I drafted this post a week or so before today’s Supreme Court judgment, which makes the scenario I envisage even more likely to occur.
It is foreseeable that Boris Johnson will resign as Prime Minister (but not as Tory leader) in a few weeks time, rather than send that letter. If so, who will succeed him as PM? The present Leader of the Opposition, of course.
Boris would thus break the record for the shortest term in office of any British Prime Minister, though I doubt we’d have seen the last of him even then. It is likely that Jeremy Corbyn would go on to break the same record as Boris had first broken, by managing to remain PM for even fewer days than Boris had lasted.
We can predict that the first action of Jeremy Corbyn in nominal “power” would be to send to the EU the dreaded, grovelling, statutory letter, pleading for a further “extension”. A letter that Boris has promised not to send, preferring instead to resign as PM (or, as he puts it, to be “dead in a ditch”), rather than to be caught wearing the PM’s “hat” so-to-speak when the statutory duty to grovel imposed upon whoever was PM that day fell upon the incumbent like the Sword of Damacles.
If the Council granted the requested Article 50 extension, when caretaker PM Corbyn did the necessary statutory grovelling he’d hoped to make Boris do in person, all well and good. It isn’t particularly exciting to speculate what will happen next in that case. But (to get to my point) if the Council said “no”, then we would have a far more interesting situation on our national hands. The conventional wisdom is that Mr Corbyn would have to revoke Article 50, if he wanteed to prevent the no-deal Brexit he seems to dread from happening automatically on 31st October. But could he revoke? Hence my still unanswered question posed to a recalcitrant Administrative Court almost three months ago, a question that first occurred to me when the previous PM, Theresa May, made her u-turn, almost half a year ago, admitting that, as far as she was concerned, Brexit “may never happen”.
With no majority, Mr Corbyn would be unlikely to get a Bill through both Houses of Parliament giving him a gold-standard, statutory power to revoke Article 50. So he would be tempted instead to purport to revoke Article 50 in purported exercise of the Royal Prerogative. If that happens – and it’s not beyond the bounds of possibility – some might think it a pity that the Administrative Court wouldn’t let me make an application for a declaration that the Royal Prerogative doesn’t give a Prime Minister the power to revoke Article 50, because (I pleaded) only an Act of Parliament could accomplish that.
Thinking back to when I issued my now-failed claim asking the court please to clarify whether a PM could do what I suspect that Mr Corbyn may well soon consider himself “forced” to try to do, Theresa May was still Prime Minister in those days. I made that application, when May was PM, because I foresaw (inter alia) that somebody other than Boris Johnson might well become PM after Boris, but before the next election, who might want to revoke Article 50 in order to stop a no-deal Brexit, but not have enough support in the Commons to enact himself a statutory power to revoke Article 50 legally. Out of patriotism, I thought this had best not remain a bridge we’d cross only when we came to it, which is, unfortunately for me, the somewhat pedantic, unimaginative and boringly conservative judicial opinion with which Mr Justice Freedman has walloped me, costs and all.
What I’d like somebody cleverer than me please to explain to me, is why on earth didn’t Mr Boris Johnson welcome my attempt to clarify the law? Why did he want to resist my application, even asking for costs (which Freedman J cruelly awarded to him)? Assuming, that is, Boris really is in favour of Brexit on 31st October, deal or no deal, as he says? Why wasn’t Boris grateful to me, for starting (when track-record Brexit traitor Mrs May was still PM, mark you) a legal action against “the Prime Minister” in the abstract – meaning any Tom, Dick or Harry who remained moved into number 10 after Theresa, as well as Theresa herself, including (it later turned out) Boris? A lawsuit, that is, which would take “off the table” revocation of Article 50 without statutory authority. This is a manoeuvre which Boris seemingly doesn’t intend himself, according to all his public mumblings. But nor did Boris want John Allman (.UK) to become able (sensibly) to block that manoeuvre for any present or future PM, lest A.N.Other e.g. Jeremy Corbyn became PM after May and Boris but before Brexit.
Why the heck did Boris want to leave “on the table” that mischievous option, which his lordship Freedman points out that Boris himself didn’t intend to exercise? (We may find out later whether that’s true.) Why did Boris (and his lordship Freedman J for that matter, who went along with Boris’s plan) want so badly for me to fail in my attempt to take off the table Article 50 revocation without statutory authority? So badly that he instructed his legal team to set out to punish a guy on benefits with an adverse, unaffordable costs order?
Mr Johnson’s logical choice would surely have been to have acquiesced in my fortuitous application to the court, rather than resisting it, allowing the court to rule on the jolly serious question of law that divides learned opinion, and which won’t now be settled by the time Mr. Corbyn gets into the driving seat, if that is what happens in a month or so. If Boris had meant what he has repeatedly been saying, why didn’t he positively rejoice in my court application? It had the potential to Corbyn-proof Brexit! Even if Boris lost his majority, as he now has! Why resist that, and set out to fine the pleb who dared to ask the relevant question?
Costs aside, it’s no skin off my nose that I’ve been snubbed when I was only trying to help. To help my country, that is. A barrister friend’s take on the snub was that I was trying to test a point of law that may easily become of historic importance in the coming weeks, but that I made my application too early. Yet ever since Brexit didn’t happen on 29th March, night after night, on the BBC and elsewhere, the alleged “option” of eventually “revoking Article 50” has been mooted, with simply zero analysis of what the legal requirements would be for such purported revocation to be lawful. This has been a torment. If the law says, as Freedman J implies it says, that we have to wait for a future Prime Minister to try to cancel Brexit without statutory authority before a court can clarify whether a Prime Minister is allowed to do that, then I say the law is (to quote Dickens) “a ass – a idiot”.
Thank God that He knows what He is doing with this country’s politics, even if precious few of else us understands what the dickens His holy plan is. Let us pray that His plan is merciful. There was once a time (relevant to Brexit) when I thought I had been allowed a glimpse of a small fragment of that divine plan, enough to pray an unusual weather prayer that was spectacularly answered.