The political turmoil around Brexit threatened to boil over into a full-scale constitutional crisis in Britian this week after a ruling from Scotland's highest court that Boris Johnson's five-week suspension of parliament was unlawful. The Inner House of the Court of Session found that his advice to Queen Elizabeth to prorogue parliament was designed to stymie the work of MPs in scrutinising his Brexit policy and that the suspension was "null and of no effect".
The supreme court in London will consider that judgment next Tuesday, along with a conflicting ruling from the Divisional Court in England and Wales which said the prorogation was a political decision that could not be judged against legal standards. If the supreme court upholds the Scottish judgment, MPs will return to Westminster immediately and Johnson will face the scrutiny he sought to avoid. His decision to force a trial of strength between the executive and the legislature was always likely to lead to a battle in the courts. And some of his advisers will no doubt welcome the opportunity to cast the judges as part of an unaccountable elite that is seeking to overturn the result of the 2016 referendum.
Many Conservatives welcomed the energy and sense of purpose Johnson has brought to Downing Street. But after less than two months in office, he has lost his majority at Westminster with the expulsion or defection of 23 Conservative MPs, been defeated in six Commons votes and found himself cornered by opposition parties.
He is obliged by law to delay Brexit by three months if he has not agreed a withdrawal deal by October 19th and cannot hold a general election before the UK is due to leave the EU on October 31st. The prime minister has returned to the campaigning style he deployed during his first week in office, with almost daily announcements of more funding for the police, the National Health Service and schools. But the Conservatives will struggle to win a majority in any forthcoming election if Johnson’s failure to fulfil his promise to take Britain out of the EU by the end of October leaves Nigel Farage’s Brexit Party as a viable alternative for disappointed Leave voters.
The prime minister can still escape from his trap by securing a Brexit deal based on the existing withdrawal agreement with a revised version of the backstop. He has dismissed speculation that he is moving towards a Northern Ireland-only solution that would maintain regulatory alignment on the island of Ireland while allowing the rest of the UK to pursue a looser trading arrangement with the EU. Johnson has yet to present any detailed proposals to the EU but if he is willing to embrace a solution for the Border based on regulatory alignment, Dublin and Brussels should be ready to consider creative proposals to reassure Northern unionists that their interests and identity will be protected.