In the most recent development of the seemingly never-ending Brexit saga, the courts dealt Prime Minister Boris Johnson and his supporters a major setback in their attempt to prorogue Parliament in the leadup to the Brexit deadline. Like all else in the world of Brexit-era British politics, this case exists in the center of a complex web of questions and issues, both about Brexit and the political fabric of Britain itself. Ostensibly, the decision, made by Britain’s Supreme Court, pertains specifically to the insufficient justification provided by the government to prorogue Parliament. However, the implications, both for the impending Brexit deadline and for the future of British politics in general, are far reaching.
The legal case that was resolved on Tuesday began in August, when the Queen approved Prime Minister Boris Johnson’s request to temporarily suspend or prorogue Parliament before beginning a new legislative session. As Johnson was quick to remind his critics, the act of proroguing Parliament is neither illegal nor extraordinary (John, 2019). It is in fact a common and necessary part of British politics which brings about a new legislative session. The point of contention which was litigated in this case was the specific timing and duration of the prorogation. Critics, including Speaker John Bercow and Labour leader Jeremy Corbyn, argue that the extraordinary circumstances facing the British government at the time precluded any notion that such a decision could be simply procedural (John, 2019). It is certainly suspicious that the prorogation would eliminate most of the time between its announcement and the deadline for Brexit, in doing so reducing Parliament’s ability to circumvent the Prime Minister’s unpopular “do or die” Brexit strategy which is likely to lead to a no deal Brexit. (Mueller and Specia, 2019).
It was this debate that was played out Tuesday in the Supreme Court. Tasked with determining the legitimacy of Johnson’s prorogation, the court unanimously ruled that the act had been unlawful, on the grounds that it “had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.” (Britton, 2019). The court was unconvinced by the government’s claims that the prorogation was necessary, particularly considering the conditions under which it was called and its unusual length. What this means in the short term is clear. Bercow announced that Parliament would be reconvening on Wednesday the 25th to resume proceedings, particularly on the impending issue of Brexit (Britton, 2019). The long-term implications of this saga, if it is indeed even over, are far less clear and far more important.
In the midst of Brexit proceedings which, at seemingly every turn, threaten some aspect of British democracy, this prorogation affair has been a point of particular concern. While many are primarily concerned with the practical importance of Parliament returning to session prior to the Brexit withdrawal date, the larger scale meaning cannot be ignored. The courts decision clearly implies that Johnson and his government attempted to illegitimately use its authority to prevent the legislature from opposing a policy objective. That should be worrying to those concerned with the health of British Democracy.
It should be said that, in many ways, this situation demonstrates the healthy functioning of checks and balances. The executive overstepped its prerogative by using its power illegitimately and the court constrained it by overturning the action. The Prime Minister has begrudgingly acquiesced and it seems government will resume its normal (given the other present circumstances) operations (Kuenssberg, 2019). However, there are still good reasons to be concerned. For one, some breakdown has occurred if proceedings reach a point where the executive must be actively constrained. The nature of British democracy, governed primarily through norms and without a constitution, gives ample opportunity for such conflicts over authority. There was no law critics could cite which would clearly show his actions to be illegal. The Supreme Court made its ruling based on a judgment rather than a literal interpretation of law. It is worth considering whether the British norms-based system is, in part, responsible for crises such as this, which, given a different court or Prime Minister, may have posed a more serious threat.
The Supreme Court decision, though preventing what it sees as a threat to democracy, has created another concern for the British government. The case has caused serious harm to Boris Johnson’s short but already unstable time as Prime Minister. The court’s decision has only amplified calls for his resignation (Kuenssberg, 2019). While it was the obligation of the courts to rule as they saw fit, it is a worry that, in a time which would seem to most necessitate strong leadership in Britain, the court’s decision only further weakened the position of an already embattled Prime Minister. Perceived ineptitude of political leaders in times of crisis like this pose a serious worry for the health of British democracy.
Furthermore, the future of Brexit is no clearer today than it was before the court’s decision came down. While Parliament now has significantly more time to attempt to find a solution to their current crisis, the root causes of the impasse which faces them have not changed. Several paths are still technically open, but outcomes range from generally unsatisfactory to disastrous. A law has already been passed which would, theoretically, necessitate the Prime Minister to ask for an extension past the October 31st deadline if no deal is reached between the EU and Britain (Barnes, 2019). While the ideal scenario would involve the two sides reaching some kind of deal prior to the withdrawal date and stably (if unhappily) separate. This scenario would, however, require negotiators to solve the various paradoxes which have beguiled them for months. Unless some breakthrough occurs, Britain is likely to find itself in a “constitutional” crisis, where a leader is likely to have to violate one or many norms or laws to produce their desired, or even tolerable, result. Such a scenario would be bad for both the people and government of Britain.
Barnes, Peter. 2019. “What Will Happen with Brexit in the next Month?” BBC News, September 24, 2019, sec. UK Politics. https://www.bbc.com/news/uk-politics-46393399.
Britton, Bianca and McKenzie, Sheena. 2019. “UK Supreme Court Rules Boris Johnson’s Suspension of Parliament Is Unlawful.” CNN. Accessed September 24, 2019. https://edition.cnn.com/2019/09/24/uk/government-loses-supreme-court-suspension-case-gbr-intl/index.html.
John, Tara. 2019. “Queen Approves Boris Johnson’s Plan to Suspend UK Parliament.” CNN. Accessed September 24, 2019. https://edition.cnn.com/2019/08/28/uk/brexit-suspend-parliament-gbr-intl/index.html.
Kuenssberg, Laura. 2019. “Suspending Parliament Was Unlawful, Court Rules.” BBC News, September 24, 2019, sec. UK Politics. https://www.bbc.com/news/uk-politics-49810261.
Mueller, Benjamin, and Megan Specia. 2019. “U.K. Supreme Court Declared Boris Johnson’s Actions Unlawful. What Happens Next?” The New York Times, September 24, 2019, sec. World. https://www.nytimes.com/2019/09/24/world/europe/brexit-supreme-court-uk-parliament.html.