Boris rides the storm

The inevitable hail of editorial outrage has descended on the head of PM Boris Johnson after yesterday’s Supreme Court decision overturning the Queen’s prorogation of Britain’s Parliament.  He in turn has hastened back from the UN to resume the battle in a reconvened legislature.

The general line is gross-abuse-of-convention-thank-God-for-the-Supreme-Court.  For example, the Financial Times concluded in thunderous tones: “The 11 judges unanimously concluded that Mr Johnson’s five-week suspension of parliament was an unlawful attempt to silence MPs, at the very moment the UK, through Brexit, faces the biggest shake-up in its constitutional status for decades. “

But the most interesting – and indeed revolutionary – critique comes from the multi-talented Lord Sumption – perhaps the most intellectual and certainly the most interesting jurist of his day (do read it in full in The Times if you can).

He elegantly frames a basis for the relevant Parliamentary convention and the political justification for its overturning:

“Ever since the 18th century, ministers have made use of the power to prorogue or (until 2010) dissolve parliament for political advantage. There was a consensus that they should not abuse the power, but what amounted to abuse was itself a political question, not a legal one. What is revolutionary about the Supreme Court’s decision is that it makes the courts the ultimate arbiters of what political reasons are good enough.”

Then he establishes that Brexit is essentially a Parliamentary problem and offers a procedural view as to how it ought to tackle these sorts of things.

“The parliamentary process is fundamental in another, even more important sense. It is a mechanism for accommodating opposing opinions and interests in our society ….. A legislature whose membership reflects the balance of political parties is therefore a natural forum for compromise.”

And he uses the same procedural reasoning to condemn the government for its actions:

“It has sought to use the awesome prerogative powers of the Crown, but without the accountability to parliament that alone makes the existence of those powers tolerable. It has been determined to disregard our only collective political forum.”

It is magnificently put.  But the 1000 word limit forces a few omissions.  In particular, it would have been helpful to have more analysis on how Parliament has in fact tackled its awesome responsibility to hold the executive accountable.

A Parliament was elected in 2017 with four-fifths of members elected on a Brexit ticket and duly passed a law setting a date.  But over two years of political manoeuvering, and as is sometimes the way in democratic politics, the government failed to get a majority for its proposal.  Indeed it was plain that there was at no time a majority for any specific Brexit proposal.

This led to the formation of a new government led by Johnson.  It put forward a proposal and made clear it would use all its legal powers to pursue this. There was a good chance that a majority in the Parliament might not support it but the government hoped that public opinion and their divisions would prevent them from stopping it.

Good try – but it hasn’t worked so far.  Parliament got to work on holding the executive accountable.  The Speaker took control of the agenda away from the government.  A Parliamentary majority took steps to block implementation of the government’s policy. But that majority did not appoint a new government with a new policy – which could override the proposed prorogation.  Nor did it honour the convention of granting a government whose policy it rejected a fresh election – the remedy for Parliamentary deadlock in the Westminster system.

So you can see why the arguments against Johnson tend to focus narrowly on his use of prorogation and to its effect in reducing by five weeks the 27 month discussion opportunity since the last election.  Otherwise you might focus on the flailing of MPs and parties trying and failing to come up with a winning package.

The judiciary has been drawn into suggesting that Johnson has a legal duty to use the executive’s powers to keep Parliament in session, when the same Parliament did not use its powers to achieve a similar goal.  Sort of a fair play thing to give them time to get their act together.

It’s hard to deny the novelty – and the feeling that this goes beyond constitutional procedure.

Where Sumption’s argument gets wobbly is when he justifies the importance of (court mandated) Parliamentary procedure in achieving consititutional outcomes:

“The moral is that under our constitution 52 per cent cannot expect to carry off 100 per cent of the spoils. They have to engage with the rest. That is what parliament is for.”

Hang on a minute, mate.  The essence of our system is that a majority is allowed to carry off 100% of the spoils (particularly if it’s a binary choice between either 0% or 100%).  We rely on restraint, the other folk getting a turn and the threat of civil disobedience to stop this process going too far. Yes, talking to the other side is important – but it’s a reach to suggest that a shortage of engagement is the problem here.

There is also a question mark over Lord Sumption’s assumption that Johnson’s policy represents a grab for 100% of the spoils.  The EU has so far offered only two choices to the UK: an association very similar to EU membership or a no-deal exit.  Johnson has been using the legal deadline for Brexit – rather effectively – to force MPs to face up to the consequences of that or face an election in which that is clear.

And once they get over the pleasure of being back in Westminster, MPs are going to face these difficult questions again.

This might sink in quickly.  The Financial Times ends its excoriation by observing:

“The effect [of the decision] is to restore parliament’s ability to ensure the 2016 referendum outcome is respected, but not through a calamitous no-deal exit … The reconvened parliament should … pass a vote of no confidence in the premier. It should use its right to form a caretaker government that can secure an extension to the October 31 Brexit date and organise a general election”.

Parliament funked this choice before the prorogation.  Now the Supreme Court has told them to resit the exam, let’s see how they manage – and how the public respond.