When I first saw the news today about the Supreme Court’s judgement on the prorogation of Parliament I experienced an unfamiliar emotion when in comes to anything related to politics: happiness. As I went onto Twitter and read more – yes, from all the people I agree with – I felt a tear in my eye. Something great had happened that not so long ago no-one could have expected: the rule of law had prevailed over the executive dictatorship that Boris Johnson and his supporters had tried to impose on our politics, our country. The last three years have been so grim politically that my expectations had become very low. In recent times, almost on a daily basis, some aspect of our traditional way of doing things had been brushed aside, traduced, in the name of achieving Brexit, “do or die.” The Supreme Court judgement shows that there is some life in our way of doing things after all.
Our way of doing things. Our unwritten constitution. A constitution that is a jumble of convention, laws and precedents. A constitution that can be added to, re-worked, quietly modified and even ignored. But one that has, over the centuries, worked pretty well, and allowed the three branches of the constitution – the legislature, the executive and the judiciary – to adapt to changing times. It is deeply flawed in some areas, not least the electoral system, which was suited for a two party, capital v labour era, but which has proved wholly unsuited to reflecting popular opinion in these more complex, variegated times. Parties have achieved large majorities with way less than 50% of the vote and then gone on to change Prime Ministers through internal elections involving memberships with tiny numbers of the electorate. In the modern era, when the role of Prime Minister has taken on a presidential hue, this is absurd and dangerous, as we have seen recently. But flawed though it is, the unwritten constitution has had an ability to correct the worst anomalies, through an acceptance by the majority of those concerned that there are some fundamentals which cannot be ignored.
The most fundamental of these tenets are parliamentary sovereignty and the rule of law.
The sovereignty of parliament is lent to it by the monarch, who then, at least publicly, stays out of things. We vote for our MPs, and for better or worse they form a government, which puts laws to Parliament and runs things day-to-day. Few of us will agree with everything that a particular party sets out as its policy, but we accept that we vote for the MP closest to our own values and beliefs and they take it from there. None of us can have everything we want, so in effect we optimise. Our electoral system can exaggerate swings in public mood, but when we don’t get what we want, we grumble a bit and wait for the next election. Referendums cut right across the concept of parliamentary sovereignty, as a vote on a single subject is put directly to the voters. I used to think this was important for major constitutional matters, but Brexit has shown how dysfunctional referendums can be. There is no denying that a majority of those voting chose to leave. There is also no denying that Parliament itself passed the laws allowing the referendum and the question that went with it. But the referendum indicated nothing about how we should leave, what consequences we were prepared to accept, and so on. It allowed a small majority of those who voted to mandate a change with massive consequences for the whole population. It was the tyranny of the majority in action. And then when Parliament resumed the leading role assigned to it by the unwritten constitution, and failed to agree on what sort of Brexit should happen, there were cries of it ignoring the will of the people. Cries encouraged by an irresponsible government that was desperate to get its deal through. Never mind the fact that the will of the people is something that all the most heinous dictators through history have laid claim to.
And that brings us to the rule of law. This is so fundamental to everything that makes the UK to this day a civilised country in which people of very different backgrounds and beliefs can live alongside each other, in the knowledge that, for the most part, disputes can be resolved, crimes will be punished and politicians cannot act as if they are above the law. If they do it will catch up with them. And this was the thing that I found most disturbing about Brexit and the effect it has had on our politics. Citing the will of the people, the government, especially since Boris Johnson took control ( in that election by a tiny minority of the people) showed a flagrant disregard for not only parliamentary sovereignty, but the rule of law. It said it would disregard the act of Parliament – the law – requiring a delay to Brexit if a deal couldn’t be agreed with the EU by 19 October; it said that it might just prorogue Parliament again if the Supreme Court found against the first prorogation. Ignore the Supreme Court! Its authority is in the name. But the government still said it might ignore it. So it would disregard the orders of both the fundamental institutions of our unwritten constitution because Brexit – whatever it is, which no-one knows even now – must happen by 31 October.
Well, now we will see. The Supreme Court has thrown down the gauntlet, in a unanimous judgement, that the government has acted unlawfully. Parliament will be back tomorrow. Are Boris Johnson and his gang really willing to override Parliament and the Supreme Court, on the basis of the will of the people? A concept alien to our parliamentary democracy, but very familiar to the countries of Europe and elsewhere that suffered so horribly during the 20th century? Really? And does Johnson even have the power to do this? Will the civil service be willing to take orders from a government that has been deemed to be acting unlawfully by the Supreme Court? Will a police van turn up at 10 Downing Street to arrest the Prime Minister for being in contempt of court? We are truly in unchartered territory.
So, can there be anything like a happy ending to this Shakespearean combination of farce, horror and tragedy? Well, I’d happily see Article 50 revoked, but that is highly unlikely. I’m in two minds about another referendum, simply because of the deleterious effects the first one had, both on our unwritten constitution and the political discourse. It could be justified on the basis that the first was an in-principle vote and a second would be taking place now that we know a lot more about the likely consequences – if there is a deal agreed by Parliament on the ballot paper. It would be completing unfinished business. But I’d accept a parliamentary vote on a deal too, on the basis that that would be most in tune with our way of doing things. The way that works. It will be worse than staying in the EU, but we just have to accept that we had a referendum and the vote was to leave, under the rules of the game ( a requirement of super majority of two-thirds would have been better for such a momentous decision). I wouldn’t be that surprised if there was a deal, with a Northern Ireland-only backstop, although it would be called something else. After all the DUP don’t hold the balance of power any more in Parliament. The irony is that that was the EU offered the British government in the first place. What a shambles!
Still, we are where we are. The fun and games aren’t over yet, I’m sure. But at least today the Supreme Court gave us hope that our unwritten constitution, rickety though it is, is alive and putting up a fight. The rule of law has struck back; now over to Parliament.