Johnson Struggles in Supreme Court on Day One of Suspension Case

(Bloomberg) -- The opening day of an unprecedented legal challenge to the powers of the British prime minister ended with Boris Johnson on the back foot and his room for maneuver on Brexit shrinking.

On the first of three days of hearings on the legality of Johnson’s decision to suspend Parliament, a Supreme Court judge asked Johnson’s attorney for a written statement outlining the prime minister’s plan if the justices rule against him. Meanwhile, anti-Brexit campaigners led by lawyer Jolyon Maugham and Scottish lawmaker Joanna Cherry are asking a court to seek an extension to Brexit negotiations if Johnson refuses to do so himself.

Johnson Struggles in Supreme Court on Day One of Suspension Case

“Can we take it that he wouldn’t prorogue Parliament again?” Justice Brian Kerr asked Richard Keen, a lawyer for the government on Tuesday, adding that he’d like a document outlining Johnson’s plan. Keen, eventually, agreed to do so.

The questions from Kerr and the other 10 Supreme Court justices hearing the case suggested that Johnson’s travails in Luxembourg on Monday weren’t the only bad news for his attempts to emerge from Britain’s biggest political crisis in living memory.

“Some of them appeared to be supportive,” Robert Hazell, a professor for constitutional law at University College London, said of how the Supreme Court justices hearing the challenge to Johnson. “They appeared to give Lord Keen a harder time. If I were the government, after the first day, I would be feeling a bit more worried.”

Anti-Brexit campaigners such as Maugham and Cherry have already made their next move. Last week, they filed an application with a Scottish court to force Johnson to seek an extension beyond his current Oct. 31 deadline. It wrests on a legal principle known as nobile officium -- abbreviated by lawyers to “nob off” -- which means the courts can provide a remedy when that’s a last resort to enforcing a law.

Johnson has publicly contradicted himself, saying both that he’ll abide by the law and that he won’t seek an extension, requiring the courts to uphold the law, Maugham said Tuesday in an interview.

“He’s said that he’ll abide by the law, but he’s also said that we’ll leave by Oct. 31 no matter what,” Maugham said. “It’s a very unusual circumstance and you have to give an order.”

Maugham said that if his side wins, the court could potentially send a letter requesting an extension to the EU itself, turning it into another litmus test for how far the courts are prepared to wade into the political arena. Before Parliament was suspended, it passed a law introduced by Labour lawmaker Hillary Benn requiring Johnson to ask the EU to extend the deadline until Jan. 31 if he’s unable to secure a new deal and get it through the legislature.

Johnson Struggles in Supreme Court on Day One of Suspension Case

The courts are able to find Johnson in contempt if he doesn’t follow the Benn Act, something that is “straightforward to prove,” according to senior trial attorney Richard Clayton, whose practice includes constitutional matters.

“If the court holds that Johnson is in contempt for failing to comply with the Benn Act by sending an appropriate letter by October 18, the court can devise a means of signing the letter,” Clayton said.

Regardless of how the court cases pan out, the risk of a no-deal Brexit remains high, UCL’s Hazell said, citing the unsuccessful meetings Johnson had with European Commission President Jean-Claude Juncker and Luxembourg’s Prime Minister Xavier Bettel. The latter told reporters that it’s time for Johnson to “stop speaking and act” after noise from a nearby anti-Brexit protest prompted the British leader to drop out of their joint press conference.

“There’s still a real risk of a no deal, because of the seeming lack of progress by the U.K. government and the hardening of the attitudes” of the remaining EU countries, Hazell said. “It was clear from the episode in Luxembourg that the EU’s patience is now exhausted.”

©2019 Bloomberg L.P.

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