The British Parliament is on a five-week break. Or is it?
That’s the question UK courts are currently trying to decide: whether Prime Minister Boris Johnson’s decision to suspend — or “prorogue” — Parliament from September 9 until October 14 is lawful.
And right now, the various courts involved don’t seem to agree.
On Wednesday, a three-judge panel in Scotland’s highest civil court ruled Johnson’s decision to put Parliament on pause for five weeks was illegal “because it had the purpose of stymying Parliament.”
But shortly after that, a court in England explained why they came to an absolutely different conclusion. The decision was reached last week, but according to those judges’ explanation that came out Wednesday, prorogation was a political issue, and the courts just couldn’t get involved.
The court in Belfast, Northern Ireland, is also expected to hand down its own verdict on prorogation on Thursday. Depending on what those judges decide, it could set up a legal showdown in the United Kingdom’s highest court next week, on September 17.
The challenge to Johnson’s prorogation was initially brought in Scottish courts because the the High Court in England was on holiday, and as the BBC explained, the ruling is still a big deal as the the case was against “the actions of the Westminster government which ... affects the whole of the UK.”
Not to get into the weeds of the UK’s legal system, as it’s very complicated because different parts of the UK — England and Wales, Scotland, and Northern Ireland — all function as separate entities. But the UK Supreme Court is, in most cases, above all of those separate jurisdictions and can be the final arbiter on UK law. And that’s what looks about to happen in this case.
This matters, because if Johnson is found to have violated the law in suspending Parliament, he could be ordered to bring Parliament back. Though some MPs are arguing he should do so now that the Scottish court has ruled, the prime minister has dismissed this idea — though his office conceded that wouldn’t be the case if the UK’s highest court weighed in against him.
This would be another blow to Johnson, who’s suffered a series of defeats to begin his premiership. It would also make clear the restraints on his power. And though Parliament has already passed a bill blocking a no-deal Brexit, returning to work will give them more time to try to advance their own Brexit plans.
The Scottish court to Boris: We’re onto you
The Scottish court’s argument was pretty similar to the one Johnson’s critics have been making: that the prime minister put Parliament on a five-week break to prevent his opponents from complicating his Brexit plan, which is to take the United Kingdom out of the European Union on October 31, with or without an agreement in place.
“This was an egregious case of a clear failure to comply with generally accepted standards of behavior of public authorities,” the judges’ summary said, though the full decision will be released later this week.
“It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no-deal Brexit without further parliamentary interference,” they continued.
However, the Scottish judges did not force Parliament back in session. But some members of Parliament (MPs) are using the Scottish ruling to argue that they should be allowed to come back to work.
"The PM has closed down our Parliament, gagged our democracy, and prevented our constituents' voices from being heard"— BBC Politics (@BBCPolitics) September 11, 2019
Opposition MPs against the suspension of Parliament hold a protest in Westminster, as a Scottish court rules the closure is unlawfulhttps://t.co/ubv8PKRbjX pic.twitter.com/5GXmICqVpA
So do these legal challenges have a chance?
Prorogation itself is not usually controversial, as it’s normally used to mark the end of one legislative session and the start of another. It’s pretty typical, especially for new governments like Johnson’s, to suspend Parliament before it lays out its new agenda. And, as Johnson himself pointed out when he made the call, the current legislative session had been one of the longest in history.
The process is usually straightforward: The prime minister goes to the Queen, asks her to prorogue Parliament, she says “yes,” as it’s usually just a formality, and Parliament goes on a brief one- or two-week break. The new parliamentary sessions starts with a Queen’s speech, laying out the new government’s agenda, and that’s that.
But Johnson’s decision looked radical because he decided to put Parliament on hold for five weeks — from September 9 to October 14. This also wasn’t just any random five-week period: It was five of the eight total remaining weeks until the Brexit deadline on October 31.
That left Parliament with limited time to scrutinize and vote on any new deal that Johnson might, on the off chance, return from Brussels. Or, most critically, it would stymie Parliament’s ability to stop the UK from exiting without any deal at all, which experts and observers say could be chaotic and dangerous for the UK’s economy.
Johnson’s decision to suspend Parliament has backfired already. It caused a fractious bunch of MPs to join together across political parties (including a handful within Johnson’s own Conservative party) to quickly try to pass a law that would force the prime minister to ask for a Brexit extension if he couldn’t bring back a new UK-EU deal to Parliament by October 19.
That law is now in effect, though Johnson has indicated he’s going to ignore it, setting up another potential constitutional crisis that could, for real, possibly send Johnson to jail.
But the UK isn’t there yet. Right now it’s still battling over this prorogation question. The Scottish court’s decision is definitely a big deal, and it’s sure to inspire Johnson’s opponents. But it’s the UK Supreme Court that will make the final call, and they’ll be looking at not just the Scottish judges’ ruling but what the English and Northern Ireland courts say, too.
The UK doesn’t have a formal constitution, and, as explained above, prorogation is usually uncontroversial. Johnson definitely has the ability and the right to prorogue Parliament. The Queen, who granted his request, could technically deny it, but that would have been just as earth-shattering, as the monarch stays out of the political fray.
But there are some questions about Johnson’s motive and whether he might have abused his powers if he intended to purposefully sideline Parliament in the Brexit debate.
As Jack Simson Caird, an expert at the Bingham Centre for the Rule of Law, wrote in a blog post, “there is no constitutional principle to support the idea that the government should be able to prevent Parliament from legislating. On the contrary, the norms of the constitution are designed to enable the government and Parliament to cooperate in the process of making law.”
Basically, the government and Parliament are supposed to work together. Johnson’s prorogation could be seen as an attempt to circumvent this process altogether. It’s definitely problematic and not at all how the system is supposed to work. But whether the UK’s highest court will weigh in and say it’s illegal is another matter entirely.
At the very least, Brexit, once again, has put the country into strange and unprecedented territory.