'The king hath no prerogative, but that which the law of the land allows him'. So James VI & I was told by the courts in 1611 and so Boris Johnson has, in effect, been told today. There is something weighty, something dignified, about that. The Supreme Court’s ruling this morning, upholding the Court of Session’s earlier ruling on the lawfulness or otherwise of the government’s attempt to prorogue parliament, should be welcomed by everyone, be they a Leaver or a Remainer.
Brexit, and its rights or wrongs, is both at the heart of this case and tangential to it. At the heart because Brexit, the greatest constitutional kerfuffle of our lifetimes, renders these extraordinary times, and extraordinary circumstances justify extraordinary actions. That, indeed, was at the heart of the political case for a five week prorogation of parliament. Nothing about the situation in which the country finds itself is normal; therefore the government must reserve the right to act abnormally.
But where it blundered – and this was at the heart of the Court of Session’s ruling earlier this month – was in pretending that abnormality was in fact perfectly normal. Not so, Lord Carloway said: your motives are as suspect as your actions.
This morning the Supreme Court evaded consideration of motive, focusing merely on effect. But by upholding the Court of Session’s ruling it surely tacitly endorses Lord Carloway’s assessment. More to the point, however, it also argues that the prorogation is unlawful precisely because these are extraordinary circumstances.
From which we may deduce that a typical prorogation, lasting just a few days, allowing for a Queen’s speech to be prepared would not have been deemed unlawful. That would have been conventional and wholly within the customary manner of parliamentary business. But shutting the doors on parliament for five weeks takes us into a different place. You took it too far, prime minister, far too far.
In ordinary times, the courts are happy to grant the government considerable latitude. The government ignored that and has, today, paid a price for doing so. As one Tory lawyer puts it, 'The constitution has a number of loaded revolvers lying about the place, on the strict but always unspoken understanding that they would not be picked up or used. Dominic Cummings said, "f*** that, let’s use this one". And promptly shot his boss in the ass.'
Ah, well. As Anton Chekhov put it, 'If in Act One you have a pistol hanging on the wall, then it must fire in the last act'. Today it went boom.
I am not so sure as some that this judgment ushers us towards an American-style supreme court, the subject of endless political wrangling and partisan chicanery. Aside from anything else, this judgment is both stunning and modest. Stunning in the way it rebukes the government; modest in terms of the remedy it suggests. For it makes no recommendation, imposes no requirement on the government, issues no instructions to the prime minister save this: Parliament is still in session.
Time and again, Lady Hale’s verdict notes the unprecedented, extraordinary, situation in which we find ourselves. But she also, in essence, tells the government that so long as it follows convention and pays due tribute to long-established custom it will be fine. It is the government, not the court, that is tearing up convention and the court’s duty – its modest duty – is to insist that custom be followed.
The government must be accountable to Parliament and it cannot be so if it seeks to suspend parliament for longer than is usual. Ergo, it must not prorogue Parliament for longer than is necessary. That has nothing to do with Brexit save to the extent that Brexit is the cause of this crisis. In that respect, Brexit is tangential to the essential principle under discussion.
Hence, in one sense, the modesty of this judgment. The government has provoked the courts into acting, for the government crossed the line from gamesmanship, which is disagreeable but acceptable, into cheating which is not. The court holds that the ends – whatever they may be – do not justify all means; a Burkean position against a government of Rousseaus.
But, to swing back to the politics, was Brexit not an argument for taking back control? Was it not time for our parliament to make our laws and to hold our elected government to account? Why yes it was. The Supreme Court of the United Kingdom of Great Britain and Northern Ireland upheld that principle this morning. I see no reason why that should enrage or even disappoint anyone. For what could be more British than a 17th century school of judicial thought constraining a 21st century government?
Of course in ordinary circumstances a judgment of this sort might persuade a prime minister he – or she – had no option but to resign. But then as everyone agrees these are exceptional circumstances and this being so I imagine Boris Johnson will consider himself under no obligation to observe the conventional norms of British politics. That, mind you, is how he brought himself to this humiliation.