Eurosceptic Conservatives have rallied round Boris Johnson urging him to hold his nerve and push for a general election, with little sign they blame him for the humiliating supreme court judgment that ruled his advice to the Queen was unlawful.
Anger within the party was directed more towards Geoffrey Cox, the attorney general, and Dominic Cummings, the prime minister’s senior adviser, who is the architect of his Brexit strategy.
A cabinet source said that while ministers were shellshocked by the chaos they were not in the mood to ditch Johnson on the eve of a general election when he was still leading in the polls.
The source said Cox was being blamed for advising ministers that the prorogation was completely lawful and there would be no problem with it. There was some fury too at Cummings, with one Eurosceptic former cabinet minister saying: “I thought he was fucking stupid to appoint Cummings and I told him so at the time.”
Few Tory MPs publicly criticised Johnson and cabinet ministers avoided the airwaves after No 10 ordered them not to give any media interviews or comment on the ruling via social media.
It was left to the former Tory MPs who were kicked out of the party by Johnson to criticise his strategy. Sir Nicholas Soames said the prime minister had “accepted and implemented some very very bad advice on prorogation and the wider Brexit strategy”, while former leadership contender Rory Stewart said No 10 was “panicking” and “trying to drive through a Brexit that was always impossible”.
A number of Eurosceptics ignored the directions from the Tory whips to keep quiet, breaking ranks to criticise the court judgment and rail against Labour for refusing to allow an election.
Steve Baker, the chair of the hardline European Research Group (ERG), rallied to Johnson’s defence, saying it was “not a mess of his making”.
That the court judgment was not about Brexit
“It is important, once again, to emphasise that these cases are not about when and on what terms the United Kingdom is to leave the European Union. They are only about whether the advice given by the prime minister to Her Majesty the Queen on 27 or 28 August, that parliament should be prorogued from a date between 9 and 12 September until 14 October, was lawful and the legal consequences if it was not.”
That the court had the right to act
“The first question is whether the lawfulness of the prime minister’s advice to Her Majesty is justiciable. This court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the government for centuries.“
That the prorogation was not ‘normal’
“It prevented parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31 October. Proroguing parliament is quite different from parliament going into recess. While parliament is prorogued, neither house can meet, debate or pass legislation. Neither house can debate government policy. Nor may members ask written or oral questions of ministers or meet and take evidence in committees…This prolonged suspension of parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the vonstitution of the United Kingdom on 31 October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme.”
That Boris Johnson’s advice to the Queen was unlawful
“The court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue parliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.“
That parliament has not been prorogued
“This court has already concluded that the prime minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the order in council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices.”
What happens next?
“It is for parliament, and in particular the Speaker and the Lord Speaker, to decide what to do next. Unless there is some parliamentary rule of which we are unaware, they can take immediate steps to enable each house to meet as soon as possible. It is not clear to us that any step is needed from the prime minister, but if it is, the court is pleased that his counsel have told the court that he will take all necessary steps to comply with the terms of any declaration made by this court.”
The full judgment and the summary judgment can be downloaded from the Supreme court website.
“Of course it’s a profound constitutional crisis and this definitely deepens that crisis. I would observe it’s not just me and the prime minster who disagree with the judgment. It’s also the lord chief justice, the master of the rolls and the president of the Queen’s bench, who heard the case beforehand. It’s an odd position that more senior judges ruled differently,” he said.
He attacked Labour’s plan to “hold the prime minister hostage in Downing Street” by refusing to allow an election. But even with the prime minister’s options narrowing to take the UK out of the EU by 31 October, Baker indicated he was unlikely to vote for any deal brought back from Brussels that was in any way similar to Theresa May’s version.
“I will not sacrifice the long-term future of the UK for some short-term expedient, whatever pressure we are put under,” he said. “What I will not do is make the UK a kind of prison state even less able to escape from the EU indefinitely.”
David Davis, the former Brexit secretary, blamed what he claimed was the increasing tendency of the courts to interfere in politics for Johnson’s defeat.
“All the calls for him to resign are just nonsense. The rules have changed. When the rules change, everybody gets caught by the new rules even when they are still obeying the old ones,” he said.
He predicted that Johnson could still clinch a Brexit deal in time to leave the EU on 31 October. “All of his avenues have become narrower. This will be very messy, and fudgy, but he can do it.”
Others were more critical of the supreme court judges, despite warnings from Robert Buckland, the justice secretary, that they should be respected. Nigel Evans, a Tory MP on the 1922 committee of backbenchers, tweeted that he hoped that “judges know people really angry at this and only remainers happy”, adding: “I’m sure they will live with it but we will fight on until HMG delivers the new programme which will not include closing all private schools and acquisition of their assets amongst other things.”
The leader of the House of Commons, Jacob Rees-Mogg, who traveled to Balmoral to formalise the decision to suspend parliament with the Queen, reportedly told colleagues on a cabinet conference call that the supreme court judgment was a “constitutional coup”.
David Thomas Charles Davies, another Eurosceptic, added: “I stand with prime minister Boris Johnson who is doing everything possible to deliver on the clear result of a referendum in the face of a powerful pro EU establishment. They want the PM to resign – but they don’t want an election.”
