IT COULD NOT BE WORSE for the Government. The Supreme Court has decided unanimously that Johnson’s prorogation was unlawful and is of no effect; and it has accepted the most extreme remedy. It has resolved to take agency in the matter away from the Prime Minister and place full discretion with the speakers of the two Houses. We may rely on Bercow to take full advantage of the powers which the Court has placed in his hands.
We will aim off the longer-term implications: no doubt we will muddle along under the new dispensation. Let us instead focus narrowly on the immediate implications. Johnson’s position is acutely problematic. It will be difficult to find any legal figment for defiance in the face of the Court’s unanimous decision. Although Johnson’s commitment to leave the EU by 31 October is not quite in tatters, it is hard to see how he can maintain any kind of negotiating position in the face of the Benn Act, against which this morning’s judgement may be taken to remove any basis for legal challenge. Nor is he able to go to the country, with Parliament twice refusing to let him do so before the (now quashed) prorogation. Presumably he could resign – and perhaps he will have to rush back from New York to do so – but the condition of the Labour Party as shown in Brighton over the last few days makes it hard to see how an alternative government could be formed. (And by the way, what now happens to the Tory Conference?)
It is a daunting event that a Court judgement should so comprehensively cloud a clear view of an orderly way forward. I cannot say what cunning wheezes Cummings may have up his sleeve; if Johnson tries to hang on he is as likely to ask his consigliere to fall on his sword as to double down. Nor can I say how the public may respond, but it is likely that Parliament versus the people plays differently in the face of a unanimous judgement for Parliament. Net, net, and regardless of the Court’s objectives, the effect of its judgement may well be that the Brexit project is being tested to destruction.