The Supreme Court judgement is a huge blow for Boris, but not a fatal one

The Supreme Court has ruled unanimously against the Government: proroguing Parliament was unlawful. The order in council that gave effect to the suspension is null and void. Parliament will

reconvene as soon as possible. There is no question that this judgement is a huge defeat for the Government. The Prime Minister’s whole strategy and even his position are suddenly in doubt.

The Prorogation Crisis has come to a head. But what does the judgement really require?

In the first place, it does not mean that Boris Johnson “lied to the Queen” — still less that he should now resign. The judgement is careful to state that “there is no need for the court to

consider whether the Prime Minister’s motive or purpose was unlawful.” The Supreme Court therefore differs decisively from the Scottish Court of Sessions, which concluded that the Prime

Minister’s motive was other than the stated one. There is no suggestion that Boris Johnson deliberately mislead the Queen or the Commons. Hence there is no obligation, either legal or

political, for him to consider his position.

Secondly, the judgement does not imply any view, one way or the other, about Brexit. It is informally known that all eleven justices — like the vast majority of the judiciary and, indeed,

the legal profession — supported Remain. But this is not a judgement on the substance of the European issue. It relates to means rather than ends. It would be as improper as it would be

counter-productive for members of the Government or their advisers to cast doubt on the impartiality of the highest court in the land.

Thirdly, as has been argued before in these columns, the Supreme Court has, by ruling against a decision in what has hitherto been deemed to be the political realm, taken an irreversible

step towards becoming a constitutional court on the American or German model. If this prorogation is held to be unlawful, what else might not be challenged in the courts? The learned

justices have taken it upon themselves to intervene in the political process, in defence (they say) of two fundamental principles of the Constitution: parliamentary sovereignty and

parliamentary accountability: “The power to prorogue is limited by the constitutional principles with which it would otherwise conflict.”

In support of this entirely novel doctrine, the only authority they cite is the late Lord Bingham, who — writing in his private capacity as a jurisprudential scholar, not speaking as a Law

Lord — argued that such accountability “lies at the heart of Westminster democracy”.

But who is to say that the Prime Minister is not equally justified in seeking to put into effect the result of the referendum? Did not Parliament delegate the question of Brexit to the

electorate? And has it not frustrated that decision for more than three years? The argument from accountability cuts both ways: the Government is accountable to Parliament, yes; but

Parliament is accountable to those who elect it.

The question of who is in the right here, the Government or Parliament, is fundamentally political. It cannot be decided by a court, however high. Sovereignty ultimately flows from the

people, who merely delegate it to Parliament. The constitutional issues that have arisen from Brexit are not, under “Westminster democracy”, justiciable. They can be resolved in the

political are arena, and only in the political arena. By intervening in this arena to reverse an order made by the Sovereign on the advice of her ministers, the Supreme Court may have

brought the Prorogation Crisis to an end. In so doing, however, the Court has lit the fuse for a far more serious constitutional crisis.

In practical terms, what happens next? The Speaker, John Bercow, has in effect summoned MPs to return to the House of Commons tomorrow, thereby laying down yet another novel doctrine. In the

past, his role has been limited to achieving a consensus among the parties. Now, it seems, he has arrogated to himself the power to order them about. The Conservatives are entitled to

respond by reminding him that Parliament is normally in recess for the party conference season; unlike the Liberal Democrats and Labour, the Tories have yet to hold their conference. While

there is a case for convening the Commons for a symbolic session this week, Conservative MPs are under no obligation to return until after their conference in Birmingham ends a week

tomorrow.

No doubt Parliament will wish to scrutinise and debate the propriety of the Prime Minister’s decision to advise the Queen to prorogue, but there will be plenty of time for that next week.

Just now Boris Johnson is in New York, representing the country at the United Nations General Assembly and conducting negotiations on the side with European leaders and others. He, too,

should resist demands that he be summoned back to the bar of the House of Commons to answer the accusations of the Opposition. Before that happens, however, he might consider bringing new

sources of advice into Downing Street.

Will Brexit bring down a second Conservative Prime Minister in one year? That is possible but by no means inevitable. Boris Johnson has been hoist by his own petard, certainly. If he thought

that prorogation would make Brexit easier, he now knows better. The only thing that will resolve the parliamentary deadlock is an election, which the Opposition has denied him. But he can

and, if he retains the support of his Cabinet and his party, undoubtedly will press on with delivering Brexit.

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