Wednesday 25 September 2019

Law makers and law breakers

The Supreme Court ruled that Boris Johnson's prorogation of Parliament was illegal so now we have the predictable calls for him and his Attorney General who advised him that his actions would be  legal to resign. Folk are so quick to criticise in this unforgiving social media age but it seems to me that Johnson broke a law that wasn't specified before he broke it. It's not as if he wilfully drove past a 30mph sign at 50mph, for example.

It's only in authoritarian countries that one is accused of breaking a law that didn't explicitly exist before you broke it. The strength of our unwritten constitution is that it can evolve with circumstances and be re-interpreted. But it also means that Johnson broke a "law" that hadn't been made up at the time he broke it. The Supreme Court made the law retrospectively after the event which, in this kind of case, it is entitled to do. But spare us the faux outrage, please, this is the most technical of infractions after all.

As for the Attorney General, this is far from the first time that the occupier of that post has advised that a course of action is legal only for the courts to take a different view. All normal for the legal profession.

But did Johnson mislead the Queen? Of course not. He asked her to prorogue Parliament, which he believed he was entitled to do for reasons he declined to state to the Supreme Court but which were clearly political. But then proroguing Parliament is political, so what other reasons would there be? The Queen had no choice but to comply, unless she wanted to re-open matters settled with the Civil War. Johnson was not required to explain his advice to the Queen, so he didn't lie. Did he make it look as if she had done something improper? No, of course not. I'm sure she was more embarrassed by blabbermouth Cameron's book.

And, while Johnson's actions were clearly questionable, plenty of commentators and legal professionals thought he would get away with it. I assumed that he would, though I changed my mind when I heard one of the arguments coming from the Scottish case on the radio. This was that, if the PM could prorogue Parliament whenever and for whatever period he wanted, what would stop an incoming PM after a general election proroguing Parliament for 5 years? Clearly that would be unreasonable. So Johnson had stretched the period one might consider reasonable and it was tested in the courts. I still thought he might get away with it but, with hindsight, it's not a shock that the Supreme Court ruled as it did. If they'd said it was ok, a future PM might have stretched it a bit more. The law still isn't specific but future PMs would be advised to assume that anything materially longer than recent precedent might be retrospectively ruled illegal.

The Court made clear that the case wasn't about Brexit (er, even though it had originally listed it as a Brexit related case!) But, of course, it was all about Brexit. Johnson wanted to get breathing space for his negotiations and the people bringing the case all wanted to deny him that. There wasn't a single party to the case saying "I think we should leave the EU but proroguing in this way sets a dangerous precedent". While it's Gina Miller who causes the highest levels of blood pressure amongst Brexiteers in the general public, John Major's participation in the case was the most risible. Here was a man who prorogued Parliament to avoid debate and scrutiny on the cash for questions scandal arguing that Johnson shouldn't be able to do the same over Brexit. You really couldn't make it up. I'm left wondering whether Major's prorogation was also unlawful. In that case, as the Supreme Court ruled Johnson's prorogation was null, void and never happened, then presumably the 1997 Parliament is still sitting and the last five Parliaments never actually happened. Fancy rubbing out Blair, Brown and Cameron from history! Actually, I shouldn't joke about this in case Gina or her ilk take the case and make not only the Article 50 legislation but also the referendum legislation lapse...... a bit like having a time machine!

Before the ruling I felt that the Supreme Court hearing was almost irrelevant; merely a bit of constitutional clarification that wouldn't have much impact. After all, the case that Parliament couldn't do its job was weak - it had passed the no-deal "surrender bill" in record time, so clearly there would be time for Parliament to scrutinise any deal that Johnson brings back from the October EU summit and to pass further laws if they wished. But it's much more basic than that. Johnson's political opponents have united behind "say no to no-deal" but the thing that really terrifies most of them is that he will get a deal as then we could be out of the EU very quickly. Of course the remainers don't want to risk that and would prefer everlasting limbo as an alternative.

Johnson is only likely to achieve his 31 October exit deadline if he convinces both the EU and Parliament that an immediate no deal exit is the alternative to a deal. Even then he might not get enough movement on the Irish border question but, if the EU would commit to jointly working up a solution on the lines of their own vision for future border controls (essentially the smart border 2.0 concept advocated by Lars Karlsson, a former director of Swedish customs*) then most of the means to avoid a hard border would surely become possible.

By dragging Johnson back to Parliament the Remainers who took the cases have ensured that they can snipe at him on an almost daily basis, knowing that the Speaker will connive with them to make it almost impossible for Johnson to make any actual progress with the EU by forcing him to report on "progress" and ensuring that any such progress is undermined. Although I don't doubt it was not their intent, the court's decision has materially reduced the chance of Johnson getting movement from the EU, if only because they will judge the chance of him forcing through no deal has reduced significantly.

The court has taken an entirely justifiable and responsible decision, which strengthens the constitutional position of Parliament. But it has still been used as a patsy.


* Smart border 2.0: solving Brexit's Irish border challenge, https://www.governmenteuropa.eu/smart-border-2-0-solving-border/91512/


2 comments:

  1. I know you voted Remain Phil but if I had not known this I would have concluded, not unreasonably I think, that you had voted Leave from this posting.

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    1. And here was me thinking this was a non-partisan commentary on the events and my view of how they have affected whether we exit the EU any time soon or not....
      Nevertheless maybe we can agree that the legal issue was secondary to good, old, dirty politics

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