The prime minister is gearing up for a populist election campaign and today’s Supreme Court ruling may not hurt his chancesby Tom Clark / September 24, 2019 / Leave a comment
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…