Friday 27 September 2019

The Supreme Court judgment and its aftermath

In my previous post I wrote of the political thunder and lightning that we were about to experience, and this week we have had the beginnings of that storm. There is much more to come.

The Supreme Court judgment

The Supreme Court ruling was a moment of huge significance not least for the calm, rational and – naturally – judicious manner in which it was delivered. That was a symbolic reminder that for all the rhetoric, high emotions, lies, insults and threats we see there is still what could perhaps be called a backstop to protect civilised and ordered society. It was a rare but comforting, and important, moment.

That tone was in keeping with the content of the ruling. For all the furore it has provoked, it was at heart, in one sense, unremarkable. I am not a lawyer of any kind, but it would seem self-evident that if a government is able to suspend parliament whenever it wants and for whatever reason, or for no good reason, then parliamentary democracy would be meaningless.

What we saw, as many have remarked, was the British constitution working as it should do, with the judiciary playing its role in maintaining the separation of powers that underpins democracy. It is a matter of historic importance that the Court should have decided so, historic shame to the government that it should have been necessary to ask the Court, and historic credit to those who brought that case that they had the determination and courage to do so.

The implications go far beyond Brexit and, whatever happens with Brexit, Gina Miller, in particular, should be long-remembered for her heroic actions defence of parliamentary democracy in the face of the most vile intimidation.

If the judgment was ‘unremarkable’ in confirming the basic principles of parliamentary democracy, what was truly remarkable was the forensic dismissal of each and every part of the government’s case, with the unanimous agreement of all the judges. It was a damning and unequivocal demolition of what the government had done, to the extent of confirming that, in fact, it had done nothing – that is, prorogation had not as a matter of legal fact occurred.

Johnson’s reaction

This made the reaction of Johnson all the more ludicrous, but also all the more depressing. Like an insolent, smirking schoolboy, his mealy-mouthed ‘acceptance’ of the judgment – as if, somehow, he was making a concession or could pick and choose – was always immediately followed by the claim that the judges had got it wrong. On what grounds? Simply the repetition of argument totally discredited by the judgement, namely that this had just been a normal prorogation for a Queen’s Speech.

But then the additional line. The inevitable, dangerous line. That this judgment was all about blocking Brexit, inviting others to fill in the unspoken inference of judicial anti-Brexit bias. It, too, is ludicrous. The whole basis of the argument that it was just a prorogation for the Queen’s Speech is that it was not to do with preventing parliament from intervening in Brexit. That has been the line over and over again from Johnson and the Brexiters. Yet, now, with prorogation ruled unlawful he and they claim that this would derail Brexit. So the very critique of the judgement of his case was based on acknowledgement that his case was a lie.

If the calm rationality of the courtroom set out in excoriating detail the utter contempt for democratic principle with which Johnson and his government have acted, his performance in the resumed House of Commons showed the total intellectual and moral bankruptcy of his character, conduct and policy.

As has been widely remarked upon it was a truly disgusting display. Not only did it fail to show any understanding, or genuine acceptance, of the judgment but it also ramped up all the foul and divisive rhetoric that Brexiters have inflicted upon us in recent years. For despite the current outrage, the toxic language of betrayal has long been entrenched.

In terms of substance, he had literally nothing to offer. Nothing. Just endless jibes about the ‘Surrender Act’, sneering dismissals of complaints about his use of this term, airy-fairy talk of imaginary negotiating progress, and the usual meaningless, dishonest ‘will of the people’ calumny. There’s no longer even the pretence of claiming any rationale for doing Brexit other than that it must be done, still less any rationale for the doing it by any particular date.

But, of course, he had a purpose and he fulfilled it. In any normal circumstances, the humiliating judgement of the Supreme Court would have dominated the news, and brought intense pressure for the Prime Minister to resign. Instead, he successfully switched most of the focus of attention on to his language and behaviour. And – crucial to remember for those outside it - that is doing him nothing but good with his base support, who repeat and amplify it.

The bigger distraction

Such distraction techniques are his political stock in trade (the “dead cat strategy”), but there is a bigger and far more important distraction in play here. Tempting as it is to focus on Johnson’s depraved character, what is really on display now is the total void that lies at the heart of Brexit itself.  I’ve commented before on how, ever since the Referendum, it’s been clear that the Ultra Brexiters would have been far happier had they lost. They want something to object to, rather than an alternative. They want to campaign against, rather than create. To complain, rather than to take responsibility.

For they could have had their Brexit by now had they really wanted it. Instead, step by step, lie by lie, they have torched soft Brexit, torched hard Brexit, and indeed rejected any concrete form of Brexit as a betrayal of some imagined ‘true’ Brexit. Hence gradually the onion skins have been peeled away until the fetid heart of it is exposed: not a policy but an undeliverable fantasy composed of lies and articulated in the language of spite, contempt and hate. That was once the preserve of a few fanatics. Their terrible achievement has been to spread the fantasy and the language to a much larger number, though still a minority, of the population.

Their desire, shown in their constant lie to that effect, is to claim it as the view of every single one of the 17.4 million people, most of whom had no such intention, and none of whom were told that it meant smashing the economy and every institution of democratic society, the possible dissolution of the United Kingdom, and the instigation of a permanent culture war.

Their final mendacity is to insist that this is not just the choice of that narrow majority of those who voted, but the settled will of ‘the people’ in their entirety and opposed only by some shadowy elite or establishment. Thus they position most of their fellow-citizens as traitors to whom any insult and punishment may be meted out.

Ideally, they would like to push through to no-deal Brexit on this wholly dishonest basis. With parliament preventing that, they are forced to confront the dishonesty which is why they prefer an election to another referendum. If they truly believed they spoke for ‘the people’ they would happily embrace a referendum as the last, shattering hammer-blow in their quest. For, be sure, that would mark the death knell for remain and much else besides. But they do not truly believe that, and hope instead that an election, in which they might form a government with perhaps a third of the vote, will do the job instead.

