© UK Supreme Court.

We are tilting from one crisis to another. Boris Johnson has been wounded by the decision of the Supreme Court to a greater degree than might have been expected. For him it must be something of a relief to be in the United States and away from the center of the storm swirling around Westminster. By tomorrow he will have to face the barrage that awaits him. Whatever happens to this Prime Minister, it still will not provide a solution to the current crisis and there is a danger that Brexit will continue to rampage through Britain’s political institutions like a wrecking ball.

The root of this problem lies in Parliament where there seems to be little appetite to give ground on any side. Theresa May tried hardest to find a consensual approach through the minefield of competing interests but was in the end eviscerated for all her troubles. It is important to understand that Boris Johnson came to power precisely because of the defeat that Theresa May suffered. The lesson learned from that first attempt at getting Britain out of the EU was that playing nicely and looking for consensus didn’t work.

So started the new approach. Instead of looking to accommodate a wide range of views on Brexit, the new government sought to build a coalition around the country that could win them an election. The core of that coalition would be those who had voted leave. Boris Johnson was clear when he campaigned for the leadership that if he won it meant leaving with or without a deal on the 31st of October. Those who disagreed with him in parliament seemed to do so quietly and allowed him to go into the summer recess without facing a vote of no-confidence. The only trouble was that though these people thought Boris Johnson should continue to be Prime Minister, they also wanted him to abandon his primary policy, namely to leave the EU no matter what on the 31st of October. Fortunately they had a cooperative Speaker who had already once granted them the exact weapon with which to force the Prime Minister to seek an extension to Article 50.

Suffice to say this particular weapon, namely the use of Standing Order 24 to pass legislation, is novel and what is more it runs counter to the spirit of the British political system. One of the primary aims of that sysetem is the production of governments that can carry through a program of legislation. Naturally a government might not be able to navigate the entirety of it’s legislative program onto the statute book but it must be able to carry through its key aims. If it cannot then it is expected that the government would collapse with either elections being called or someone else being asked to form a government.

Due to the fixed term parliament act, the Prime Minister is unable to call an election. The opposition will not allow one until Boris Johnson politically castrates himself by abiding the law and asking for an extension to article 50. Parliament has no desire to govern and yet wishes to direct the government on its primary area of policy. Given the bind the government found itself in, it is difficult to see how prorogation helped. The legislation binding the government’s hand was passed and the ruling that prorogation was illegal has damaged the authority of the Prime Minister. Nevertheless it is important to see the prorogation in the context of the highly unusual set of circumstances that had come in to being.

Whatever its legal merits, the Supreme Court’s decision will not release us from this crisis but will plunge us ever further into turmoil. It will poison the atmosphere in casting the Prime Minister as a criminal and it will sow dissent in some quarters towards the judiciary. It was a political failure to find a solution to the Brexit problem that has brought us here and there are no judicial answers that will save us from these difficulties.

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