September 18, 2019
No doubt, this is a constitutional crisis
We have been very careful with the expression constitutional crisis in the past. We cannot recall a genuine constitutional crisis in a big western democracy, in the sense that the constitutional machinery itself was at stake. There is now more than a whiff of a constitutional crisis in the UK. The UK's unwritten constitution was clearly not designed to handle events as complex as those associated with Brexit. A written constitution may well be one of the main results of this crisis, however it ends. But, until that moment arrives, the notion of a constitutional crisis seems appropriate to us.
The immediate issue is not Brexit itself, but the prorogation of parliament. The Supreme Court yesterday held hearings on this case, the first over three days. In his written submission to the court, Boris Johnson yesterday told the justices that the matter of prorogation was none of their business - constitutionally inappropriate, as he called it. He said it was politically acceptable for governments to prorogue parliament for their own political advantage:
"The courts have no jurisdiction to enforce political conventions. Although they can recognise the operation of a political convention in deciding a legal question, such as the extent of a duty of confidentiality, they cannot give legal rulings on its operation or scope, because those matters are determined within the political world."
It is one thing to defend your position in a court, but quite another to dispute the court's right to make a decision. Johnson's lawyer at the court, Lord Keen, said the prime minister would comply with a ruling by the Supreme Court, but also made it clear that he could prorogue parliament again if it suited him.