost.
And so the drama moves on to its next stage. How that will play out is anybody’s guess.