Financial Times: Boris Johnson provides test for British constitution

19 September 2019

By George Parker and Jane Croft

Boris Johnson will find out early next week if the UK’s Supreme Court believes the extraordinary claim that he lied to the Queen and unlawfully suspended parliament for five weeks to allow him to push through a hard “no-deal” Brexit.

It is a sign of how Brexit has distorted Britain’s ramshackle unwritten constitution and political norms that the principal witness taking on the prime minister in this unprecedented case was John Major, a former Conservative prime minister.

In a written statement to the court, Sir John told the 11 Supreme Court judges that Mr Johnson’s decision to suspend — or prorogue — parliament for five weeks was “substantially motivated” by his desire to stifle debate on Brexit.

The case has put the spotlight on the fragile and uncodified triangular balance of power in Britain between the executive — in the shape of 10 Downing Street — parliament and the judiciary.

“A lot of how the constitution has developed over time has been a series of fudges,” said Edward Garnier, Sir John’s barrister. More prosaically, it consists of a series of laws and non-legal conventions built up over centuries.

The rules have generally worked over time, largely due to a sense of fair play and restraint on all sides, but Brexit has changed the game.

The UK Supreme Court has more limited powers than its US counterpart, which is the guardian of the US constitution and can strike down primary legislation.

By contrast, in the UK, parliament is supreme, but the Supreme Court can declare a government decision-making process unlawful and order ministers to start again.

In Downing Street the mood was initially confident that the 11 justices would not venture into the political quagmire of Brexit. But now there are growing fears that the Supreme Court will give an unwelcome verdict in the prorogation case. Mr Johnson, who is planning to attend the UN General Assembly in New York next week, is braced for a bumpy foreign trip.

“I think we are going to lose,” said one minister. As for whether Mr Johnson lied to the Queen, the minister joked: “There’s probably some 16th century law about what happens if you give bad advice to the monarch.”

Britain’s highest court has been hearing appeals on two contradictory rulings by courts in England and Scotland over whether Mr Johnson acted lawfully in suspending parliament for five weeks until October 14.

The London High Court ruled that it did not have the authority to review such a case while Scotland’s highest court not only decided that it could pass judgment but that Mr Johnson had acted unlawfully.

The prime minister told the monarch that he wanted to suspend parliament so that he could prepare a new legislative programme. This package of draft bills, contained in the Queen’s Speech, will be announced by the sovereign in the House of Lords on October 14. But few at Westminster believed that Mr Johnson’s unusually long “prorogation” was anything other than an attempt by the prime minister to stop MPs debating Brexit at a crucial time ahead of “Brexit Day” on October 31.

The prime minister, who refused to provide a witness statement to back up his claim he had behaved with complete propriety, effectively stands accused of lying to the monarch about the real reason for the unusually long prorogation.

Lord Garnier noted the government’s argument that MPs were perfectly capable of defending their rights without resorting to the courts, but added that this was not possible if Mr Johnson had closed down the House of Commons.

Mr Johnson, using prerogative powers inherited from medieval monarchs, argues he is within his rights to suspend parliament.

But Brexit has also emboldened parliament to flex its muscles over the executive. John Bercow, the Commons Speaker, has bent the rules to allow MPs to take over the parliamentary order paper to pass laws to tell Mr Johnson how to handle Brexit.

With both sides stretching constitutional convention to breaking point, it was inevitable that before long the judiciary would be asked to act as referee, dragging the judges into politics.

And if that was not enough, Queen Elizabeth II — who resides a mile away at Buckingham Palace — has also been pulled into the fray.

Although she was bound by convention to agree to Mr Johnson’s request to suspend parliament, she will not be amused if the Supreme Court rules that she was asked to do it under false pretences.

The events in the Supreme Court this week have been watched with growing alarm in Downing Street. Mr Johnson’s allies believe that apart from a victory, the best outcome would see the court rule that the prorogation of parliament was justiciable, or within the judges’ right to review, but that Mr Johnson had taken the decision lawfully.

“That would be a bit worrying, because it would see judges enter the political arena and question the use of the royal prerogative,” said one government insider. It would also imply the court could intervene next time Mr Johnson tried a similar manoeuvre.

But there are fears the Supreme Court could go further and rule that not only was the suspension of parliament justiciable, but that Mr Johnson’s decision was legally defective. Parliament would probably have to be reconvened, perhaps immediately, although the government has indicated it might try a further suspension.

The most disastrous outcome would be for the court to side with the Scottish justices and conclude they did not believe Mr Johnson’s explanation of his actions at all. “Johnson lied to Queen” headlines would be guaranteed in every newspaper.

You can access the full article in the Financial Times here.

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