What Happens If Johnson’s Plan Is Unlawful, Supreme Court Asks
What Happens if Johnson’s Plan Is Unlawful, Supreme Court Asks
(Bloomberg) -- And now to the hard part.
The U.K. Supreme Court spent three days listening to testimony about the lawfulness of Boris Johnson’s suspension of Parliament. The judges’ questions targeted not whether the prime minister’s move to prorogue the legislature was incorrect, but what they could do about it if it was.
Their verdict, due early next week, is solely focused on Johnson’s five-week suspension of Parliament but could have wider repercussions if it cuts his options as his Oct. 31 Brexit deadline approaches. The court could venture into new areas, forcing him to recall Parliament. That would allow politicians to return with momentum to stop him.
The judicial equivalent of a slap on the wrist -- a ruling that the suspension was wrong, but not forcing a return of Parliament nor saying that he can’t prorogue lawmakers again -- would allow Johnson to try to send Parliament away a second time.
“He has room for maneuver, but I suspect that if he asks for another prorogation there will be another lawsuit,” said Tom Mullen, a professor in constitutional law at the University of Glasgow.
Before Johnson suspended lawmakers this month, he lost control of the agenda in Parliament and failed to get the necessary majority to call for a fresh election. Lawmakers also passed a law saying he can’t leave the European Union without a deal by Halloween. Having staked his reputation on leaving by that date with or without a deal, Johnson couldn’t be in a tighter spot.
The Supreme Court case is the result of lower-court challenges in England and Scotland, which argued Johnson’s reason for suspending Parliament was to remove its ability to scrutinise. While the English court said it lacked jurisdiction to rule on the political question, the Scottish court found Johnson was trying to stymie the legislature and Parliament should be recalled.
The parties challenging the government -- businesswoman Gina Miller in London and lawmakers in Scotland -- “are inviting the courts into forbidden territory and one that is essentially a minefield, an ill-defined minefield,” Richard Keen, a government lawyer, said in court Thursday.
During the government’s case, judges pressed Keen and another attorney, James Eadie, for insight into how Johnson would react to a loss, seeming to want to prevent the prime minister from finding a way around a possible order that Parliament must return. Keen’s submission that it was up to the government to decide on a response drew skepticism from Judge Patrick Hodge.
“How would it then be for Parliament to decide how to respond because Parliament wouldn’t then be there?” Hodge asked.
The landmark case could also curtail the British executive’s longstanding power over when the legislature sits, which Johnson says is a right for the prime minister and Parliament.
“The entire strategy from day one has been to make it as difficult as possible for the courts to get into it,” said Shubhankar Dam, a public law professor at the University of Portsmouth. “If it really gets into the whole business of ordering when or when not parliament should be sitting, that’s a whole new territory for the court.”
“None of this is easy,” said Supreme Court President Brenda Hale when she wrapped up proceedings on the final day.
As both sides pondered whether there was greater significance to her words, neither will be entirely confident in their position until the ruling is made.
“If I had to call it I’d say the challengers win and the government loses,” Mullen said. “But the court can rule against the government in principle but that in this case the facts haven’t been borne out.”
To contact the reporters on this story: Franz Wild in London at fwild@bloomberg.net;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, Jessica Shankleman
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