As the Supreme Court’s unanimous judgement against prime minister Boris Johnson was read out, there was a sharp intake of breath in the court as it was held that “the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect and should be quashed”.

After the Supreme Court judgement

All were keenly aware that this was an unprecedented moment in modern history. The UK’s highest court had ruled that Parliament had never actually been suspended in the first place and that it was up to the Speaker of the House of Commons to call MPs back to Westminster.

As a result, Parliament, the government and the courts are now contesting each other’s authority in a way that testifies to a profound constitutional crisis in the sense that the old arrangements for state rule are in marked disarray.

Lady Hale, president of the Supreme Court

Ruling on behalf of the court, Lady Hale referred to two critical moments in English history, in which the arbitrary actions of a monarch had been rejected.  She said that “as long ago as 1611, the court held that “the King [James I] hath no prerogative but that which the law of the land allows him”. And as the full judgement notes: “The 17th century was a period of turmoil over the relationship between the Stuart kings and Parliament, which culminated in civil war.”

The English revolution of 1642-1651 overthrew and executed Charles I. After a brief period of restored absolute monarchy, in 1688 the English Convention Parliament, ousted James II and installed William of Orange as a constitutional monarch whose privileged or prerogative powers were to be held by his ministers. In 1701, Parliament established the independence of the judiciary.

Over 330 years later, the Supreme Court judgement is a modern effort to curb the arbitrary powers of the state in the interests of defending the rights of an elected Parliament. The judges were at pains to show that they had not exceeded their powers but were actually enforcing the rule of law.  

The brazen arrogance towards the Supreme Court’s decision of Johnson, Gove et al, backed by the pro-Tory tabloid media, shows that the decision, far from resolving the constitutional crisis, is actually deepening it.

Under “normal” circumstances, if a prime minister’s actions were declared unlawful, null and void, that leader would be obliged to resign. But Johnson and his gang have no such intention.

So, far from demonstrating the effective functioning of the UK constitution, the Supreme Court’s decision is a warning that the existing constitution actually failed to prevent autocratic action by an unelected prime minister.  

The fact that the courts had to intervene in the most dramatic fashion to allow Parliament to continue in session at all indicates that the system of representative democracy hangs by a thread.

As the judgement said: “Parliament does not in any event expect to be in permanent session. But the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model.”

[emphasis added]

The judgement could be seen to have restored the status quo but this approach to the rule of law can turn out to be a double-edged sword if, for example, a radical Labour government was challenged in court by corporations, landowners and other capitalist interests.

Brexit may be thought of as the cause of the present political and constitutional crisis but actually the 2016 referendum effectively brought matters to a head. Government had by then long been a way of enforcing a ruthless, neoliberal market economy.

One consequence was the rejection of the European Union by voters who considered they had nothing to lose and felt unrepresented by the major parties. Since then, all the major parties – who campaigned for remain – have struggled to come to terms with the surprise result.

MPs have failed to implement the referendum which, however you voted, is hardly a great example of democracy in action. Johnson’s clique have taken advantage of the turmoil to hijack the referendum result with a view to embarking on some wild, neoliberal experiment using the UK’s population as guinea pigs.

Yet the Tories are deeply divided and have lost their majority in Parliament. Labour is struggling to come up with a meaningful Brexit policy. An impending general election looks unlikely to produce a majority government as a way forward.

Johnson is likely to cast it as a reactionary “People versus Parliament” election, the logic of which is outright authoritarian rule. Labour cannot oppose this simply by siding with a Parliament that lacks popular support without a plan to deepen democracy in a serious way.

In the wake of the judgement against Johnson, Jeremy Corbyn’s rousing speech to Labour’s conference said: “The tide is turning. The years of retreat and defeat are coming to an end. Together, we’ll take on the privileged, and put the people in power.”

However, the present constitution does not have this proviso. And the Supreme Court will, in other circumstances, side with the status quo. The present constitution is the form of state rule that is centred on capitalist ownership and control while denying the people any real decision-making powers over their workplaces and communities,

So putting the people into power will require the development of a democratic revolution not just a series of radical economic policies if Corbyn’s noble ambition is to have real substance. Labour will need to go into a general election with this perspective if it is to defeat Johnson.

A good first step to counter Johnson’s reactionary, right-wing populism would be for Corbyn and John McDonnell to join the growing calls for a citizens-led convention to frame a new, democratic constitution. Then “people in power” would be a step nearer becoming reality.