by Martin Odoni

Tuesday’s historic ruling by the Supreme Court that prorogation of Parliament was unlawful was one of the biggest moment’s in British constitutional history. That is no exaggeration. 24th September 2019 is as huge a moment as the passage of the Bill of Rights of 1689, and for reasons that go far beyond Brexit.

UK sovereignty is with Parliament

The 24th September should be commemorated annually, as it is the date British democracy was brought back from the brink.

I am quite serious when I say that even Brexiteers should be relieved that the judges on the Supreme Court did not take the easy way out and just say, “Well, this is not a matter for the courts, it’s a matter for MPs!” like the High Court had done a couple of weeks earlier.

Supreme Court ruling

The historic ruling of the Supreme Court is that Prorogation of Parliament is unlawful, and that the courts do have jurisdiction over the constitution.

Such a decision being upheld would have had terrifying implications for the future, and Brexiteers need to remove their blinkers and acknowledge that there are other matters in the world beyond their obsessive hatred of the European Union. For this was not really about Brexit as such, no matter how much Boris Johnson, the lamest of Prime Ministerial ducks, and his allies try to claim otherwise, in all their characteristic hypocrisy.

Boris_Johnson_-_prorogation_is_not_about_Brexit_and_it_is[1]

“I’m not saying it was about Brexit, but it was about Brexit.” It’s not about Brexit when it’s going his way, but it’s all about Brexit when it’s going against him.

In truth, it was the other way around. Initially, when Johnson called a prorogation, it was about Brexit. It was simply a cynical way of making sure Parliament could not stop Johnson from handling Brexit in as unilateral a manner as he wished. But the longer-term implications of such a move were not just unilateral but downright totalitarian, and had repercussions that could affect any number of issues in the future. For if Johnson were allowed to establish that he could simply suspend Parliament whenever it suited him, even at a time of severe constitutional disruption, then he could do it in any situation, and so could any subsequent Prime Minister. Prorogation would simply become the tool-of-choice for any Prime Minister who did not like the inconvenience of opposition getting a say, or was just feeling accountability-shy.  So it ceased to be about Brexit specifically, and became about matters of democratic structures, sovereignty and constitutional integrity.

Brexiteers and their tunnel vision

Most Brexiteers, sadly, do not seem to realise this, and in fact they remain unshakeably convinced that it was the opposite, and that the Supreme Court’s decision was about preventing democracy, as it made it almost impossible for Johnson to force through a No Deal Brexit. In truth, the Court’s decision did nothing to delay or advance Brexit, so that assumption is untrue, but even so, the likely third delay to leaving the EU could still be seen as anti-democratic, for the simple reason that it delays delivery of the 2016 Referendum result.

But is it that simple? Well, no.

Firstly, democracy is being interpreted in a very extreme way there. It is assuming that “If it is popular, it must be law.” But that is less ‘democracy’ and more ‘mob-rule’, and it can rapidly look a lot less appealing when applied to other scenarios. Just for instance, if there were a popular vote in favour of the extermination of everyone who voted to Leave, how in favour of ‘democracy’ would Leavers become then?

(And no, I am certainly not arguing for such a vote, I am simply pointing out that a line has to be drawn somewhere, and it is clearly somewhere a long way short of ‘vote-to-kill’.)

Referenda are not legally-binding

“All right,” answer Brexiteers, “so we shouldn’t have votes to break the law, but still, Brexit isn’t against the law!”

Well, that is questionable, given that Brexit’s contradiction of the Good Friday Agreement arguably is illegal under International Law. But equally, it has to be said that ignoring a Referendum result is also not against the law.

No, seriously. Referenda are not defined in British law, and so their results are non-binding. This was even made clear in briefing papers for the Brexit Referendum.

Brexit Briefing paper June 2015

Addressing the urban myth that the 2016 Referendum result has to be binding.

Yes, I know David Cameron claimed that the result would be respected and implemented, but hey, why should we start believing a chancer like him just on this issue? He also swore he would carry the task out personally, but instead he resigned the day after the vote. When was he ever honest about any policy? How often did he keep a promise? So why do we look to his words for the unvarnished truth now?

