Regular contributor Sean Walsh, provides us with an interesting analysis of yesterdays proceedings.
Even though my driving instructor was female I did in the end pass my test. Second time. The first time I failed, because the examiner spotted my nervousness and drew conclusions about my mental state that were not entirely fair. The second time, I passed because she had given me a list of things to improve on. Driving being one of them. I took the advice, reapplied for the test, and got it right next time around.
Boris Johnson should take heart from yesterday’s notification of failure. He has not been told that it is outside his gift to prorogue Parliament; merely that he didn’t quite get it right this time. My advice to him would be to get behind the wheel as soon as possible and give it another go. Now that he knows where he went wrong the first time, he’s less likely to stuff it up again.
In the sense of political survival, the 11 judges, who all seem to think the same -always disturbing and in any context- have done him a favour. Their decision is unprecedented and is therefore a dissolution of precedent. Normally it would be unthinkable for a PM not to resign in situations like this but normally there is a normal. Precedent is so last week.
Politically, there is no reason why Johnson should not choose to sit this out and ask of the likes of Dominic Grieve: now that you have ripped up the rule book there are no rules in this situation, on what basis can you require that I resign?
What the “Supreme Court” did yesterday inverted the normal legal principle of mens rea. Rather than acknowledge that a crime has been committed and assess the mental state of the accused, Lady Hale has attempted to conjure a crime by climbing into the mind of a legitimately serving Prime Minister. The judges were upholding the decision of a lower court-in Scotland- which had based its constitutionally recondite decision about the legality of the prorogation on an inference about the intentions of Johnson when he followed a precedent (remember that?) which has been in place for several centuries.
This is not legal process. This is Minority Report.
Be aware: if judges are allowed to do this to a Prime Minister then they are free to do it to the rest of us. The judicial branch has decided that it can reinvent what is lawful on the basis of assumptions it has no business making.
The judges have intruded on the political discussion. We can’t blame them for that in a way. The well-heeled have invited them to arrogate to themselves more power. These people tend to be at the end of their career, and enjoy talking to each other, and such an invitation is difficult to resist. So let’s keep sight of the human element. But it’s astonishing that they made the egregiously irresponsible error that their judgment discloses. Which is this: they have decided that Johnson’s decision to prorogue Parliament is an offence against Parliament because it prevents Parliament from doing its job. But part of the job of Parliament is to prorogue itself.
This judicial assumption makes sense only if “Parliament” is the same thing as the House of Commons. Which it isn’t. Prorogation is one element in the appropriate rhythm of Parliament which, ultimately, is the constitutional context in which the Queen’s business takes place. And one part of that business is regular prorogation: the essential emetic when the Commons becomes choleric.
Or…whisper it softly…a general election, which Mr Corbyn is eager to have to the extent that he will vote, in consistent fashion, against it happening.
The judiciary has confirmed that the Remain coup is being actualised at the highest levels of the Establishment. But we knew this already. We are now in a situation in which it is becoming tiresome and boring to say that there is a coup going on: such is the effectiveness of the coup.
I hope that Mr Johnson gets back in the car and prorogues again, firmly planted in hand a list of what he did wrong the first time. And maybe sets the Satnav in the direction of General Election once he has navigated the one-way system he is now confronted by.
Predictions? I think Doris Day had it right.
Let’s just learn to accept it.