Brexit: Check or Checkmate?


Brexit: Check or Checkmate?
Sean Gabb
(Published in The Commentator on the 24th September 2019)

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I see no point in denouncing today’s judgment of the Supreme Court, which has ruled the prorogation of Parliament “unlawful.” Granted, this is not a court of law so much as a committee of political activists. Granted, its judgment goes against centuries of convention and judicial precedent that matters of high politics are not allowable subjects of litigation. But we are where we are. All that surprises me is that the Remainers are so committed to stopping Brexit that there is no part of the Constitution they are not prepared to feed into their political shredding machine. What I will do instead is to ask what the Government can reasonably do next.

My answer is that I am not sure. Three weeks ago, I suggested using the Civil Contingencies Act to dissolve Parliament and call a general election. After today, this is no longer an option. Three weeks ago, the dissolution would have been challenged in court. But the Remainers would have been arguing against an appeal to the people. Before any action could make its way to the Supreme Court, the campaign would already have begun. Try that now, and any court in England would apply today’s ruling in half an hour. There would be an injunction against the Government before the writs of election could be issued.

So Parliament will sit again tomorrow. The Government has no majority. It cannot call a general election. The Speaker is effectively the leader of the opposition. I suspect the Remainer strategy is now to load the Prime Minister with such humiliation that he will be seen as weak by the people, and will begin to lose his lead in the polls. An election will then be allowed when the most likely outcome is another hung Parliament – though this one might have a more useful balance of opposition parties for a Remainer Coalition to cancel Brexit outright or to run another referendum, this time with a fixed question.

The Government could respond by calling for a vote of confidence. It might lose, and the present opposition parties might not be willing to go into coalition. There would then be an election. But I doubt the opposition parties would fall for that. If I were advising them, I would tell them to abstain – making some excuse about the need to take No-Deal off the table before any election. They could then continue their campaign of harassment.

Or the Government could instruct its supporters to vote against it in a no-confidence motion. It could hope the opposition parties were unable to agree a stable coalition, and then trigger an automatic election. This, however, might push the opposition parties into cobbling together some kind of government. Losing office now, with no prospect of an election, would risk losing everything.

Or the Government could try for another prorogation, and this time try to make it proof against litigation. We have already had a fortnight of peace from John Bercow’s grinning face. Another three weeks to prepare a Queen’s Speech would be adequate relief. But the Supreme Court has shown its hand. It is committed to the Remainer side. A Conservative majority at the next election might see the Judges put in their place. They will do whatever they can to keep Parliament open.

The only strategy left is to play the underdog. It may be that every broadcast of proceedings in Parliament will raise public disgust to the point where even the less committed Remainers grow sick of it. I can think of nothing else.

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To be sure, every Remainer strategy only has the effect of cementing the Leavers into a united bloc, and making the eventual punishment of the Remainers more unpleasant. It makes our continued membership of the European Union far less likely in the long term. But that says nothing about how to get through the next month.

The lesson, I think, is that the Government has shown a sad lack of ruthlessness. Faced by a ruthless opposition from across the Establishment, it has failed to respond in kind. It should, over the past few months, have been using all its patronage to neutralise the Remainers. It should certainly have been looking to see what laws it could twist to its own advantage. Instead, at every step, it has responded to attacks from the other side.

But lessons for future reference are no particular comfort. If anyone looks to me for another clever strategy, he should look away again. I have none.

7 comments

  • There will be no Brexit, it was never on the cards.

    • Let’s hope so, but we must then hope that the British people are more radical and militant [less civilised] than they appear. If not, then we’ve lost – and we deserve to.

  • This “Supreme Court” is a creation of Tony Blair and co, and so is always going to support the Inner Party establishment. Even on the rare occasions like this, where government is actually trying to do what they are supposed to, act in the interests of the people.

    Let’s not forget that a couple of years ago, this court held a “climate change” love-fest, so we all know where they are coming from.

    The question which raised itself in my mind is, was this matter actually within the remit of this court? I’m no expert on these matters, but I thought that it is supposed to be an appeal court. In this case, its acts seem to be dangerously like a criminal prosecution. And who gave the “permission to appeal?” that, supposedly, is needed for that court to get involved in the first place?

    But Johnson is in a bind, isn’t he? There is no court to which he could possibly appeal the decision. (Of course, if the situation was the other way round, and the PM was a Remainer trying to fight off a challenge from the Brexit side, they might try to use the ECJ.)

    • But are the government trying to do what they are supposed to?

      Let us imagine a scenario in which the Conservative Rebellion has prevailed and trials are being held in the old Middlesex court building. Among the defendants are the entire former Supreme Court, many former government ministers, MPs and political activists, lawyers, senior civil servants, journalists, broadcasters, media executives, some prominent local councillors, local government officers and others.

      One of the defendants is Boris Johnson. He is charged with treason and misconduct in public office. If found guilty, he faces a firing squad. He is now being cross-examined by the Crown.

      Questions would include:

      Why did you dither over proroguing Parliament?

      Why didn’t you prorogue Parliament before the end of the recess? Why did you not prorogue Parliament until 1st. November at least?

      Also, why during the referendum campaign did you allow yourself to be photographed in front of a campaign poster that was clearly a lie? Was this just a mistake? Never mind that the Court of Appeal blocked the prosecution. The poster was plainly a lie. Was this an attempt to undermine the outcome of the referendum, if it went for Leave?

  • The Prime Minister should have prorogued Parliament during or immediately after the recess until 1st. November. He could have given his reason that Brexit would happen on 31st. October and there was little for Parliament to do in the meantime. Instead, Johnson opened up the possibility of a legal challenge to prorogation by allowing Parliament to introduce legislation.

    In my understanding, the exercising of Crown prerogatives is subject to law and governments cannot use prorogation to frustrate legislation, a principle that must extend to not using prorogation to frustrate the law. If memory serves, this goes back to at least the Civil War. Indeed, you could argue that a dispute over a wrongful prorogation was one of the causes of the English Civil War.

    Looking back to the Conservative leadership contest, the choice for Tory Party members was between Jeremy Hunt and Boris Johnson. Those were not stellar candidates. Hunt is an empty-headed Establishment drone. In the case of Johnson, I find his bumbling manner offensive and embarrassing. We need a leader, not a circus clown. I would have preferred Hunt – at least then have the collapse of the Tory Party would have been assured.

    • I should have added:

      The next step for Boris Johnson is surely a second prorogation, this time until at least 1st. November.

  • Pingback: “A Judicial Jamboree” – Boris and the Supreme Court | The Ludwig von Mises Centre

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