Now let me be clear; none of this is meant to imply that I am actually calling for Brexit to be reversed completely. It would certainly be the sanest option, given the constitutional quagmire into which it has tipped the country, but I ruefully accept the decision of the British public.

However, this is a response to those who keep claiming that the 2016 Referendum is some kind of unanswerable edict laid down by powers greater than the Gods, and that it somehow even supersedes the rule of law. It does not. There is no legal precedent for a Referendum as binding. It is certainly not as set-in-stone as the UK constitution, which, though uncodified, is not ‘unwritten’ (despite what is so often claimed of it).

Breaking the law does not help enforce it

There is an old saying that “One cannot enforce the law by breaking it, even if it helps catch a criminal.” A similar saying could be coined for democracy. “One cannot uphold democracy by destroying the structures that protect it, just to implement one democratically-reached decision.”

This means that the implementation of the 2016 Referendum result cannot be allowed to happen in any way that actually violates the law or endangers the UK Constitution. If that were allowed, democracy would be far more threatened than it could ever be by the overturning of a single Referendum. The Constitution is what gives us the power to vote, and to have representation in Government, and Parliament is where that representation sits. Sometimes one part of the state can seem to get in the way of other parts. That is just the nature of checks-and-balances though, and it will therefore often require patience on the part of the public before they will see the fruits of legislation. Impatience, such as the impatience displayed by Johnson when trying to prorogue Parliament, will have unintended side-effects. Brexiteers are often among the loudest to accuse politicians of corruption and dirty trickery, and they are seldom wrong on that score, but they need to recognise that the aforementioned checks-and-balances are there precisely to guard against such sleaze. Now they scream out against a critical check on the Prime Minister’s power? They want that check removed. They do not want the Prime Minister to be accountable to even the highest court in the land on constitutional matters. They want the High Court’s pusillanimous cop-out that this is a matter only for Parliament itself to be permanently accepted.

But how can it be, when Parliament was being prorogued without ever agreeing to it or even being consulted on it? The Prime Minister was acting unilaterally, and the High Court was saying, “Nothing to do with us. This is a matter for MPs.” But the MPs were not given any options to do anything about it one way or the other.

Government by prorogation

As mentioned above, if a Prime Minister has absolute control over prorogation, and can suspend Parliament for obviously excessive lengths of time, then he can use it simply to silence formal opposition. Opposition is an integral part of the way the British Constitution and democratic processes work. No Prime Minister can be allowed unchecked control of prorogation, when that gives him the power to limit legitimate opposition, accountability, and debate. Allowing the Prime Minister to be the safeguard of this part of the Constitution is rather like getting the metaphorical wolf to guard the henhouse; the individual with most motivation to attack it is the one expected to defend it. Abuse of such an instrument would be too easy for a psychopath like Johnson, who sees nothing as more valuable than his own narrowest interests, and the more he abuses prorogation, the more he would endanger the Constitution and its credibility.

Endanger the Constitution and you endanger democracy, you do not protect it. You should not retreat into claims of, “Oh, he was only going to do it this once.” You do not know that, and there would have been nothing to stop him doing it again in future if the Supreme Court had not reined him in. Enforcing one badly-under-cooked policy at the cost of our democratic structures is like sacrificing an army of thousands in order to free a hundred soldier-prisoners.

Try and remember in all your short-tempered self-righteousness that Brexit has not been revoked. It is taking far longer to implement than its advocates were hoping, but given the immense difficulties that the very intricate process is creating, it is hardly unreasonable that some delays prove necessary. Any delay in enforcing Brexit is neither illegal nor unconstitutional. A delay that establishes once and for all that Downing Street is not above the law and that the Constitution of the United Kingdom is protected by the Courts is something to celebrate. Had the Supreme Court chosen to say, “Nothing to do with us,” British democracy would have been mortally-wounded.

As it is, it is back from the dead.