The verdict handed down by the Supreme Court is as disastrous for the Government as it could possibly have been. Not only was prorogation ruled justiciable by the courts, but even the limited tactical win of the Prime Minister’s advice being ruled lawful was unanimously rejected by the 11 justices.
More remarkably still, Lady Hale swept aside the conventional understanding of Article IX of the Bill of Rights, which protects proceedings in Parliament from the jurisdiction of the courts, by declaring that prorogation might occur in the Lords’ chamber but was not a ‘parliamentary proceeding’.
The political consequences of this are likely to be eye-catching and severe. Not only has the Supreme Court annulled the prorogation – legally speaking, it never happened – but it has done so on the eve of the Conservative Party Conference.
David Cameron identified the conference as one of the two most important moments of the conventional political year, and it normally offers a few days of guaranteed media spotlight in which Boris Johnson was hoping to set out his retail offer to the nation. He now faces the prospect of sharing that spotlight with continual drama in the House of Commons – including a direct clash between his own keynote speech and next week’s Prime Minister’s Questions.
On top of that, he may now need to keep most of his MPs in London to fend off votes of censure and other procedural chicanery from the Opposition.
Johnson also faces a bigger question of how he responds. This is an extraordinary blow, and cements the story of his premiership so far as an unbroken string of increasingly severe defeats. Calls for his head currently seem to be confined to the usual suspects, with even the Prime Minister’s supporters must now be asking themselves, between this and his timid acquiescence to Hilary Benn’s new law mandating an extension of Article 50, what the plan is.
The Prime Minister likely recognises – and if he doesn’t, Dominic Cummings certainly will – that he really has nothing to lose by fighting on. History would judge him so damningly if he stepped aside now that, like Macbeth, he is stepped so far in blood that retreat likely holds as many terrors as continuing to advance.
In that light, the unorthodox circumstances of next week’s conference might even give Johnson an opportunity to highlight this theme, making ‘the people versus the establishment’ the overarching theme of the entire event.
But even setting aside for now the strictly constitutional implications of this, it seems very likely that today’s ruling will have political implications which go far beyond the fortunes of an individual ministry.
Public law Twitter is already hard at work trying to pull the veil of common law fiction – that even the most shocking judgement has always been the law, and that judges make ‘discoveries’ rather than decisions – over today’s ruling. But that veil is starting to fray, snagged on the thorny sight of commentators shifting from Miller’s being a no-hope case to the only proper understanding of the law in the space of less than a fortnight.
Today’s judgment is a change, in fact if not in theory, and one delivered by an institution which continues to insist on traditional treatment even as it sets aside its traditional restraints.
Constitutional affairs move at what is, compared to political affairs, a glacial pace – but with similar earth-moving consequences. If a clash between the judicial and political elements of the constitution was yesterday a suggestion on the horizon, it now feels inevitable. By stepping into the arena – or being dragged there, if you prefer – on a hugely polarising issue the Court has exposed itself to that polarisation. Political consent for judicial activism has been waning on the right since the passage of the Human Rights Act. Today’s judgment will very likely accelerate that trend.
How that change manifests remains to be seen. There is already talk of political hearings for senior judicial appointments, which would suggest a strategy of ‘leaning in’ to the Supreme Court’s evolving role and knowingly following the trail blazed by the United States. Whether an alternative route back to our traditional constitutional settlement exists, and a future government can be persuaded to try it, remains to be seen.
Miller II could yet prove to be a ‘Maastricht moment’ – an inflection point at which a previously ill-defined cause hardened into a movement. The ingredients are there: just as the European Research Group provided an organisational and informational backbone to Eurosceptics, so too could Policy Exchange’s Judicial Power Project do for opponents of what Lord Sumption, the former Supreme Court judge, termed ‘Law’s Expanding Empire’.
It might take decades for that movement to capture the leadership of the Conservative Party. It may never do so. Or it might find in Johnson that it already has. All that is certain is that it should not be left to the legal establishment to decide whether, and how, it is acceptable to resist the expansion of their role in our constitution.
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