Boris Johnson Caught in Supreme Court’s Constitutional Web
Boris Johnson Caught in the Supreme Court’s Constitutional Web
(Bloomberg) -- Britain’s top judges moved out of the Houses of Parliament a decade ago. On Tuesday, the 11 Supreme Court justices declared their independence from the building across the road by delivering a stinging rebuke to Boris Johnson.
The panel, sitting in its own building in Westminster, positioned itself as the ultimate arbiter in a constitutional clash and reasserted that Parliament is the senior partner in government.
“The court is clearly saying that we see ourselves as properly policing the boundaries of constitutional behavior,” said Raphael Hogarth, an associate at the Institute for Government, a London-based research group. “The idea of Parliamentary accountability, responsible government -- that is the language of a constitutional court.”
The legal challenge to the powers of the prime minister shows how the political infighting over Brexit had strained Britain’s largely unwritten constitution to its limits. For while the judgment was hailed by lawmakers for holding Johnson to account, it faced criticism from a pro-Brexit group for revealing what it called “totally political motives.”
The prime minister said he thought the judges reached the wrong decision, but that he would respect the judicial process. He says he is determined to deliver Brexit by the end of next month, whatever the cost, even if it means leaving with no agreement in place to cushion the blow.
Johnson framed the shutdown of Parliament as way to bring forward a new domestic agenda but his critics accused him of attempting to deny lawmakers the chance to stop him forcing the U.K. out of the European Union without a deal next month.
The prime minister’s decision to suspend Parliament for five weeks had wrecked the ability of Britain’s elected politicians to fulfill their crucial democratic role, the court said. It not only ruled the move “unlawful” but went further by quashing the decision, allowing lawmakers to return to work.
“The longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government,” Judge Brenda Hale said while wearing a distinctive spider brooch that’s gone viral on the internet.
It’s a decade since the Supreme Court first sat. From the Second World War until 2009, the committee of law lords met in a what was intended to be a temporary room upstairs from the chamber of the House of Lords.
While many European countries including Germany and France have constitutional courts to adjudicate on the separation of powers between the executive, legislative and judicial branches of government, the Lords had largely eschewed political decisions. The definitive and unanimous ruling against Johnson’s suspension of Parliament opened up a new area.
“This is probably the most important question they have ever answered,” said Hazel Moffat, a public law partner at DLA Piper. The court emphasized that the U.K. does have a constitution, she said. “There have been lots of calls saying that we need something in writing, but Lady Hale is saying ‘No, we don’t’.”
Further court battles could lie ahead.
U.K. Cabinet minister Jacob Rees-Mogg accused Supreme Court judges of overthrowing the British constitution, people familiar with the matter say.
The Brexiteer MP made the comments in phone call with Cabinet colleagues Tuesday, according to two people familiar with matter, speaking on condition of anonymity because the call was private.
Rees-Mogg said the Supreme Court judgment amounted to a constitutional coup, the people say.
Johnson’s team have threatened to ignore the new law passed by Hilary Benn that was designed to stop a no-deal divorce by forcing the prime minister to seek a Brexit delay by Oct. 19 if he is unable to reach agreement with the bloc.
“Of course, if the government seeks to act beyond its powers, then that may lead back to court,” said Charles Brasted, head of public law at Hogan Lovells. “Its obligations under the Benn Act are undoubtedly a matter of law that could be adjudicated if required in the normal way.”
Gina Miller, who brought one of the two cases reviewed by the Supreme Court, said that she hoped the unequivocal nature of the ruling would limit the need for new legal challenges.
“We may well have to do that, but I hope we don’t have to go to those lengths,” Miller said in an interview on Bloomberg Television.
The decision has left the court looking more and more like a constitutional court, said Nikos Skoutaris, a constitutional professor at the University of East Anglia. “Whenever there is a clash between the Parliament and the government, the Supreme Court could step in in the same way that other constitutional courts around the globe do.”
To contact the reporters on this story: Jonathan Browning in London at jbrowning9@bloomberg.net;Jeremy Hodges in London at jhodges17@bloomberg.net
To contact the editors responsible for this story: Anthony Aarons at aaarons@bloomberg.net, Christopher Elser
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