Boris Johnson’s legal defeat is total, and the constitutional experts and lawyers who have been alarmed by the way he has played fast and loose with the ground rules of British governance have every reason to be jubilant.
The unanimous ruling nullifying his prorogation is a case that will make it into legal textbooks 100 years from now. By bringing this prerogative power, exercised in the name of the Queen, within the scope of the law, it makes us more properly a constitutional monarchy. By defining parliament’s “constitutional functions” and making it unlawful to frustrate or prevent these via suspension, the Court also entrenches its constitutional position in a novel way.
Moreover, the fact Brenda Hale, who handed down the withering verdict in words of crisp fury, could carry a fully united bench of 11 justices with her makes her a chief justice of the very highest order. This, recall, is a highly contentious judicial question: a couple of weeks ago the English and Scottish courts had given two very different views. Even the late great Lord Bingham, as Senior Law Lord, could not carry a united bench in the landmark Belmarsh ruling against indefinite imprisonment of foreign terror suspects without trial: two of nine judges dissented from the reasoning, albeit in different directions. For her benchcraft, at least, Hale may now fairly be compared with Earl Warren, the American Chief Justice who took great care to build unanimity for the historic 1954 ruling in Brown v Board of Education, which ended racial segregation in American schools. The lack of dissenters helped end that argument, giving the ruling a finality which has rarely been enjoyed by rulings handed down by a more divided court, including among many others, Roe V Wade on abortion rights.
So hats off to the campaigners and lawyers, foremost among them Prospect regular Jolyon Maugham, who have worked tirelessly to pursue this case to the end, and made constitutional history along the way. From that historical perspective this looks like a victory that will endure.
But what about the political—and more immediate—effect? Effects which, at this most fateful of moments, include the composition of the next parliament and government and, potentially, Britain crashing out of the EU without a deal in as little as five weeks.
Here, I am afraid, I am less confident. For the prime minister to be wrapped over the knuckles by the highest court in the land for “suspension of parliamentary democracy” is not, you might have thought, a great look. And yet in his immediate remarks from New York, Boris Johnson sounded relatively chipper. Why?
Well in those remarks he tried out what will, I am sure, be his lines through the weeks to come. He “would respect” the ruling, but also insisted that the claimants and many parliamentarians were unfortunately bent on “frustrating” the people’s choice for Brexit. Meanwhile, a No 10 source launched into the judges: “We think the Supreme Court is wrong and has made a serious mistake in extending its reach to these political matters.” Johnson is gearing up for a populist “parliament vs the people” election campaign, which will be more effective the more of the Brexit Party fringe it succeeds in mopping up.
Perhaps as a result—and despite his Tiggerish, nonchalant pose—there were signs of him doubling down on his hardline strategy. He was, he said today, still going to “get on” with leaving on 31st October, and seemed at pains not to preclude a second prorogation more plausibly rationalised by a Queen’s Speech, which—whatever its real purpose—would still work to run down the clock.
With most of the polling now suggesting most voters wish Britain were remaining in the EU, a dash for hard Brexit might seem perverse. And yet. There will be populist power in a “tell them again” rallying cry. Still more importantly, the coming election is not about winning over a majority of the overall electorate, only having enough voters in enough places to clean up under first-past-the-post. And that, of course, is a good deal easier when the opposition is as divided as it is today—and twice over.
First of all, in current polls, Labour and the Liberal Democrats are roughly splitting the anti-Conservative vote, just as they did in the Thatcher landslide years of 1983 and 1987. And secondly, as I’m observing at close hand as I write these words from Brighton, Labour is currently more bitterly divided than I can ever remember. That was evident even before the conference opened, with the crass attempt to abolish the century-old post of deputy leader in order to pull one over on Tom Watson. One ordinarily measured soft left MP told me last night this gambit had come within hours of provoking a final split between parliamentarians and the wider party, which would have meant “Labour as we have known it ceasing to exist.”
With sectarianism at current heights, Johnson will enjoy a free hand to challenge parliament and say: “OK, you wanted to come back here, but why?” And parliament will struggle to answer. For months it has been against everything—the deal, mooted different deals, a no-deal, an election, a referendum—and in favour of nothing except delay. Divided MPs have made themselves sitting ducks for Johnson to run against, in the same way that Trump runs against Congress.
Politics is fluid, and nothing is guaranteed. Many Conservatives will be appalled by the legal mess Johnson has led his government into. This could yet produce trouble that will run out of control. A no-deal, should it prove the immediate practical disaster many expect, could bury Johnson. So could negotiating a deal if it re-exposes his Right flank to Nigel Farage. But there is also a chance—a significant one—that Johnson could brush off his defeat in the courts and charge to victory at the ballot box.
Should that happen, while the letter of the British constitution has been rewritten today, the immediate lesson that our politicians would draw would be very different. Namely, that there are no prizes in complying with its spirit.