If Boris Johnson cannot strike a deal with the EU, he will have two options: quit as Prime Minister and fight the inevitable general election or finish the Tories by breaking his pledge not to delay Brexit, writes John McLellan
How we enjoyed the hubris of Jeffrey Archer, Tommy Sheridan, Jonathan Aitken, and Chris Huhne, their self-certainty ripped from them like Captain Dreyfus’ sleeves as they went to prison for undermining the legal framework designed to uphold the decisions they had been elected to make.
Be it contempt, perjury or subverting the course of justice, when those connected to the governance of the nation are found to have lied to beat the system, they can expect the book to hit them harder than thieves or violent criminals.
Archer went down for four years, Sheridan for three, Aitken for 18 months and Huhne (with ex-wife Vicky Pryce) eight months, all for breaking clearly laid out rules underpinned by oaths taken in court.
For all its imperfections, respect for the rule of law is the foundation for Britain’s continued role as a major international business market place largely because it is a place where disputes are seen to be fairly tested and settled, so for governments to distort or abuse the court system runs not just grave political risks but is bad for UK business.
But that is not to say administrations cannot test and stretch their understanding of the law when deemed necessary, and with the Government hemmed in on all sides – a paralysed minority which can’t win votes and can’t call an election to break the deadlock – it will use every possible means to get its way, just as opponents facilitated by Commons Speaker John Bercow have concocted their own procedural barriers.
Sitting in the Inner House of the Court of Session this week, Lords Carloway, Brodie and Drummond-Young ruled Prime Minster Boris Johnson had not just tested and stretched the law to prorogue Parliament but his “clandestine manner” had broken it.
It was, according to Lord Brodie, “a clear failure to comply with generally accepted standards of behaviour of public authorities” with the stinging allegation that “the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account”. They went further, unhelpfully suggesting Mr Johnson had duped the Queen into giving the five-week suspension the necessary Royal sign-off, as if she had any kind of free will and would have acted differently had she known his real intentions.
Had the three Privy Councillors who met her in Balmoral to make the request simply said “Your Majesty, Boris has come up with a wizard wheeze to stiff the Remoaners. Just sign here, ma’am”, she would have had no option but to comply.
Hard though it might be to imagine, the constitutional crisis resulting from a Royal refusal would make the current impasse look like a community council spat over a planning application.
Prorogation has happened before and while his decision may be against the spirit of Parliamentary accountability, Mr Johnson does not appear to have broken any law because there is no law to break.
Even ample evidence of his intentions does not make it a court matter, as Lord Doherty found in his earlier, now overturned, decision, along with three judges in the London High Court.
Number 10 sources were quick to accuse their Lordships of political bias, and without specific statutes laying out a procedure for prorogation, such an intervention was always likely to be seen by Brexiteers as political and the angry reaction predictable.
But the political effects of the Inner House ruling is not in itself evidence of political bias; there is a subtle difference between a decision which is political and judges setting out to act in a pre-determined political manner. Although the effect of the Inner House ruling is to stymie the Prime Minister, just as they accused him of trying to stymie Parliament, that is not definitive proof of intent.
The deliberate political act was by the politicians who brought the cases, especially those with a legal background like Edinburgh South-West’s SNP MP Joanna Cherry, but that’s what politicians do.
The Supreme Court will have the final say in a three-day hearing starting on Tuesday and there is a risk of a deeper wedge not only between the Scottish and UK governments but between the Scots and English legal systems and it will be a real test for its two Scottish judges, deputy president Lord Reed and Lord Hodge.
Supporting the Government position will be interpreted as a snub for the Court of Session, which is just the way of appeals. But what if the Scots lords back their Inner Court colleagues but are outvoted by the judges from the other two UK jurisdictions?
It will inevitably be interpreted as an assault on the independence of the Scottish system and used as further evidence against the Union in a second independence referendum.
The Supreme Court judges will emphasise that their decisions were arrived at independent of politics, but it will not stop the politicisation of the result, especially if the Inner House ruling is supported and the Government is forced to recall Parliament.
The combination of an extreme political crisis and a minority government unable to call an election has exposed a gap in the law which will surely be filled if ever there is a Government with enough loyal MPs to actually pass legislation.
In the meantime, the haggling and badgering with Europe and Ireland goes on through the chief negotiator and former Scotch Whisky Association boss David Frost, and maybe a deal very similar to Theresa May’s agreement can be struck and voted through in the next month. Who knows?
But everything points to Mr Johnson returning from the EU summit on October 17 empty-handed, after which he can bend and twist the law but ultimately he must obey it.
If there is no Brexit deal by October 19, the legal obligation to ask for an extension to Article 50 beyond October 31 leaves him only two options, the first being to seek the extension he swore he would not do, which would finish him and the Conservative Party.
The second is to resign and wait for the inevitable General Election in which he would be fighting a useless Labour Party and in the Lib Dems and Brexit effectively two opposing single-issue pressure groups and with anyone voting Brexit helping to deliver the opposite, he might just pull it off.
Here, the polls point to a strong SNP vote and a second independence referendum may well be next year’s battle.
But there will be no misleading the Queen when Mr Johnson is finally forced to tell her the game is up, but unlike the Ashes the series is still live.