There is a difference between assent and agreement. One can assent to the Supreme Court’s ruling yesterday – it is after all the highest court in the land – without necessarily agreeing with it. Such is Boris Johnson’s view. And ConservativeHome’s too, for what it’s worth.
In simple terms, the High Court ruled recently that prorogation is a matter for Parliament, not the courts. It concluded that those appealing against the prorogation were seeking to expand the legal concept of Parliamentary Sovereignty in order “to invite the judicial arm of the state to exercise hitherto unidentified power over the Executive branch of the state in its dealings with Parliament”.
A relatively minor detail of the Supreme Court’s contrary ruling today may help to demonstrate how it has broken new constitutional ground, and exercised that “hitherto unidentified power”. It floated the prospect of the executive, through the use of the prerogative, preventing Parliament “from exercising its power to make laws for as long as it pleased”. Near the heart of its ruling was the belief that the courts must be vigilant in warding off such a prospect.
By contrast, the High Court said baldly that “we do not believe that it is helpful to consider the arguments by reference to extreme hypothetical examples, not least because it is impossible to predict how the flexible constitutional arrangements of the United Kingdom, and Parliament itself, would react in such circumstances”. In essence, the High Court said that Parliament can cope. On the contrary, the Supreme Court was saying that it cannot. Either way, these are political judgements, not legal ones.
Your average Leaver may not grasp the intricacies, but he will take the point. So will many people who voted Remain but now believe that Brexit must be delivered. Some will still genuflect to the judges, believing that the judiciary is one of Britain’s few unblemished institutions. Others will denounce them, and lump in Lady Hale with Olly Robbins, Lord Kerr, Gina Miller, Tony Blair, John Major – as members all of an ascendancy class which conspires to use wealth, connections and lawfare to cheat ordinary voters out of what they voted for.
Perhaps we are now set on the path to American-style judicial hearings, perhaps not. Tomorrow, we will return to the constitutional implications of the court’s judgement. Today, we stick to the political ones.
The Continuity Remain campaign sees Johnson, perhaps rightly, as the last obstacle between it and Brexit’s revocation. Hence the vitriol, inventiveness and energy of the campaign against him. Rappers hold up models of his severed head. His enemies sniff around for evidence of corruption in his London mayoralty days. There is a frenzy about him having “lied to the Queen”. The Supreme Court steered well clear of that charge, and there is no evidence for any of the others.
So if Johnson himself can’t be toppled, his opponents must turn to the next best thing. First, get rid of Dominic Cummings – and with him the Government’s sense of purpose and direction. Next, with Cummings safely out of the way, persuade Johnson to surrender his position and sign up to extension. Then, with his credibility destroyed, and the Conservative poll ratings back to where Theresa May left them, force that second referendum – with no designation for Vote Leave this time round. Finally, bundle Johnson out of Downing Street and into burbling oblivion.
A striking aspect of the Supreme Court judgement is how little difference it makes to most of this. Yes, the Commons will huff and puff tomorrow, and threaten to blow Johnson’s house down. But it has already passed the Benn Bill. What is there worth coming back for, with a Queen’s Speech looming? The answer is: nothing much. The Prime Minister’s critics will send for papers, ask for copies of e-mails, crawl all over Geoffrey Cox’s legal advice. They will generate little light, but a lot of heat.
The Opposition will doubtless attempt to wreck next week’s Conservative Party Conference by holding awkardly-timed votes with the connivance of the Speaker. But the Government will doubtless cope somehow – even if Johnson does not, as he has every right to do, briefly prorogue the Commons at the end of this week. (The Supreme Court judgement might actually be helpful in that respect, since it mentions short prorogations approvingly.)
All in all, the options this morning are more or less as they were yesterdau. If no deal is forthcoming, Johnson could extend, and break his word. Or he not do so, and so break the law. Or he resign. Or else there is some mysterious fourth option unseen at present. If it exists, and has anything to do with the courts, the Prime Minister will have to be be very careful. For one effect of the Supreme Court judgement may be to put the wind up the Government’s law officers. Johnson needs Cox and Robert Buckland on side.
Johnson lost a battle today, and with it some room for manoeuvre, if he intends to return to the courts. It could be that he will be ousted by the Commons and replaced by Jeremy Corbyn – or that he will even seek to put Corbyn briefly in Downing Street himself. Or that some Ken Clarke figure will emerge to lead an establishment coalition.
But forming such a government would be more difficult than it might seem. And the significance of this week’s Labour Conference is that Corbyn’s position is even weaker than it was before. It might be that no-one can lead a government in this Commons, other than Johnson leading this Conservative one. Which would point to an election sooner rather than later. The Prime Minister is down but definitely not out.