Supreme Court has set a challenge for all who believe in the rule of law

President of the Supreme Court Brenda Hale reading the court's judgement on the legality of Boris Johnson's suspension of parliament
AFP/Getty Images
Matthew d'Ancona25 September 2019

In the general election of February 1974, Edward Heath posed the question: “Who governs Britain?” Afflicted by industrial disputes, and especially the miners’ action that led to a state of emergency, he sought affirmation from the voters. His reward was the loss of 37 seats and a hung Parliament.

Now, 45 years later, another Conservative Prime Minister is asking exactly the same thing, albeit through anonymous briefings. In the wake of yesterday’s historic Supreme Court ruling — that Boris Johnson’s prorogation of Parliament was “unlawful, void and of no effect” — a “senior ally” of the PM is reported in today’s Times to have said: “The effect of this is to pose the question, who runs the country? It will be very interesting to see what the public makes of this.”

Near identical language appears in off-the-record remarks to other newspapers, making clear how the Johnson government intends to frame its response to this judicial body blow. What is so striking is the difference between 1974 and 2019.

Heath presented himself as the opponent of the over-mighty unions, the defender of social stability, the enemy of “strife”. Johnson, in marked contrast, postures as the representative of ordinary people, impatient to have their decision on Brexit implemented at last, against the supposedly politicised judiciary — yet another devious wing of the notional Establishment that our Eton-and-Oxford educated millionaire Prime Minister claims is thwarting his mission to implement the popular will.

In 1974, the Conservatives chose as their enemies those who threatened law and order; in 2019, extraordinarily, the party under Johnson is ranged against the very judges that maintain it. It is a dangerous game indeed for any prime minister to pit himself against the highest court in the land. For a Conservative, it is a transformative and reckless strategy.

Matthew d'Ancona

Though Johnson pays surly lip service to the courts, his surrogates and Gollum-like avatars whisper to whoever will listen that this is all about the wicked liberal elite sabotaging — yet again — the will of the people.

The Supreme Court’s decision — as lucid and robust a defence of parliamentary sovereignty and the rule of law as one could hope for — interprets the world through the prism of rules. Johnson understands the world entirely in terms of power.

While he is obliged to obey the court’s instruction, he made little secret in New York yesterday of his irritation that 11 pesky jurists should be standing in the way of his march to destiny. Already we have become habituated to senior members of his Government reserving the right to disregard the law until they have seen its detail — as though following legislation or judicial decisions was merely an option, rather than one of their fundamental and defining responsibilities as ministers of the Crown.

Indeed, I was struck, as Johnson spoke breezily to reporters and later smirked at President Trump’s joke that he was facing “just another day in the office”, that no prime minister in living memory would have clung on to office in similar circumstances.

But this PM’s homage to history does not extend to the field of honour. His belief in his own exceptionalism is all-encompassing, and encouraged by the Vote Leave cronies with whom he has surrounded himself in Number 10.

Indeed, his message to the voters will be: it takes more than a bunch of stiffs in judicial robes to oust me, your devoted tribune.

"No prime minister in living memory would have clung on to office in similar circumstances"

Jacob Rees-Mogg’s claim that the ruling amounts to “a constitutional coup” is nonsense (as, by the way, was the claim by opponents of a no-deal Brexit that the prorogation was a “coup” — it is a depressing sign of the times that such language is so carelessly deployed by both sides). But what the Leader of the House said is a clear guide to the trajectory the Johnson regime will now follow.

As his parliamentary opponents seek to scrutinise the progress of planning for no-deal, armour-plate the legislative lock preventing exit without an agreement, and harry the PM on his failure to come up with a plausible alternative to the Irish border backstop, Johnson will try to goad them into forcing an election.

In this respect, he is exploiting new divisions between the Opposition parties: Jeremy Corbyn opposes the tabling of a confidence vote at this point. The SNP, in contrast, is more enthusiastic. Remember: to trigger an election under the Fixed-term Parliaments Act, Johnson only needs to engineer a defeat in a vote of no confidence by a simple majority, and then wait 14 days as his opponents fail to form an alternative government.

If all Conservative, DUP and SNP MPs vote as a bloc — a bizarre one, admittedly — Johnson gets to 323, well over the line to trigger the process that leads to an election. The question is: who tables the confidence vote?

These are the extraordinary circumstances in which we find ourselves. A Government baying to be declared unfit to rule, an official opposition denying them the opportunity. With Parliament reassembled, its detailed work of scrutiny and procedural chess will resume. But let us not lose sight of what is at stake, far beyond even Brexit.

The Supreme Court has issued a warning to us all, and a challenge. It has saved the day for those who believe in a system based on rules, and the rule of law, who would stop the populist bulldozer in its tracks. It is now for others to assume that grave and urgent responsibility.