This is a car crash, not a bump

Britain's Prime Minister Boris Johnson departs from Hudson Yards, in New York. Picture: AP

The government has made a grave error. For a Conservative government to find its actions revoked and reversed by the highest court, for it to have to be reminded forcefully of its constitutional and political duty by judges, and for it to have given advice to the Queen which has been found unlawful is a calamity.

And a calamity it has brought on itself. And all for what?

It has combined constitutional sharp practice (or unconstitutional sharp practice, as the court has now concluded) with an unforced political error. This error had a kick — it united the government’s opponents swiftly behind legislation on extending Article 50 — with a chaser of this public humiliation.

Two ideas have led to this mistake and the team at No 10 now need to reflect on both.

The first is that delivering the referendum result justifies almost any sort of rough move, however questionable. The second is the idea that their own cunning and gamesmanship is of a higher order than anyone else’s and means that they can act with appropriate ruthlessness. A ruthlessness that eluded, say, Theresa May or others for whose intelligence or ability they have little regard.

The Supreme Court ruling shows how unwise both these notions are. The referendum result is electoral advice of great weight and importance. It is, in my view, parliament’s duty to respect the result of a vote it called. We must leave the European Union, as voters determined that we should.

However, we live in a parliamentary democracy governed by laws set by parliament. Or at least we should do. The referendum did not determine the date of leaving, nor did it determine the method of doing so. That is for MPs to decide. It is quite wrong to feel that the referendum mandate allows the government to ride over the wishes of parliament on these matters just because it disagrees strongly with the parliamentary majority.

It is also wrong to feel that the executive either should or will be able to outrun the law. The executive must obey the law and it will have to. The government is not cleverer than the rest of us, and it will not prove more ruthless than its opponents. It is dangerous and foolish for it to think that it is.

The government may be tempted to see this judgment as a bump in the road, just a minor skirmish in a bigger battle. It should resist this temptation. This is a car crash not a bump, a rout not a skirmish.

The government will have to accept the disciplines — the law and the parliamentary majority — that this case imposes on it. It will have to reconsider its plans on an extension and on leaving with no deal as a result.

It may, of course, legally be able to prorogue again but it will no longer be able insouciantly to say that the law doesn’t matter because there are always loopholes. And this — far more than anything parliament might do if it meets — will have its impact on the Brexit outcome.

Finally, a word on the powers of the Supreme Court. This will prove a landmark in its history and a major constitutional moment. To see this as merely legally unremarkable is naive.

But if the government, or anyone else, is tempted to suggest that the judgment reflects bias over Brexit it should be reminded that the executive’s entire case rested on the idea that the prorogation had nothing to do with Brexit. It’s a line that would undermine the entire case the government put.

The Times