Boris Johnson is beyond UK supreme court embarrassment

This week’s ruling from the UK supreme court is undoubtedly historic but its practical impact may be close to zero.

Prime minister Boris Johnson prorogued parliament to leave a credible threat of no deal hanging over his Brexit negotiations, or to make a no-deal outcome inevitable while negotiating in bad faith – the supreme court did not examine his sincerity on this point.

Either way, parliament made the tactic redundant by outlawing no deal before prorogation. Now MPs are back 2½ weeks earlier than planned, but otherwise nothing has changed. Johnson still needs a deal before October 31st, or an immediate election, or enough progress towards a deal to request a Brexit extension and still wriggle out of his promise to resign if the UK has not left the European Union on schedule.

His first order of business will be proroguing again, lawfully this time, meaning a four- to six-day break before a Queen’s speech setting out a new programme for government.

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Without a Commons majority Johnson is likely to lose the Queen’s speech debate, traditionally seen as a vote of no confidence requiring an election.

Fixed term

However, the 2011 Fixed Term Parliaments Act – fast becoming the definitive law of unintended consequences – means Johnson's government cannot collapse without Labour co-operation. Labour will not permit an election to be called before October 31st to prevent no deal happening automatically mid-campaign. Parliament might permit Johnson's government to collapse but only to install a caretaker prime minister via another quirk of the Fixed Term Parliaments Act, to secure an extension and a deal.

This option is still blocked by Labour leader Jeremy Corbyn’s insistence on being appointed caretaker, which the Commons will not support.

So all the supreme court has done is given MPs an extra week to scrutinise the Brexit negotiations, or lack thereof, during which Johnson would normally face only a weekly half hour of prime minister’s questions.

Extraordinary times might compel him to show up more often, but extraordinary tactics could as easily see him not show up at all.

Much has been said about the supreme court leaving Johnson a diminished figure. This assumes the ruling has embarrassed a man who has shown himself to be beyond embarrassment. Johnson will be leading a zombie government, trapped in office but not in power, but that was the case before prorogation. How much more undead can a zombie be?

Parliament cannot use its extra week to enforce a new Brexit approach as it still has no majority for any outcome other than avoiding no deal.

A minor sign of shifting balance in negotiations is fresh panic from the DUP, with deputy leader Nigel Dodds conceding Brexit may not happen on October 31st.

The unionist party recognises that without an extension there is no time to negotiate any deal more complicated than the original withdrawal agreement with a Northern Ireland-only backstop. The DUP also recognises that giving MPs an extra week to think about this ahead of an October 31st deadline can only build an urgent majority for it.

Of course, this was also the case before the supreme court ruling. But now there is no unionist pretence to the contrary.

‘Remain establishment’

Fears have been voiced that Johnson will campaign on a populist platform pitting his government against a ‘remain establishment’ that includes judges as well as parliament. The supreme court may enter the frame again before the end of October if it is called upon to uphold the no-deal law, as it has signalled it will do.

Labour would then permit an election, which Johnson is projected to win, giving him a majority to threaten no deal again.

How much damage this does to British politics depends largely on the response of the public.

A poll by ComRes on the day of the supreme court ruling found 50 per cent of people agreed with the judges and only 29 per cent disagreed. In the same poll, 60 per cent said parliament has had enough time for debate, 61 per cent said the EU referendum should be respected and 49 per cent said they no longer care how Brexit happens as long as the UK gets on with it.

Taken together these figures mean Johnson can be confident of re-election, even on a hardline Brexit platform, but voters – including many Leave supporters – are still far more likely to blame politicians than judges for problems and delays.

Johnson might hope to distinguish between executive politicians and obstructive legislators but this is an alien concept to the British constitution and electorate.

The ComRes poll pointed to one profound potential impact of the prorogation row, with 51 per cent of respondents saying Brexit shows the UK needs a written constitution.

Supreme court rulings on the Belfast Agreement, described in case law as the constitution of Northern Ireland, have not stopped legal disputes and Brexit confusion.

But that is a point to make in the years rather than the months ahead.