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Tuesday 24 September 2019

Constitutional Crisis

The software of a decent society

The Supreme Court’s powerful language captured the essence of British democracy – but words alone won’t save us

By Matthew d’Ancona

“We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that.”

Those five, admirably clear sentences are the beating heart of the Supreme Court’s ruling that Boris Johnson’s prorogation of Parliament was “unlawful, void and of no effect”, as Baroness Hale, the court’s president, declared on Tuesday.

These sentences also comprise the essence of the British democratic system – the common ground of our politics, liberty and law; and, frankly, it is a serious relief to see these principles stated once more, without qualification, and by the highest court of appeal in the land.

Before you change the channel: this is about you. This is not abstract jurisprudence, or a parlour game of interest only to those who follow Westminster’s daily twists and turns. This is the basis upon which all of us live, day to day, as citizens in a liberal democracy. These five sentences are the software that runs the machine of a decent society.

It is excellent, too, that Lady Hale and her 10 fellow justices were so unimpressed by the Government’s claim that the suspension of Parliament was none of their business. Yes, the decision to prorogue Parliament is a prerogative matter – that is, a power technically exercised by the Government on behalf of the Queen (who, in practice, must follow the advice of the Prime Minister).

But as the court said, citing a precedent of 1611, the monarch “hath no prerogative, but that which the law of the land allows [her].” In other words, pull the other one, Boris: we judges can rule on your tricksy use of Crown powers, in the same way as we rule on anything else.

What is astonishing – and depressing – is that the court had to spell this out at all. But it most certainly did. For three years, a populist cloud has loomed over British politics, governance and diplomacy; and, since Johnson became PM in July, it has darkened and expanded at an alarming rate.

The decline in standards we once took for granted has been both steep and alarming. In November 2016, it still seemed shocking that the Daily Mail should condemn the High Court judges who had ruled that Article 50 could not be triggered without parliamentary consent as ‘ENEMIES OF THE PEOPLE’.

Since then, and especially in the past two months, it has become commonplace for Cabinet ministers to frame the Brexit saga – and political debate as a whole – as a contest between Parliament and ‘the People’.

This, as the Supreme Court has ruled, is a populist fantasy. But it has proved resonant, and perhaps to many who wonder why they are still waiting for Brexit, dangerously persuasive. In their attacks on elites, contempt for convention, and disregard for the law, the most senior members of this Government have behaved like authoritarian schoolboys.

It is no longer surprising to hear senior ministers announce that they will wait and see what legislation says before deciding how to respond to it – in effect, reserving the right to disregard the law.

Earlier this month, Dominic Raab, the Foreign Secretary, told Sky News presenter Sophy Ridge that the Government would “test to the limit’’ the new law preventing a No Deal exit from the European Union on October 31.

Two weeks ago, Kwasi Kwarteng, the business minister, declared himself personally supportive of the Scottish court that had, in an earlier ruling, declared the prorogation unlawful – but added, in a trope routinely deployed by Donald Trump, that “many people are saying – I’m not saying this – but, many people … are saying that the judges are biased. The judges are getting involved in politics”.

This is what the Johnson regime clearly regards as the acceptable practice of having your constitutional cake and eating it. In advance of the Supreme Court’s decision, the PM even refused to rule out having a second go at prorogation. What has been extraordinary is the shamelessness with which he and his colleagues have said such things or briefed them. With breathtaking arrogance, they have taken the rule of law and made it just one option among many available to them.

At the root of this has been the fetishisation of the 2016 referendum: its elevation from a single, grandiose opinion poll – won only narrowly – to an entire basis for government and, ludicrously, a mandate for ministers to do pretty much as they pleased. Whatever happens now, the Supreme Court has called a halt to this alarming collective delusion at the pinnacle of government.

In Charles Ferguson’s epic new documentary on the Watergate scandal, Carl Bernstein describes the awe that he and Bob Woodward – his fellow investigative reporter at the Washington Post – felt when President Nixon finally resigned in August, 1974. In spite of everything, the system had worked.

It might be tempting to draw the same conclusion now. Our own evolutionary, uncodified constitution – which spawned the Supreme Court only ten years ago – has done its work again. Job done. Back to business, everyone.

But this would be fabulously complacent. As Sir John Major said in response to Tuesday’s decision: “No prime minister must ever treat the monarch or Parliament in this way again.” Absolutely right: the truth, however, is that the nation got lucky on this occasion, well-served by a single, admirably lucid ruling by 11 resolute individuals, clearly indignant at the antics of this rogue government.

It would be stretching the evidence disastrously to argue that this proves our structures are fit for purpose. On the contrary: the fact that this ruling was necessary at all shows how battered the system is, and how far we have sunk.

The scene in the Commons as Parliament was suspended

This is why Tortoise decided in May to back a codified constitution. We recognise that, in the age of instant gratification and digital impatience, representative democracy is a hard sell compared to the shiny lies of populism. All the more reason, then, to refresh, renew and codify our system from first principles. In this case, and much against the British constitutional tradition, safety may lie in radicalism.

We salute undertakings such as the Citizens’ Convention on UK Democracy, spearheaded by Graham Allen, which aims to use state-of-the-art technology to probe the so-called ‘democratic deficit’, the reasons for popular alienation from traditional institutions and the nature of change that is needed. We want to hear from other groups and our members, in ThinkIns and elsewhere.

There is a time for cool heads and a time for urgency: this is a time for both. The court’s ruling was a lucky escape, not the end of a great constitutional battle. At best, it was the end of the beginning.

After the Supreme Court – next steps to a written constitution come to our ThinkIn on Tuesday 1 October.