Queen breaks law – but badly advised

In a stunning denoument, Britain’s Supreme Court has ruled that if you want Brexit, you really need to vote for Boris Johnson.

Well, not exactly …  The Court decided – unanimously – that Boris’s advice to the Queen to prorogue Parliament for five weeks was unlawful – and it follows that the Queen’s decision was null and of no effect – in effect Parliament was not prorogued at all.

The advice was unlawful “because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.”

Serious stuff.  For those old fogies who thought that the courts were reluctant to intervene in political matters (and in particular those involving the functioning of Parliament), it’s a reminder that they are a few decades out of date.  The notion that Parliament sets the rules for controlling the executive and emphatically rejects any intervention from the courts to come in and fix up a problem is dead.  This might cause some problems for future parliamentarians. On the wording above, the courts ought to be able to direct Parliament to sit and to adopt specific rules of procedure, should the court decide it is necessary to ensure Parliament can carry out its constitutional function to the court’s satisfaction.  It’s just a shame that this intervention comes a mere 378 years too late to prevent the English Civil war between the Crown and Parliament.

The decision is the culmination of a long march of the judiciary into what was formerly purely government decision-making.  Some approve of this because they like the results.  Others are reassured by the idea of decisions being reviewed by an expert professional elite, removed from the murky compromises of majoritarian rule.

However, the risk of having your umpires getting into the rule-making itself is that they are seen as unelected politicians – as is now the case in the US.  And at least you can get rid of elected politicians if their accumulated decisions become collectively objectionable.  Politicians are not great theorists as a rule but one wonders at what point the expansion of the judiciary’s political role might spark a political response.

Meanwhile, are those who are saying this is a defeat for Boris getting the mood and the mechanics right?  It may be that the deeper courts reach into government processes, the less shocking are findings of illegality.

Johnson has largely achieved his goal of dividing the electorate into clear pro and anti-Brexit groupings, and in talking up the lengths to which his ‘elite’ opponents will go to stop Brexit.  The court decision rather plays into that narrative.  Meanwhile, the government is gearing up to recall Parliament, which provides even more scope for his opponents to perform the role which he has dictated for them.

The possibility of course is that the anti-Brexit forces take the next big step, chuck Boris out and engineer a second referendum to ‘get the right result’.  It’s hard to think of a measure which could more strongly unite the pro-Brexit factions.  But the risk for Boris personally is that divisive political issues can still take a while to settle – it took a series of elections in the 1970s before Britain elected a government with a mandate to decisively repudiate extra-legal trade union power.  And no doubt Johnson would want a clear enough mandate to ensure Parliament “can carry out its constitutional function” to the Supreme Court’s satisfaction.