A redeeming deal?

Looking back over a series of recent disasters for the British PM, Ashis Ray senses Boris Johnson has made progress to strike a Brexit deal in order to save his premiership

As October 31 beckons, so does judgement day for British Prime Minister Boris Johnson. In a high stakes, reckless – albeit successful – gambit for the leadership of the Conservative Party, Johnson pledged a come-what-may departure for Britain from the European Union by the end of this month: a promise that’s become a challenge to fulfil, yet a challenge he must overcome to not merely avoid a catastrophic climb-down, but to remain in office.

He has been checkmated by an opposition-led legislation debarring an exit from the EU without an agreement (which is where he appeared to be heading), a devastating Supreme Court verdict and a suggestion of a sex scandal. Rarely, if ever, has a British prime minister been so bruised.

After MPs and peers opposed to him passed a motion to rule out a no-deal Brexit, an 11-member bench headed by the president of the Supreme Court, Lady Brenda Hale, issued its finding on whether the advice given by Johnson to Queen Elizabeth II, Britain’s monarch and head of state – that parliament should be prorogued for five weeks – was lawful, and the legal consequences if it was not. It was, as Hale put it, a ‘one-off’ or ‘circumstances which have never arisen before and are unlikely to arise again’.

Firstly, the court held that the lawfulness of Johnson’s advice to the Queen was ‘justiciable’ and underlined that British ‘courts have exercised a supervisory jurisdiction over the lawfulness of acts of governments for centuries’. It cited that, as far back as 1611, a court had decreed ‘the king [who was then the government] hath no prerogative but that which the law of the land allows him’. There is no doubt, it concluded, that the courts have jurisdiction to decide upon the existence and limits of a prerogative power.

Regarding the limits of that power, the court highlighted a fundamental principle laid down by an eminent judge, the late Lord Bingham, when he ruled that ‘the conduct of government by a prime minister and cabinet collectively responsible and accountable to parliament lies at the heart of Westminster democracy’. In short, the power to prorogue is limited by the constitutional principles with which it would otherwise conflict.

More specifically, the judges said prorogation would be unlawful if it has ‘the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive’.

And then the knockout punch: ‘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.’ It further adjudged that ‘the prorogation was also void and of no effect’.

The decisiveness, unambiguity and unanimity of the judgement took even legal experts by surprise, unmistakably signalling that undemocratic behaviour in a country which has been a shining example to the planet will not be tolerated.

Johnson was in New York for the annual United Nations General Assembly when the ruling was read out. Far from being chastised, he was combative. ‘I have the highest respect, of course, for the judiciary and the independence of our courts. But I must say I strongly disagree with the judgement.’

UNDER SCRUTINY: Boris Johnson with Jennifer Arcuri in 2014
UNDER SCRUTINY: Boris Johnson with Jennifer Arcuri in 2014

But Parliament, which was to reassemble on 14 October, resumed business within a day of the decree, forcing Johnson to fly back to attend. For its prime minister to be branded as having acted illegally was the worst nightmare for his Conservative Party. Even for Johnson’s blind supporters it was a moment of reflection. But with opinion polls indicating Brexiteers were rallying behind him, he has persevered in projecting himself as standing up for the people against the establishment.

His position, though, could become untenable if the innuendo in a Sunday Times story of a sex-for-sponsorship relationship between Johnson and Californian model-turned-entrepreneur Jennifer Arcuri amplifies. The latter allegedly benefitted to the tune of tens of thousands of pounds from the Greater London Authority when Johnson was the city’s mayor. She was also a delegate in three trade missions undertaken by him to Tel Aviv, Malaysia and Singapore. An inquiry into the story is, in fact, seeking an explanation from Johnson about his visits to Arcuri’s London flat ‘during gaps in his mayoral diary’. Public reaction to this affair could determine his future.

On the plus side, there is progress in talks with the EU. The otherwise cautious president of the European Commission, Jean-Claude Juncker, signalled: ‘We can have a deal.’ The Conservatives’ parliamentary allies, the Northern Irish Democratic Unionist Party, who were a stumbling block for Johnson’s predecessor Theresa May, sound co-operative.

Pressure from businesses has forced the DUP to realise that a no-deal Brexit and loss of the EU single market could result in major unemployment, while the police in Northern Ireland have warned that a return to a hard border between the British region and the Republic of Ireland would cause a return of terrorism. Besides, surveys in Northern Ireland have unearthed that a majority are in favour of remain and that there is even a slight inclination towards an Irish reunion. A panic-stricken DUP, which in a communal divide represents the Protestant majority in Northern Ireland and has historically been inimical towards the Catholic-dominated Republic, is now veering in the direction of an Irish Economic Zone which would abandon the unsavoury term ‘backstop’ in the envisaged treaty.

The EU, though, need to be convinced the formula floated will avoid customs and VAT checks post-Brexit – one of Brussels’ red lines.

After a three-and-a-half-year impasse, Britons are at the end of their tether. They are virtually in a mood to accept any arrangement as long as the uncertainty ends. Thus, if Johnson returns from the EU Council meeting on 17 and 18 October waving a rapprochement, this could place opposition parties in a dilemma. Rejection of a reasonable deal would probably, notwithstanding his otherwise roguish record, create a groundswell of votes for Johnson.

Ashis Ray has worked for the BBC, the Ananda Bazar Group and the Times of India. He was CNN’s founding South Asia bureau chief in Delhi and is the longest serving Indian foreign correspondent

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