The Supreme Court hearing on whether Boris Johnson acted lawfully in suspending Parliament for 5 weeks has attracted much media attention. But if the 11 judges rule against him, what are the political implications?
First published in September 2019.
It would be another embarrassing setback for the Prime Minister, who would have been deemed to misled the Queen. Boris Johnson might feel compelled to recall MPs. Most significantly, it would close off the option the Government was contemplating of suspending Parliament again in the run-up to 31 October to prevent it from blocking a no-deal exit.
A negative ruling might also have some upside for Boris Johnson. He could expand his “Parliament vs the people” pitch at the General Election to “Establishment vs the people”, embracing the judiciary as well. Labour sources are privately worried about the appeal of such a Tory campaign.
But the Supreme Court decision is not seen by UK or EU officials as the most important event for the Brexit process and outcomes. Far more significant is can Boris Johnson secure a deal to replace the Irish backstop by the October Council? If he fails, will he obey the law and request an extension of Article 50?
We remain sceptical on a deal for the reasons I have discussed previously — including yesterday. But Government insiders believe “the stars can still align” pointing to the talks with Angela Merkel, Emmanuel Macron, Leo Varadkar and Donald Tusk at the UN General Assembly in New York, on Monday and Tuesday.
If a deal isn’t reached, what happens then? Experts believe the “Benn law” is legally watertight. Ministers admit privately that they and their officials are poring over it with a microscope in the hope of finding a loophole.
We think Boris Johnson has 4 options:
Scenario 1. Boris Johnson defies the law, in the knowledge this would provoke another – more significant – legal battle. This is what ministers expect. The odds for a Vote of No-Confidence by opposition goes up. Some MPs might also try to revoke Article 50.
Scenario 2. Boris Johnson allows someone else to request an extension of Article 50 on the Government’s behalf – another Cabinet minister; for example, Cabinet Secretary and Head of the Civil Service Mark Sedwill.
Scenario 3. Boris Johnson resigns in expectation that the Queen would ask Jeremy Corbyn to form a Government.
Scenario 4. Boris Johnson engineers a Vote of No-Confidence in his own Government.
Boris Johnson’s hope would be that Jeremy Corbyn would soon be ousted by a Vote of No-Confidence, and would be punished for having extended Article 50 by Leave voters at the ensuing General Election. BUT options 3 and 4 are very risky for Johnson.
If Corbyn became Prime Minister, even on a temporary basis, he might become less keen on an early election. He might even push through a referendum with the support of the SNP. If he acted responsibly while PM, Tory attacks on Corbyn as a Marxist bogeyman at the future election are also more likely to fall flat.
For these reasons, we believe the most likely outcome is that Boris Johnson will delay seeking an extension of Article 50 and become embroiled in another legal battle – i.e. scenario 1, with all unpredictable political consequences that follow.🔷
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