Brexit, Boris Johnson, and the Courts - The Orca
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Brexit, Boris Johnson, and the Courts

Suzanne Anton
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Suzanne Anton: One aspect of the ongoing Brexit saga might have ramifications for Canada.

The Brexit shock waves reverberating through the UK are massive in their significance to history, to politics, and to the Parliamentary process. For political junkies like myself they are riveting.

One of the more compelling stories is that the judiciary has now entered the fray. As someone acutely aware of courts taking an interest in politics, I think this is of momentous import, particularly if the UK Supreme Court rules against the Prime Minister as predicted.

Having just spent a month in the UK, my impression is that generally, members of the British public just want the Brexit issue to go away. Many of those who thought leaving would be disastrous no longer see it that way. However, many are still flying the European flag in vigorous protest, trying to find new ways to stop the process.

Prime Minister only since July, Boris Johnson is at the centre of the maelstrom. He’s a determined and single-minded Brexiteer who’d rather be “dead in a ditch” than ask the EU for a further extension after October 31, deal or no deal.

Perhaps his most controversial decision has been to prorogue Parliament. That stirred the pot.

Parliament went on recess from July 25 until September 3. On August 28, Johnson advised the Queen that Parliament should be prorogued between September 9-12 until October 14; about five weeks. This is longer than usual – the longest since 1945 – but not unheard of, and with the usual September recess for party conferences, only about 5 to 7 days of Parliamentary time would be lost.

For a new prime minister in a different context, prorogation would be routine to prepare for a Queen’s speech and an agenda for the new government. No one would have blinked an eye. For a prime minister with a time-sensitive mission, it was seen as a devious way of keeping Parliament out of the debate.

Court proceedings were launched in both Scotland and London. The two courts saw the matter differently.

Both courts had to consider whether they should get involved at all. In other words, was the matter “justiciable?”

Scotland said Yes, while the UK court said No.

In my view, the UK high court got it right. They concluded that the decision to prorogue, the duration, and the advice given to the Queen were matters “inherently political in nature and there are no legal standards by which to judge their legitimacy.” As such, it was impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive.

By contrast, the Scottish court couldn’t resist getting involved. The court found that the true reason for the prorogation was to reduce the time available for parliamentary scrutiny, and allow the Executive to pursue a No Deal Brexit without further parliamentary interference.

Both decisions were appealed to the Supreme Court of the UK, which heard the appeal last week. The arguments were broadcast live; 4.4 million people tuned in.

At the end of the hearing, the President of the Court was at pains to say that the case was not about Brexit, but solely about whether prorogation was lawful.

Really? The only discernible reason for the litigation is to stop Brexit, and to cancel the result of the Brexit referendum, the democratic choice of the people of the UK.

Just by hearing the case, the Court has become part of the political process.

Their decision is imminent. However they rule, their decision will set (or reinforce) a precedent on executive and judicial power. Courts and Parliament have different roles. This case may change that.

ADDENDUM:

In the unanimous ruling, President of the Court Lady Hale said:

That advice [to prorogue] was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect…It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation …. It too was unlawful, null and of no effect.” 

Strong words indeed. 

My interpretation of their decision:

The issue was too important for Parliament to be out of in session. Hence the prorogation was unlawful and did not happen. Parliament will reconvene as the Speaker requires; in fact, tomorrow.

Like Johnson, the Scottish court of first instance, and the UK high court, I don’t believe the courts should have become involved. But the Supreme Court gets the last word, and has given it.

Any time there’s a prorogation when an important matter is before Parliament, the court can rule that prorogation is invalid. 

It will take some time for the full implication of the decision to be understood. What seems to clear, though, is that it will have profound implications in the relationship between courts and Parliament in all Westminster-style democracies.   

Suzanne Anton QC is a former Attorney General of BC and Vancouver City Councillor

SWIM ON:

  • Michael Taube referenced Change UK – a now-former group of former Labour and Conservative MPs opposed to Brexit – when discussing independent MPs, and Jody Wilson-Raybould.
  • Speaking of Labour, In her previous post, Suzanne Anton tackled the NDP’s seeming politicization of a workers’ compensation review.
  • Robert McGarvey brought up Brexit in an oddly prescient piece from April, wondering if Justin Trudeau’s critics had a point.
SWIM ON