Hemmed in by an opposition-inspired law forbidding departure from the European Union (EU) without an agreement, a devastating Supreme Court judgment and insinuation of a sex scandal, there has rarely if ever been a more battered British Prime Minister than Boris Johnson. Yet, he’s prepared to brazen it out; and could even be salvaged by an 11th-hour stitch up with the EU.
On Tuesday, an 11-member bench (constituted only once before in the United Kingdom’s history) headed by the president of its Supreme Court, Lady Brenda Hale, issued its finding on whether the advice given by Johnson to Queen Elizabeth II, Britain’s monarch and head of state, that Parliament should be prorogued for five weeks was lawful and the legal consequences, if it was not. It was as Hale put it a “one-off” or “circumstances which have never arisen before and are unlikely to arise again”.
Firstly, the court held the lawfulness of Johnson’s advice to Elizabeth was “justiciable”. It underlined British “courts have exercised a supervisory jurisdiction over the lawfulness of acts of governments for centuries”. It cited that as far back as 1611, a court had decreed “the king (who was then the government) hath no prerogative but that which the law of the land allows him”. It concluded there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power. Regarding the limits of that power, the court highlighted a fundamental principle laid down by an eminent judge, the late Lord Bingham, when he ruled, “the conduct of government by a Prime Minister and cabinet collectively responsible and accountable to parliament lies at the heart of Westminster democracy”. In short, the power to prorogue is limited by the constitutional principles with which it would otherwise conflict.
More specifically the judges said prorogation would be unlawful if it has “the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. And then the knockout punch: “The Court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.” It further adjudged: “The prorogation was also void and of no effect.”
The decisiveness, firmness, unambiguity and unanimity of the judgment took almost everyone by surprise. It unequivocally transmitted that rogue behaviour in public life in a country which has set standards for the rest of the world will be dealt with a heavy hand.
For Johnson, the decision was a rude shock at 5.30 in the morning, ensconced as he was in New York to attend the annual United Nations General Assembly. Yet, far from being chastened, he was defiant. “I have the highest respect, of course, for the judiciary and the independence of our courts. But I must say I strongly disagree with the judgment.”
But Parliament, which was to reassemble on 14 October, was back in session on Wednesday, with Johnson rushing back on an overnight flight to be present. For a significant section of his Conservative party who are sceptical about him, a worst case scenario had surfaced. Even for his staunchest supporters the setback was not easy to shake off. He, however, refused to heed calls from opposition parties to resign. He will persevere in showcasing his fight as one on behalf of the people versus the establishment.
Demands for his ouster, though, could intensify if the innuendo in a Sunday Times story of a sex-for-sponsorship relationship between Johnson and a Californian model-turned-entrepreneur Jennifer Arcuri acquires substance. The latter allegedly received tens of thousands of pounds indirectly from the Greater London Authority when Johnson was the city’s mayor. She was also included in three trade delegations led by him to Tel Aviv, Malaysia and Singapore. An investigation into the matter is, in fact, asking Johnson to explain his visits to Arcuri’s London flat “during gaps in his mayoral diary”.
Clearly, Johnson’s survival, more importantly sustenance of his authority, will depend on the reception extended to him at next week’s annual Conservative party conference. The reaction of the rank and file, a majority of whom backed him in his leadership bid, will in other words be crucial.
Meanwhile, away from the headlines there is progress in negotiations between Johnson and the European Union to formulate a face-saving, practical, workable and mutually acceptable deal. The Conservatives’ parliamentary allies, the Northern Irish Democratic Unionist Party, who were a stumbling block for Johnson’s predecessor Theresa May, sound co-operative. The otherwise cautious president of the European Commission, Jean-Claude Juncker, signalled: “We can have a deal.”
Pressure from businesses has forced the DUP to realise that a no-deal Brexit, loss of the EU single market could result in major unemployment. The police in Northern Ireland have warned a return to a hard border between the British region and the Republic of Ireland would trigger a return of terrorism. Besides, opinion polls in Northern Ireland indicate a majority are in favour of remain and that there's a slender tilt in the direction of an Irish reunion. A reality check for DUP, which represents the Protestant majority in Northern Ireland and has historically been hostile towards the Catholic-dominated Republic. Thus an embrace of an Irish Economic Zone which dispenses with the word “backstop” could be in the offing.
The mood is such, Britons at large might accept anything as long as the uncertainty is concluded. But the question still is, will the opposition Labour party, the Scottish National Party, Liberal Democrats and the Conservative rebels endorse the deal? Labour’s dogmatic left-wing leader Jeremy Corbyn, much against the sentiment in his fold, is non-committal. The Lib Dems are resolved to remain. The SNP, buoyed by Scots overwhelmingly wanting to stay in the EU, will be inclined likewise. Rejection of a reasonable deal, though, could, notwithstanding his recklessness, swing the electorate in Johnson's favour.