Unless you have been living under a self-imposed anti-Brexit rock you will know that last week brought with it the Supreme Court ruling that Boris Johnson’s suspension of Parliament was unlawful. Much of this ruling came down to the question of ‘did the PM have any good reason he could provide why parliamentary suspension would be beneficial?’. The answer came back as a resounding no. Many of you may be asking: why has Boris not been taken away in hand-cuffs? And the simple answer to that is that the case was not a criminal law case. This case was constitutional, but was it constitutionally viable to breach Parliament’s ability to hold the government to account?
This poses a difficult idea to get your head around. The supreme court ruled that Boris’ actions were ‘unconstitutional’ yet Britain lacks a codified constitution. Before you let that idea spiral, I would hazard to point out that we still have laws and constitutional ‘expectations’, but no standalone written document that declares ‘we stand for this’. Which, until recently, was largely heralded as acceptable. The absence of a codified constitution made laws easier to change. Britain knew what it stood for. However, the Brexit conundrum has now sent us headlong into a debate: would enshrining what we believe somewhere serve us better? I just hope we don’t hold a referendum over it!
This constitutional debate was prompted in part by the Supreme Court’s place in proceedings. Lord Reed, the next president of the Supreme Court, described the Supreme Court’s functions as: ‘the final court of appeal in relation to… questions of EU law, questions of human rights and other questions of a constitutional character… this makes it effectively the constitutional court of the UK’. But it isn’t officially. Instead, it fills a space in the UK’s lack of a constitution. Writing for The Times, Lord Sumption spoke of the Supreme Court’s ‘revolutionary’ decision as ‘(making) the courts the ultimate arbiters of what political reasons are good enough’. While that may seem threatening, the Court’s judgment, he suggests, should be welcomed even by those (like himself) who do not believe the courts should be greatly involved in politics. This is because this decision protected the law and the rights of the people to expect Parliament to represent them and defend them.
While I am not of the belief that a codified constitution holds the answers, I do appreciate that it was a likely question that would come up. In an article published in The Guardian in 2016, Anthony Barnett wrote in favour of a codified constitution, explaining that ‘parliamentary sovereignty’, following the referendum, was replaced by the ‘new sovereign’: the people. What was problematic was that parliament led while the power had been irrevocably placed with the people. This debate was bound to come up and while I wish I could travel back to 2016, in truth, Parliament can only time travel back to 9th September before prorogation.
So, where does this court action leave us? The answer is: everywhere and nowhere, as usual. Boris is still PM; he still plans to order a Queen’s speech on 14th October, and Brexit is still happening. While this ruling was a landmark occasion and served to expose Boris’ ham-fisted approach to politics, no immediate change to proceedings has happened except the reinstating of parliament. While this was exciting it only keeps us in a Brexit-fuelled ‘suspended animation’ (albeit more lawfully) for a while longer. As Anthony Barnett writes, ‘historically, England-Britain, as the firstborn nation, felt it had no need of vulgar aspiration: after all, everyone else aspired to be like us’ and while I don’t believe the world would agree, I can’t say that it doesn’t ring true to how Boris’ negotiation tactics appear. Maybe it’s the perfect description for a country governed under him.