Cabinet ministers and other senior members of the government are privately warning that the Supreme Court decision to rule Boris Johnson’s attempt to suspend Parliament “unlawful” has put the judiciary on a path to radical reform.
Publicly, the government is insisting that it accepts and respects Tuesday’s Supreme Court’s judgment, in which 11 of the most senior judges in the country unanimously agreed the attempt to prorogue Parliament was unlawful.
But behind the scenes, there is widespread fury from the top of Downing Street down about what they see as the judges making an unprecedented political intervention that, sources claim, will ultimately result in a written constitution, the scrapping of the Human Rights Act, and either a US-style Supreme Court with appointed judges or the abolition of the Supreme Court and a return to the old English system of Law Lords being the final court of appeal.
Leader of the House of Commons Jacob Rees-Mogg told a cabinet phone call last night that the judges' decision amounted to a "constitutional coup" against the government.
He was slapped down by justice secretary Robert Buckland this morning, who warned that personal attacks on judges were "completely unacceptable".
There has also been pushback from the legal profession. High-profile human rights lawyer Schona Jolly QC tweeted that there were “No excuses for politicians, media or “sources” crying foul. The judgment was clear. The parameters of our governance are clear. We have a functioning rule of law.”
Mark Elliot, the deputy chair of Cambridge University's law faculty, said that the attorney general Geoffrey Cox "would have fundamentally failed to understand the judgment" if it was true he claimed no "prorogation over the past 50–100 years would have survived today’s judgment.’
However, some members of the cabinet believe it is now inevitable the UK will end up with an American-style Supreme Court. At least one cabinet minister privately told colleagues that is where they think the country is headed, following yesterday’s judgment.
In a sign of the scale of private anger, a member of the government texted BuzzFeed News a news story from Iran about judges cracking down on free speech. The source asked: “The next time this kind of thing happens can we really criticise another country’s judiciary for being political?”
The comparison between the UK Supreme Court and Iran was raised in the House of Commons by Liberal Democrat MP Sarah Wollaston, who said anyone in the government who undermines the Supreme Court should resign.
Speaking in the House of Commons on Wednesday, Cox responded: "What is wrong is that motives of an improper kind should be imputed to any judge in this country."
However, Cox went on to say MPs would have to “reflect” on whether politicians could end up approving judicial appointments in the wake of the Supreme Court’s decision. The judges had the right to make “new law” by ruling against the government yesterday, but this would have “consequences”, he said.
A government source told BuzzFeed News: “The next person with a decent majority will move towards politically appointed judges. Whether it is us or Corbyn, you cannot have judges intervening in political decisions like this.”
“We are halfway there [towards a US-style system] but by accident. That is no place to be,” the source said.
Other senior Tories are arguing for reform in the opposite direction.
Rather than have a US-style Supreme Court with controversial confirmation hearings that further politicise previously unpolitical areas of public life, some Tory MPs are determined to pull the courts back to what they see as their proper purpose of enforcing existing laws rather than making new ones.
This would mean a return to the system of Law Lords being the final court of appeal. The Supreme Court was established in 2009, replacing the Law Lords — a decision that several Tory MPs are arguing was a mistake.
Earlier on Wednesday, Tory grandee Desmond Swayne told Sky News that a Supreme Court should never have been established and that, if the Tories win a majority at the next election, they should "have the guts" to return to the Law Lords system.
MPs who spoke to BuzzFeed News said that the government’s row with MPs over Brexit had not changed the fact that most Tories do believe in the supremacy of Parliament as an expression of “the will of the people”. They said the government should scrap the Human Rights Act and break the link with the European Court of Human Rights, and called for a written constitution.
Cox signalled the government would consider introducing a written constitution after Brexit: “I do think that as we depart the European Union, there is ground for thinking again about our constitutional arrangements, how they should be ordered, and in doing so I think a widespread public consultation [on a written constitution] would be essential.”
“No doubt over the coming months and years this will be a subject of important concern to this House,” he said.
A Tory source said: “What the Supreme Court ruling has done is force a choice between moving towards a full-blown US system and return to the traditional pre-ECHR English system. Lady Hale has cut away the middle ground.”