By Sean Gabb (Published in The Commentator on the 24th September 2019)
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.
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 terrible 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.