The decision of the Supreme Court has set Britain on a path to a new constitutional settlement that today’s young people will witness the effects of, as the ever longer tail of Brexit continues to extend its reach.
The historic judgement cast by the Supreme Court that the prorogation of Parliament was ‘unlawful’, was the culmination of two decisions taken by the eleven justices. The first, whether the suspension of Parliament for five weeks was a political matter or a legal one, (and thus justiciable) and secondly; whether it frustrated or prevented the ability of Parliament to hold the Government to account without ‘reasonable justification’.
It is the first of these decisions that is the most significant. When Lady Hale stated that the court found the dispute a legal matter, it marked a totemic turning point in the operation of Britain’s unwritten constitution. For many this was the moment the Supreme Court, a baby of an institution — only established in 2009 — flexed its muscles, and opened Pandora’s Box.
The Brexit revolution has thrown up questions on Britain’s place in the world, the issue of Ireland, the functioning of the two main parties, our form of democracy and now about the constitution. The decision of the court to involve itself in a dispute between the Executive and Parliament is only a continuation of this breaking of precedent.
The holding of referendums in 2011 (Alternative Voting), 2014 (Scottish Independence) and 2016 (Brexit), tilted British democracy from a representative parliamentary system towards a direct democracy model, governed by the people, who expected immediate results. Since Britain voted to leave, Cabinet responsibility has dissolved, discipline within the parties has been severely torn and most significantly, MPs have ripped up the precedent concerning the use of SO24s — Emergency Debates — in the House of Commons and with the aid of John Bercow, severely damaged the impartial reputation of the Speaker. As a result, Parliament has increased its power over the Executive, gaining the ability to paralyse and torture the Government, bruising it left, right and centre as though it were a stuffed paper donkey at a child’s birthday party. In October, Parliament has the potential to instruct the Government’s actions in international negotiations with the EU. This is a dangerous and unprecedented level of power over the Executive.
The long-term effects of all this constitutional smashing may be the need for a written set of rules, in the style of France or America, for governing our institutions. Or at least, a fundamental rethink. I doubt MPs will be prepared to forgo Parliament’s newly won powers. It is also equally difficult for the Supreme Court to retreat from the centre stage of politics, now that it has embedded itself in the national psyche as an institution that prevented the actions of a Brexit Government. With the latter now playing a more important role, especially if the European Court of Justice’s power over the UK is dissipated, the court may need to conduct American-style confirmation hearings to assure the public of the Justice’s independence.
However, in the immediate short term, the fundamentals concerning Brexit have still not changed. The Government continues to be at loggerheads with Parliament over No-Deal and the ‘Benn Bill’ Legislation, that requires Boris Johnson to extend Article 50; and, with Corbyn refusing to step aside, no alternative Government is likely to form.
On LBC, the constitutional historian, David Starkey explained how the last time Britain was in this paralysis, only Civil War brought a solution. That won’t happen today, but a resolution can indeed be found from the public. A General Election is the only way for the fundamentals to be altered, but both the Government and Parliament need to ensure the vote is cast at the most optimal opportunity. For Boris Johnson, this is pre-October 31st, and for the opposition, (who will then be able to rely on a broken promise by the PM) to meet the Halloween deadline, thereby achieving a split Brexit vote between the Brexit Party and the Conservatives.
For Boris Johnson, this is the most perilous stage of his premiership yet. Despite Tory MPs’ complete radio silence today, Johnson will need to assure Conservative moderates of his respect for the judiciary and his efforts in securing a Brexit deal. Paradoxically though, in the event of an election, a poorly rehashed version of May’s deal, could put him at risk from the Brexit Party. Any conciliation towards Parliament over the next few days will undermine his electoral strategy of appearing to be on the side of Brexit voters — the so-called ‘people’ versus the ‘elite’.
The tightrope that Boris Johnson stands upon is getting wobblier, with pressure mounting in Westminster, and now Parliament securing additional time to introduce legislation against a no-deal. For the Prime Minister, his best hope is that the electorate will catch him as he tumbles.