Well… were they right or were they wrong? Should they have been involved in the first place? And – right or wrong – what should happen now?
“They”, of course, are the eleven Supreme Court judges who ruled unanimously yesterday that Boris Johnson’s decision to suspend Parliament for five weeks before holding a Queen’s Speech on October 14 was “unlawful”. It was, by any standards, a devastating ruling for the most powerful politician in the land. It raises a whole string of questions, but the two most obvious are whether the court was right to reach the judgement and what should happen next.
Johnson was found to be guilty of “frustrating or preventing” parliamentary democracy. The only consolation for him was the court did not rule that he had actually lied to the Queen when his ministers asked her to approve the prorogation. But he can take little comfort from that. Nor can he take much comfort from the fact that other judges in other courts reached a different conclusion. A fortnight ago the most senior judge in England and Wales, Lord Chief Justice Burnett, ruled that it was a matter for politicians rather than the judiciary.
But Johnson has accepted the Supreme Court ruling. Realistically, he had no choice. But that does not mean he agrees with it. He doesn’t, and it will be for future constitutional experts to debate whether the court was, in effect, making a decision on a political matter and whether it is part of a wider trend for politicians to use the courts for their own purposes. Richard Elkins, professor of law at Oxford University, believes this is a milestone. He wrote: “It is part and parcel of the rise of our courts in our constitution, which is bad for democracy, bad for the rule of law and bad for the judges themselves – many of whom recognise they should not be deciding political questions.”
But the Supreme Court is what its title suggest: it is supreme. And the fact is that no sitting prime minister has ever found himself in as deep a political and constitutional hole as this. It has, quite simply, never happened before.
Perhaps it’s worth remembering that there is nothing remotely unusual in a prime minister seeking the prorogation of parliament. Indeed, the system depends on it. And in this case it’s true that the present parliament had sat for a very long time – longer than any since Charles I was on the throne. What Johnson was accused of doing, though, was trying to “stymie” (in the words of the judges) the ability of parliament to block his promise to leave the European Union on October 31 without a deal if Brussels cannot come up with something acceptable. If that was indeed his motive it has backfired sensationally.
It has played into the hands of his many opponents in the House of Commons (some in his own party) and into the hands of the EU negotiators on the opposite side of the table. It makes his threat to leave the EU “do or die” look pretty empty.
So what happens next in Parliament?
Brace yourself for this, but it is entirely possible that the prime minister will call for yet another prorogation. That could happen if MPs refuse to allow a recess for the Conservative Party to hold its conference next week. But, as I write, that seems pretty unlikely. He could also call for one to allow for a new Queen’s Speech to happen. That would mean he could announce new legislation, which might have the effect of boosting his party’s popularity in the event of an election. And an election, many believe, is ultimately the only way out of this unholy mess. So what of the Labour Party’s tactics?
Within a few minutes of the court ruling Mr Corbyn demanded both an election and the resignation of Boris Johnson. What he refused to do was to call a confidence vote. That might seem a little odd given Johnson’s complete failure to command the support of the House of Commons, but Corbyn has problems of his own. Massive problems. No leader of the Labour Party has ever been so unpopular in his own party. His line is that he wants to wait until after October 31. That’s because the Benn Act, passed only a few weeks ago, requires the prime minister to ask Brussels to delay Brexit for three months if he has not managed to get a deal through parliament. It’s possible we would then have another referendum.
So what do you make of all this? Was the Supreme Court right to do what it did? Should Boris Johnson resign? Should Brexit be delayed or should we leave without a deal? If there is a delay should we have another referendum and how would you vote this time? Or are you planning to lock yourself in a dark room with a case of whisky and stay there until they’ve all managed to get their act together? (Choice of booze is optional!)