Iain Macwhirter: A bloody nose, but Johnson will carry on acting disgracefully

Many people were left wondering yesterday why the discredited superhero was not being ordered to the cells since he had “broken the law”. The judges had him bang to rights. Seeing a handcuffed Boris PM do the perp walk from his plane to a Black Maria would have been a wonderful spectacle, but that’s not how this law works. It’s constitutional, not criminal.

Lady Hale said the court hadn’t actually speculated on the “motives” for the prorogation and just said it was “unlawful, void and [had]no effect”. Presumably, the court was trying to avoid accusing the PM directly of lying in his advice to the Queen (and by extension that Her Majesty was party to unconstitutional behaviour). But any sensible reading of the judgement would conclude that he did just that.

READ MORE: Historic court defeat for Boris Johnson 

The court said that his actions had the effect of “frustrating or preventing the ability of Parliament to carry out its constitutional function”. Lots of legal eagles on Twitter insisted that this doesn’t mean we now have a full-blooded constitutional court, like the Supreme Court in the United States, which will start second-guessing every action of future governments.

We are unlikely to have one, it’s said, because Britain has no constitution, in codified form, which could be adjudicated upon. But this lack of a constitution doesn’t seem to be an issue any more. The Supreme Court just said the Government had not given a “reasonable justification” for the suspension.

Yet we’ve been here before. In 1948 the Labour PM Clement Atlee prorogued Parliament twice in quick succession to force through a nationalisation bill against opposition from the Lords. The Tory Prime Minister, John Major, prorogued Parliament three months early on March 21, 1997, supposedly to avoid debate on the cash-for-questions scandal. There weren’t any “reasonable justifications” then – apart from the government getting its way.

It seems self-evident that the courts are now more closely involved in holding the government to account. There will surely be more court actions in future when people think the government has “frustrated” the will of Parliament – something which can be done in any number of ways. Who decides what is a “reasonable justification”?

But of course, no one really cares about all that. This is all about Brexit. The culture war was in full swing yesterday with Leave spreading allegations on social media that the judges were all closet Remainers, political appointees, members of the elite. Enemies of the People.

Mr Johnson echoed this in his reaction to the ruling, saying that there were “many people who just want to frustrate Brexit”. He says it is still “the law” that Britain leaves on October 31. That’s one law, it seems, that he will observe the letter of, if Parliament doesn’t back his Brexit deal (assuming he has one).

So what happens now? Well, Parliament resumes today and continues with normal business. The Speaker says that ministers will be expected to answer questions, and there will be statements and emergency debates. Carte blanche, therefore, to haul cabinet ministers, and the Prime Minister, back from the Conservative Party Conference which starts in Manchester in a few days time.

READ MORE: Queen ‘should resign’ for her part in prorogation, says MSP 

Will the infamous adviser, Dominic Cummings, thought to be the architect of the prorogation strategy, be sacked? Again, you’d think that would be inevitable. He is the story, after all. But he’ll probably just say that he planned this all along.

MPs will come back today and start, well, what exactly? The Benn Act, forcing Mr Johnson to ask for an extension of Article 50 is already on the books. By rights, there should be an immediate vote of no confidence in the PM tabled by Jeremy Corbyn. That is the only way to get a Prime Minister to resign when he says he will not.

But Labour has avoided such a vote because it fears it would not get a majority in the Commons for Mr Corbyn to be acting Prime Minister. Many Tory Remainers, and Jo Swinson’s Liberal Democrats have said that they would not support such a move.

Mr Johnson can’t call a General Election off his own bat, thanks to the Fixed Term Parliament Act, so prepare for yet more acrimonious deadlock as MPs try to get the PM to keep Britain in the EU, and he tries to take it out. There’s not a lot more that Parliament can do.

However, Mr Johnson has one further move. The Supreme Court didn’t deny that the PM has the right to prorogue Parliament for a Queen’s Speech. It is scheduled for October 14, so he could suspend parliament on October 3, just after his Tory Conference speech in Manchester, and the Supreme Court could do nothing about it.

The basic problem is that Parliament, whose sovereignty was reaffirmed by the Supreme Court, has no idea what it wants, except to avoid no deal. It has rejected all the alternatives: a repeat referendum, Theresa May’s Withdrawal Deal (three times), a Norway compromise, Customs Union, revoking Article 50. These were all voted down in the “meaningful votes” in March.

The only solution is a change of government, but Parliament doesn’t want an election either. So Mr Johnson will carry on carrying on disgracefully. On October 19, he will probably bring back Theresa May’s Withdrawal Deal, essentially unchanged, but with amendments to the Irish Backstop. If MPs reject it yet again, he’ll accuse Parliament of forcing us into a No Deal Brexit.

Perhaps he will be taken to court again by Gina Miller and friends. Perhaps we’ll see Lady Hale saying again that the PM has “frustrated the will of Parliament” by refusing to ask Brussels for a third extension. That’s as long as the European Union hasn’t already pulled the plug in disgust and sent the UK on its way.