Dragan Plavšić assesses the wider political significance of the Supreme Court’s decision against Boris Johnson
When the Supreme Court declared Boris Johnson’s decision to suspend or ‘prorogue’ Parliament unlawful, it dealt his government a serious blow. The judgment was damning. All eleven judges said they could not find ‘any reason - let alone a good reason’ for his decision.
The Tory Party is now in an unprecedented situation. The party of the establishment, the party of Parliament, the party of law and order, now stands condemned by the judicial arm of the establishment for breaking the law when it suspended its legislative arm, the ‘mother of Parliaments’. It’s as if the Tory Party has gone ‘off the rails’.
What all this reflects is that the ruling class in its great majority never supported Brexit. A minority always did and they have captured control of the Tory Party and with it the executive arm of the establishment, the government itself. But they have the judiciary and the legislature ranged against them. Despite its claim to be neutral on Brexit-Remain, the Supreme Court effectively backed the Remainers demanding the return of a Remain legislature against a Brexit executive.
This is a ruling class at war with itself, and what the Supreme Court has tried to do is press the ‘reset button’ on its own ruling class and its traditional representative in politics, the Tory Party. It has tried to get ahold of a crisis spiralling out of control, to get back to ‘things as usual’, to send a message to the Tory Party to get ‘back on the rails’. Even the fact that the Supreme Court’s judgment was jointly written by Lady Hale, the English head of the Court, and Lord Reed, who is Scottish and soon to succeed her, was designed to send a message about the need to defend the Union.
This is why in a speech yesterday the former Tory Prime Minister, John Major, attacked Johnson for being ‘profoundly un-Conservative’, saying the Tories had become a ‘Brexit Party tribute band’ and hoping that, with the support of middle-of-the-Road Tories, ‘the Conservative Parliamentary Party will regain its sense of balance, and rein in the faction of a faction that now prevails in cabinet.’
At the same time, the Tory peer and Times columnist, Lord Finkelstein, found himself wondering ‘what is the point of Conservatives and what is the value of Conservatism’ if the party broke the law, adding, ‘what will Conservatives say when resisting the challenge of socialists and extra-parliamentary protesters?’
Finkelstein went on to warn Tories against overreacting to the expanding political role of the judiciary. ’One of the precedents cited yesterday,’ he noted, ‘was a 1965 ruling that the executive can’t exercise such power in order to deprive people of their property without compensation. It doesn’t require much imagination to think of circumstances where that sort of ruling might come in handy.’
The importance of the judiciary to the ruling class could scarcely be clearer. It is a key component part of the defence of the right of property. Not for nothing did the socialist legal scholar, J.A.G. Griffith, warn in a famous lecture forty years ago that ‘The Rule of Law is an invaluable concept for those who wish not to change the present set-up.’
The Supreme Court decision must therefore be seen for what it is, a political decision that seeks to put the ruling class back into sync with itself. In order to do so, however, the judiciary has had to make an unprecedented intervention into politics and against politicians.
As welcome as the immediate political consequences of the Supreme Court’s decision are - dealing a blow to Johnson and the return of Parliament - the left must not lose sight of the dangerous precedent also being set here. A Supreme Court which has been emboldened by so direct a political intervention, one legitimised by the shower of praise it has received especially from liberal commentators, will be sure to flex its muscles at the invitation of the wealthy and powerful aggrieved by a future Corbyn government. Finkelstein was quite right, judges’ rulings might well ‘come in handy’.
There are some on the left, however, who acclaim the Supreme Court decision without a thought for its negative consequences. For years now, they have been singing the praises of an unelected judiciary as their check of choice on the decisions of elected politicians. When democracy fails, their instinct is to issue writs. This isn’t a healthy instinct.
JAG Griffith spent a lifetime warning against trusting the judiciary. He wrote a classic book The Politics of the Judiciary exposing their ruling class bias. In his lecture of forty years ago, he advised against passing ‘political decisions out of the hands politicians and into the hands of judges’ because unlike judges, politicians are ‘people who are removable.’ Crucially, he went on, ‘It is an obvious corollary of this that the responsibility and accountability of our rulers should be real and not fictitious.’ Griffith was here pointing out a very different task for the left to issuing writs - the political one of making responsibility and accountability ‘real’. He would have endorsed this simple proposition, that the answer to the glaring inadequacies of elected politicians is more democracy, not less. Indeed, this is why the first political step we now need to take is a general election.
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).