Dragan Plavšić looks at what lies behind the arguments
It’s been top news for a couple of days, but you’d be forgiven for asking what the fuss at the Supreme Court is really all about. You’re right to ask, but it boils down to something like this.
On the one hand, various Remain supporters (the businesswoman, Gina Miller, some SNP members of the Scottish Parliament, the former Tory Prime Minister, John Major and Labour’s Shami Chakrabarti) have taken the Johnson government to court because they say its suspension of Parliament until 14 October (aka ‘prorogation’) is unlawful. They argue this has been done to curtail debate about Brexit and gain unfair political advantage. They want the Supreme Court to declare prorogation unlawful and to order the government to recall Parliament.
On the other hand, the Johnson government argues that prorogation is an exclusively political matter which should be left to politicians. This isn’t a legal matter at all and should not concern the judges who should refuse to judge it (this is what is meant by saying prorogation is ‘non-justiciable’). They argue that prorogation is standard practice, here motivated by the need to prepare a Queen’s Speech and a new legislative programme, and not about curtailing debate which can after all take place after 14 October.
The Scottish appeal court decided the case in favour of the Remainers. The English High Court decided it in favour of the Johnson government. The Supreme Court, Britain’s highest court, is hearing appeals from these two cases and will decide who’s ‘right’.
What should we make of all this?
We need to stand back a bit from these courtroom events to get some perspective on them. When we do, it’s difficult not to be struck by the suffocating ruling class character of it all.
The ruling class has in its great majority supported Remain, but a minority has supported Brexit. The minority currently has its hands on the executive branch of government (ie the Johnson government itself). But the majority currently has its hands on the legislative branch (ie Parliament). Johnson therefore decided to suspend Parliament to remove an obstacle to Brexit while he seeks a deal with Brussels; Parliament opposed prorogation so it could continue opposing Brexit.
The struggle between Brexit and Remain has thus become a struggle between the executive and the legislative branches of government. Inevitably, the judicial branch of government has been drawn into it to decide the winner.
We need to add into this mix the fact that the British constitution is unwritten, which means it is full of uncertainties. It is constitutionally uncertain whether the executive branch can prorogue the legislative one in these circumstances. But it is no less uncertain whether the judicial branch of government can review the executive’s decision to prorogue. This is because the traditional rule of the British constitution has been that the three branches of government - the executive, the legislative and the judicial - should be separate and should not interfere too much with one another in order to keep a reasonable balance between them.
The Brexit-Remain divide at this ruling class level has therefore exposed many of the latent uncertainties of the British constitution. What we are witnessing is both sides trying to exploit these uncertainties for their own political advantage, but as a result exposing them to unprecedented public view.
The important point for us is that there is a fundamental problem with the arguments of both sides. Both have an undemocratic core to them.
Johnson’s argument that prorogation is lawful is obviously undemocratic. It is extraordinary that Parliament will not sit for several weeks during the most important crisis in Britain since the Second World War.
But the argument from the Remainers would give unelected judges very considerable power to reverse decisions made by elected politicians. We can easily envisage this power being wielded against a Corbyn government.
What is going on in the Supreme Court is one wing of the ruling class controlling one branch of government fighting it out with another wing controlling another branch before a bench of ruling class adjudicators they hope will decide in their favour. This is why millions of people are wondering what on earth this has got to do with them.
None of this is democratic. No wonder talk of a general election has receded as commentators focus on the Supreme Court. The immediate way ahead cannot be left to eleven unelected judges. Instead, we should have a general election where the issue of Brexit-Remain can be put back into the decisive context of the enormous inequalities and injustices millions in Britain are suffering.
Dragan Plavšić is a member of Counterfire in London and of Marks21 in Serbia. He jointly edited The Balkan Socialist Tradition and the Balkan Federation 1871-1915 (2003).