Wednesday 25 September 2019 4:18 am

Watch out for the unintended ripples of the Supreme Court verdict

Alan Mendoza is executive director of the Henry Jackson Society.

There are times in the life of a nation when a single decision made by an authority can have ramifications well beyond the narrowness of the issue at hand. 

When the US Supreme Court decided in Roe versus Wade in 1973 that a pregnant woman should have the freedom to choose to have an abortion without excessive government restriction, it realised full well that many state and federal laws on abortion would be overturned. 

However, it could not have predicted – nor would such a prediction have fallen within its legal deliberations or framework of competency – that the decision would create a pro-life versus pro-choice divide in US politics that would help shape elections of all kinds going forwards for years to come.  

So it is likely to prove with yesterday’s seismic verdict in the UK Supreme Court, where 11 justices ruled unanimously that the government’s decision to prorogue parliament had been unlawful.

On the surface, this decision changes nothing other than the fact that MPs and peers are being called back from an extra-long holiday to resume sitting. 

And yet, despite Supreme Court president Lady Hale stating that the decision was “not about when and on what terms” the UK left the EU and was only about how the government exercised its power, it has outsized implications.

Surprisingly, the short-term path of Brexit will not be one of them. Parliament had already exerted itself prior to the false prorogation to try to derail the prospect of a no-deal Brexit, and the return of MPs is a sideshow to the negotiations towards a new deal with the EU that are creeping forwards in Brussels. 

The Prime Minister has long stated that he would much rather secure a deal than pursue a no-deal option. The Supreme Court’s verdict, by making a second tactical prorogation of parliament in October to deliver a Brexit at any cost much more difficult, will merely steel his resolve to achieve one. 

Parliament’s arithmetic and divisions have not changed either. Boris Johnson has been following a strategy of delivering Brexit by 31 October. The most hardcore among his opponents wish to stop this, and have seemingly closed off some of his options, but have thus far failed to muster a majority for any alternative. 

The Supreme Court’s ruling brings us no nearer to clarity for such an outcome.  

Nor, once the initial shock has worn off, will the verdict have any significant impact on the functioning of this government, or indeed future governments. 

There is of course tremendous excitement among the commentariat and Her Majesty’s Opposition that the Prime Minister has “misled the Queen”, and therefore ought to resign. Except that Lady Hale made it quite clear that the government’s offence was to have provided bad advice, not that it did so wilfully. 

Boris is therefore no more going to resign over this than any US President would do when – and it is a when, not an if – the federal government’s position on a subject is overturned in the US Supreme Court. 

Our own Supreme Court is still under a decade old, but if the UK is to embark on an era of judicial activism, setting judiciary against legislature and executive, it had best heed the lessons of a system where that eventuality occurs on a regular basis. 

Every US President is defeated judicially at some point in their term of office – President Obama, for example, lost over 50 per cent of cases involving his administration. With the exception of Watergate, no recent US Supreme Court decision has paved the way for a change of administration.

What might of course be seismic here would be a parliamentary urge to conclude yesterday’s ruling by mustering up the courage to call a vote of no confidence in the government. But to do so would almost certainly lead to a General Election, and parliament has already rejected such an offer from Boris twice this month. 

And this reveals what the real impact of the Supreme Court’s intervention might prove to be. 

The opposition parties previously spurned the idea of an election because they feared being held to account by the court of public opinion in a campaign dominated by an imminent Brexit deadline, in which the Prime Minister could appeal to the people over MPs’ heads to give him a proper mandate to finish the job they had asked him to start through the 2016 referendum result.

Now, Boris has an even more powerful cry to rally the masses if and when an election comes. And given the government’s lack of majority, it surely must at some point soon.

The Supreme Court may just have been performing its narrow job, but outside of the Westminster bubble, there will be plenty of ordinary citizens bemused by what looks like yet another establishment roadblock to the path of Brexit and disgusted at the never-ending mess unfolding in London.

As many American Presidents will attest, riding a public wave of anger at a judicial ruling can be a great political boon. Those celebrating yesterday’s decision may yet come to regret what it may unleash.

Main image credit: Getty

City A.M.'s opinion pages are a place for thought-provoking views and debate. These views are not necessarily shared by City A.M.

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