But will he prorogue again?
The ruling from the Supreme Court today that the government acted unlawfully in proroguing parliament for as long as it did, when it did, is nothing but a devastating defeat for a government which has no majority, no great mandate and no obviously workable plan.
In summary, the Supreme Court ruled that advice to prorogue was unlawful because it prevented parliament from performing its constitutional role and that though prorogation is clearly a lawful power, the way in which it had been exercised in this case was not. In particular, the effect of a prorogation of this length at such a critical political time could not be justified.
It is a crushing ruling that not only blows Johnson’s political tactics out of the water but also implicitly labels the PM, at best, disingenuous and partial.
We should note that the Court did not rule that Johnson lied to the Queen, nor did it explicitly attribute an alternative reason for the government proroguing as it did. These are but small comforts for Johnson in the circumstances.
The practical effects will be that parliament will resume sitting as soon as possible, presumably later this week – albeit that no business motion has been laid or approved. This alone will prove troublesome for the PM, given the Tory conference next week.
What will parliament do with its time? Here, the focus moves to Jeremy Corbyn. For the PM to suffer such a blow usually demands either he resign or face a Vote of No Confidence. Having shied away from that option in the short session earlier this month, the pressure must surely be on Corbyn to lay one now.
In truth Corbyn cannot lose a Confidence vote: one of three things must happen, all of which are to his advantage. Either Johnson jumps before he is pushed, or he loses the Confidence vote, or Corbyn forces political opponents to back a now deeply-discredited administration.
But that may not be all. Given their refusal to comply with parliament’s earlier demands regarding communications on the prorogation, any sensible Opposition would table Contempt of Parliament motions against named ministers and advisors if they persist in their refusal to co-operate. These motions, if carried, can carry serious sanction – although the power to use them has lain in abeyance for many years – but they including expulsion from the House for MPs and imprisonment for others.
Assuming the government doesn’t fall in the next few days, it does have one other card it can play: to prorogue again. This would of course be immensely controversial but the Supreme Court was clear that to do so for a short period, to prepare for a Queen’s Speech, was legitimate – and of course the quashing of the earlier Order means that this record Session now continues for even longer. I wouldn’t rule out Johnson trying it.
The consequences however run even deeper. The defeat of Johnson’s tactics also destroys his strategy, which had already been seriously undermined by the Act passed earlier in the month requiring him (or whoever might be PM at the time) to request an A50 extension if no agreement had been reached and approved by 19 Oct. As there’s practically no chance of such an agreement, and given the scale of the crisis in this government and the absence of any viable alternative, it’s now surely highly likely that we will have another general election before the A50 period expires – and that throws the entire future of whether Brexit will even happen into doubt.
p.s. I should note in passing that as well as being a ruling of immense constitutional importance, the judgement was superbly written: accessible, logical and – as these things go – concise. It might be a small detail in the scheme of things but it’s a welcome one all the same.