Brexit’s Big Mystery? How Johnson Will Respond to Court Ruling

(Bloomberg) --

Britain’s top court is set to rule Tuesday morning whether Boris Johnson’s controversial suspension of Parliament is legal. With hours to go before the decision, it’s still unclear how the prime minister will respond if he loses the case.

If the Supreme Court finds Johnson’s move broke the law, he could be forced to recall the legislature, giving his opponents of a no-deal Brexit time to thwart his threat to leave the European Union without a deal by the end of October.

But mixed messages from ministers and government lawyers have only added to the confusion if the court, wary of overreach, stops short of making a definitive order and instead issues a simple declaration that the suspension was “unlawful.“

“Generally speaking, a declaration is enough,” said Murray Hunt, the director of the Bingham Centre for the Rule of Law and a legal adviser to Parliament. “But it’s slightly unusual because of the amount of doubt that was being sown in advance of what might happen.”

The unprecedented legal challenge to the power of the prime minister shows how the political infighting over leaving the EU has strained Britain’s largely unwritten constitution to its limits. It has also pushed the judiciary into the uncomfortable position of ruling on a question of politics, something the U.K.’s highest court has largely eschewed.

The case is the result of lower-court challenges in England and Scotland, which have different legal systems, that argued Johnson’s real reason for suspending Parliament was to stop it from holding him to account. 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 top court ruling will come after ministers cast doubt on the decisions of Scottish justices, with Business Minister Kwasi Kwarteng saying: “Many people up and down the country are beginning to question the partiality of the judges.”

The government’s lawyer has said it will abide by the ruling.

“It is not for the executive to give undertakings to obey the law,” Richard Keen said in response to a judge’s question. “The executive does obey the law and if the court tells us what the law is, we will address that.”

The justices have three main obstacles if they are to rule the controversial move was unlawful. First, they have to decide whether the suspension is even a matter for the courts to review. While the government has said it made a purely political decision, opponents responded by challenging the level of discretion the executive can wield.

Since the cases were first brought, “the issue that it should never be for the courts has been chipped away at,“ Hunt said.

If the judges clear that hurdle, they must next consider whether Johnson’s motivations were improper and whether the effect of the suspension curtailed debate at a crucial juncture. It was an argument that found favor in Scotland, with one judge declaring the five-week prorogation “egregious.” A note from the prime minister dismissing a September session of Parliament as nothing but a “rigmarole” was considered important.

The question of what to do next may be the most difficult. Careful not to be seen as overly interventionist, the justices devoted the end of the hearing to exploring the consequences of a declaration that the suspension was unlawful. David Pannick, an attorney for Gina Miller, a campaigner against Brexit, urged the judges to limit themselves and let the politicians decide.

“The appropriate way forward in this unusual and difficult circumstance is to let Parliament sort out the problem,” he said.

That leaves Johnson with “wriggle room,” said Tom Mullen, a professor in constitutional law at the University of Glasgow. “The court may be content to leave it at that.”

To contact the reporter on this story: Jonathan Browning in London at jbrowning9@bloomberg.net

To contact the editors responsible for this story: Anthony Aarons at aaarons@bloomberg.net, Christopher Elser

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