LONDON — Prime Minister Boris Johnson was accused Tuesday of an “unlawful abuse of power” in a high-profile court case about who runs the show in Britain: Parliament or the prime minister.
The Supreme Court is hearing challenges to Johnson’s contentious decision to suspend Parliament for five weeks — an unusually long break, coming just before Britain is scheduled to leave the European Union on Oct. 31.
Petitioners accuse Johnson of trying to curtail scrutiny by lawmakers. A Scottish court agreed, ruling last week that the five-week suspension was an “egregious” overreach, designed not as a brief pause between parliamentary sessions, as is customary, but to foil the legislature’s ability to shape Brexit plans.
An English court, however, dismissed a related case, determining that the issue was a political matter and not one for courts to decide.
The Supreme Court is hearing both cases on appeal.
[Boris Johnson booed by protesters, berated by prime minister in Luxembourg]
In her introductory remarks, Brenda Hale, the president of the Supreme Court, said the “serious and difficult question of law is amply demonstrated by the fact that three senior judges in Scotland have reached a different conclusion from three senior judges in England and Wales.”
Reflecting that significance, the formally out-of-session Supreme Court has been summoned for an emergency hearing, and the number of judges has been increased from the usual five or seven to 11. A total of 12 judges sit on the court, but they hear cases in odd numbers to avoid ties.
Which way will the high court lean? The court proceedings — being streamed live over three days — could have far-reaching implications for the balance of power between the legislature, the executive and the judiciary. The proceedings could also drag into play the role of the queen. And they could impact the direction of Brexit.
Dozens of protesters gathered outside the court, holding aloft placards that read “Don’t Silence our MPs” and “They Misled the Queen.”
The English case was heard first. That one was filed by Gina Miller, a business executive and anti-Brexit activist. Miller and her legal team won a similarly momentous 2017 case in which the high court ruled the government must get Parliament’s approval before “invoking Article 50” and starting the countdown to Brexit.
Anti-Brexit campaigner Gina Miller is appealing a case dismissed by a London court earlier this month. (Will Oliver/EPA-EFE/Shutterstock)
Writing in the Independent newspaper on Monday, Miller argued that the current case: “is so much more important even than Brexit. It is about how we are governed, about preserving our ancient democratic freedoms and trying at all costs to stop a dangerous precedent.”
Miller charged Johnson with wanting to “put himself above the law” and suggested that if he’s allowed to have his way, future prime ministers could bring back the poll tax or reintroduce the death penalty without any input from lawmakers.
[Europeans once hoped the British would reverse Brexit. Now, many can’t wait for them to leave.]
David Pannick, a lawyer for Miller, argued in court on Tuesday that it was not proper for the government to suspend Parliament for the “exceptionally long” time as it was frustrating the ability of the legislature to scrutinize the executive, legislate and hold debates. He argued that Johnson’s suspension was a “preemptive strike.”
Johnson, in an interview with the BBC on Monday, disparaged “all this mumbo jumbo about how Parliament is being deprived the opportunity to scrutinize Brexit.”
“What a load of claptrap,” he said, arguing that the suspension was necessary to “set our ambitious agenda for the country” and that Parliament had only lost “four or five days” compared to its typical schedule in late September and October.
Johnson has denied a further contention of the Scottish court: that his government was misleading about its motivations for the suspension, including perhaps to the monarch.
“Absolutely not,” the prime minister responded last week to a reporter who asked if he had lied to Queen Elizabeth II.
The queen must approve any parliamentary suspension, but by custom she must abide by the advice of her prime minister.
Parliament was shut down in the wee hours of Sept. 10, following chaotic scenes on the floor of the House of Commons. It is scheduled to remain shuttered until Oct. 14, unless the court rules against Johnson and orders lawmakers back sooner.
Britain’s Supreme Court is nowhere near as interventionist as the Supreme Court in the United States. But this case is testing the boundaries of the executive and where the courts can weigh in.
“This is really Constitutional Law 101,” said Catherine Barnard, a professor of European law at Cambridge University. “First year constitutional law students coming in don’t need to read textbooks, they just need to read Twitter.”
Britain doesn’t have a written constitution. It relies on the rule of law, precedent and convention. And Johnson is a convention-busting prime minister.
[‘The Trumpization of U.K. politics’: Boris Johnson is busting political norms]
Barnard said that those in the government’s corner will argue that the case should stay “in the political domain … and it means the courts aren’t caught up in political controversy.”
Those in the opposing corner will argue that “surely no government power should be unlimited,” she said.
“It’s a fight almost to the death between the executive and the legislature,” said Jo Maugham, a lawyer and one of the driving forces in the Scotland case brought by 78 lawmakers.
Maugham voiced fears about another possible suspension shortly after Parliament returns on Oct. 14. In theory, he said, Johnson could suspend Parliament for the entire term and “govern untrammeled by the legislature.”
“The prorogation is unusual, so we are seeing unusual litigation flowing from it,” said Raphael Hogarth, a scholar with the Institute for Government think tank. “I think it’s inevitable: Once nobody feels like they know the rules of the game in Westminster anymore they will start turning to the courts.”
Johnson has defended the independence of British judges, saying the judiciary is “one of the great glories of our constitution — they are independent.”
He has also said he will abide by the law. But in the next breath he hints that he may not.
Although Parliament passed a law demanding that he request a Brexit delay if a withdrawal deal hasn’t been agreed by the middle of October, Johnson insists he will not seek any further delays.
“We will obey the law,” he told the BBC on Monday. “But we will come out — and — we will come out, I should say, on 31 October.”
Read more
Former prime minister Cameron says Boris Johnson acted ‘appallingly,’ misled voters on Brexit
Boris Johnson has four options to escape his Brexit mess. One of them is to go to jail.
The ‘rebel alliance’ teamed up to thwart Boris Johnson’s plans. Can it stay united to steer Brexit?
Today’s coverage from Post correspondents around the world
Like Washington Post World on Facebook and stay updated on foreign news
Comments