A neat irony

But, here, a neat irony intrudes. For whilst it is parliament which hems them in on one side, the longstanding schism amongst Brexiters, in the form of Farage and the Brexit Party, hems them in on the other. In a re-run of the cleavages of the Referendum campaign itself, Johnson and Cummings are again at vicious odds with Farage and Banks. In the absence of an electoral pact, each will be competing for that third or so of the electorate that might be willing to endorse their rancid politics.

Hence Johnson ramps up the rhetoric – but who wants Pepsi when you can have the real thing? Many will stick with Farage. At the same time, the traditional backbone of Tory support – which, even if now a minority of that support, is still a substantial number of voters – the kind of people represented by the likes of Heseltine, Clarke and the twenty-one expelled rebels, will be repelled.

From this point of view, Corbyn’s refusal to allow an immediate election is both right and crucial. It helps to blocks some possible forms of chicanery whereby no deal happens through a back-door avoidance of the ‘Benn Act’. It’s also good tactics to leave Johnson twisting impotently in the wind, for the longer he is left there the more the possibilities of him disgracing himself in some way, the longer the possibility of some new scandal emerging, and the longer he is kept from his preferred, campaigning, mode. The charge of the opposition being “scared” of an election will be forgotten the moment the campaign starts.

Why the failure to prorogue matters for Brexit

From this point of view, too, the failure of prorogation matters. There is a view around that it hasn’t really changed anything. In one way, this is true: it seems likely that the main reason for prorogation was to prevent something like the Benn Act passing. If so, it was a botched job, as it came just too late to do so. Indeed, it very likely is what provoked the Tory rebels to support the Act. It’s increasingly clear that Cummings’ much vaunted Machiavellian skills are much over-stated.

Nevertheless, parliament sitting again gives further opportunities to prevent any device to circumvent the Act. That is important, given Johnson’s constant implication that he will not comply with it, if its terms (i.e. no deal having been reached by 19 October) are triggered. Parliament sitting further squeezes Johnson’s room for manoeuvre.

Beyond that, the way in which Johnson has behaved since parliament resumed has, in itself, made it even less likely that he might garner Labour rebel votes for any deal he might strike with the EU. It is still possible that such a deal is what he is aiming for, though it seems a remote prospect. Since it is all but certain that such a deal would be opposed by at least some of the Ultras in his own party – not least because of the extravagant promises he has made them - it would only get through with such Labour rebel support. Fewer, after Wednesday’s revolting spectacle, are likely to give it. That, in turn, makes it even less likely he will do a deal with the EU anyway, as they will know that it is unlikely to get approved and are now even more alarmed by Johnson’s populism and lack of trustworthiness.

Why the reaction to the failure to prorogue matters

Although the Supreme Court judgment is a cause for optimism about the robustness of the legal and constitutional order, it is clear from the reaction of Johnson and the Brexiters that it will see an intensification rather than a modification – still less an abandonment – of their populist tactics.

This can already be seen in attacks on the judgment and on the judges, and in the fact that it has in no way diminished the desire to circumvent the Benn Act. It is already being mooted that the government might try to use an ‘Order of Council’ to suspend the Act until after 31 October in order to force no-deal Brexit through. If so, that would be likely to be subjected to fresh legal challenge, but who can say that would be successful?

Meanwhile, Dominic Cummings has all but condoned abuse and threats against MPs by saying they are “not surprising” and result from the failure to “respect the result” of the Referendum and from MPs being disconnected from real people outside London. This of course is nonsense at every level given the ambiguity of what respecting the result means (largely due to Cummings’ own tactics in the referendum campaign) and the fact that Brexiter MPs featured prominently in preventing May’s deal going through. It is also as absurd to depict the 8 million who live in London as ‘unreal’ as it is to portray the rest of England, still less the UK, as a seething mass of hard core Brexiters. It is another classic populist tactic. But, much more important than any of this, it gives tacit licence to intimidation.

Similarly, a heroically anonymous Cabinet Minister warns of riots if another referendum were to occur. By failing to make the obvious point that such riots would be totally unjustified, such comments are less speculation about, than implicit threat of, violence. Such statements are revealing of the final, deepest, and most dangerous core of populism. Cummings, like Johnson and others are always very careful to avoid explicitly endorsing threats and violence but, rather like Kwasi Kwarteng’s recent remarks about how “many people” (though not, heaven forbid, he) believe judges are biased against Brexit, the dog whistles are loud enough for the deafest mutt to hear.

The stakes are very high

The stakes are now very high indeed. This week’s events have shown that beyond all doubt. They have also shown what many of us always knew: that this is about Brexit but about much else besides. It is about the rule of law, about civility in political discourse, rationality in decision making and parliamentary democracy itself. It is only in passing about Johnson – as the clapping, gurning MPs behind him on Wednesday night, the screaming headlines in the papers, the vile stuff on social media, and all the rest of the poison show.

It is now clear, as I argued two years ago, that what is underway is a battle for Britain’s political soul. Judges can do so much, campaigners like Gina Miller can do so much, MPs can do so much. But, in the end, the only way of beginning to defuse what we now see being done in the name of the ‘will of the people’ is for the people themselves to show that they will something else - if indeed they do.

But we are still not even at the point of an election. There is still much more drama to come. And then an election campaign that is going to be truly horrible, with Johnson’s current rhetoric just a foretaste of that which he and others will use. And then, perhaps, a referendum campaign which if it comes will be more horrible still, worse than anything we have ever seen in this country in modern times. And even then, whatever the outcome of all that, it won’t be an end to the conflict. It will, at very best, be the beginning of the end.