24 September 2019
The final paragraph adds to the original email.
It could not be worse for the Government. The Supreme Court has decided unanimously that Johnson’s prorogation was unlawful and is of no effect and it has accepted the most extreme remedy. It has resolved to take agency in the matter away from the Prime Minister and place full discretion with the speakers of the two Houses. We may rely on Bercow to take full advantage of the powers which the Court has placed in his hands and the Commons to perpetrate every kind of nuisance to frustrate the Government’s business. We will aim off the longer-term implications till the last paragraph. Let us instead focus narrowly on the immediate implications.
Johnson’s position is acutely problematic. It will be difficult to find any fig-leaf for defiance in the face of the Court’s unanimous decision. Although Johnson’s commitment to leave the EU by 31 October is not quite in tatters, it is hard to see how he can maintain any kind of negotiating position in the face of the Benn Act, against which this morning’s judgement may be taken to remove any basis for legal challenge. Nor is he able to go to the country, with Parliament twice refusing to let him do so before the (now quashed) prorogation. Presumably he could resign, though it does not seem that his rush back from New York is to do so. In any event, the condition shown in Brighton over the last few days by the Labour Party makes it hard to see how an alternative government could be formed. Corbyn must be counting his blessings that events have taken attention away from the shambolic first few days of his conference. And by the way, what now of the Tory bash?
It is daunting that a Court judgement should cloud the view of an orderly way forward. Not so long ago, it would have been out of the question for judges to vote unanimously to add to the nation’s uncertainty. I cannot say what cunning wheezes Cummings may have up his sleeve: if Johnson tries to hang on, he is as likely to ask his consigliere to fall on his sword as to double down. Nor can I say how the public may respond, but it could be that Parliament versus the people plays differently in the face of a unanimous judgement for the former.
In short, we’re in a mess. Until now, Boris has been betting that his antagonists would drive the electorate into his arms. His supporters may seek to spin the judgement that way. He could yet turn out right and win his election but it’s an agonising process. And if he’s wrong, we are no further forward, presumably with another hung parliament. That is what I expect this morning and I do not relish it. In the long term, the Courts have made a ferocious land-grab. Their stance is of a piece with post-war developments, with the victorious Allies promoting judicial supremacy in Europe to restrain the excitable locals. Nonetheless, I’m still surprised it’s come here with such brio. I can’t say how it will play out, with the most likely thing that more policy will be subsequently litigated. This may be a good thing: for example, it might hold back asset seizures by the Corbyns of this world. But it’s a new world for us.