Brexit pushes Supreme Court into political fray

Brexit has devoured two British prime ministers and is chewing up a third. The two main political parties have been sent into meltdown, relations between the UK's constituent countries strained, and the conventions of parliament bent to breaking point.

Over the road from parliament's home in the Palace of Westminster, in the former Middlesex Guildhall, the third branch of government is being asked to pick up the pieces.

Eleven judges of the UK Supreme Court will on Tuesday begin to hear the challenge against Boris Johnson’s advice to Queen Elizabeth II to suspend parliament for five weeks in the runup to the Oct. 31 Brexit deadline.

A decision against the prime minister will be gravely embarrassing and would likely see parliament recalled early, before Oct. 14. The impact on the course of the Brexit process is unpredictable.

But the shift in the public’s perception of the Supreme Court’s place in the UK’s constitutional landscape might be more long-lasting.

On Oct. 1, the court will mark its 10th birthday. In 2009, judicial authority was transferred from the Appellate Committee of the House of Lords, which previously acted as the UK’s highest appeal court. The move was made in anticipation of new constitutional questions brought about by the UK’s devolution settlement, the introduction of human-rights law and the growth in judicial review cases since the 1970s.

But the Brexit crisis is pushing the court onto center stage. While judicial scrutiny of the use of executive powers is in no sense new, there's little precedent for a court to be asked to review a prime minister's central policy at a moment of acute national crisis.

This is the third Brexit challenge to be heard by the courts.

Gina Miller, one of the claimants in this week’s prorogation case, successfully argued there in 2017 that the prime minister couldn’t launch the Brexit process without parliament’s approval.

The following year, in a case involving legislation to prepare the UK statute book for Brexit, the court reaffirmed that the Westminster parliament could legislate in areas of law devolved to the Scottish parliament, and that 20-year-old settlement sharing law-making powers with Edinburgh rested only on a convention.

“Brexit has turned out to be this absolute clash of interests in our society, where the precise limits of the constitution really matter because of the extreme disagreements,” Charles Falconer, who as Lord Chancellor oversaw the creation of the court through the Constitutional Reform Act 2005, told MLex.

In contrast to the House of Lords, Supreme Court judges “see themselves much more as an important state player, rather than simply there for error correction,” he said. “It has turned out to be the most brilliant vehicle for resolving these cases, and the effect of that has been to make the judges much more self-confident and bold.”

Twin challenges

The 11 judges must reconcile two dramatically divergent judgments, from two separate systems, on where the edge of the judiciary's reach lies.

In London, the High Court dismissed Miller’s claim that the five-week suspension — or "prorogation" — was a bid to “silence” parliament and allow the government to force a no-deal Brexit.

In a judgment published Sept. 11, it concluded that the use of the royal prerogative to prorogue parliament was “inherently political,” and that the courts lack the tools to weigh whether a five-week suspension was too long. Parliament has carefully set out its relationship with the government, and “the courts should be slow indeed to intrude,” it said.

That position holds even if the claimants were correct in alleging the prorogation was designed for “political advantage” to force through Brexit, the three-judge panel said.

The Court of Session, Scotland's highest court, turned this argument inside-out. Ruling on an appeal brought by lawmaker Joanna Cherry, barrister Jolyon Maugham and more than 70 parliamentarians, it agreed that normally judges would stay out of political terrain.

But in this "extreme" event, it found the prime minister’s advice was justiciable — that is, a matter for a court to determine — precisely because his attempt to “stymie” parliament and mislead about his true motives amounted to an “egregious” misuse of power.

“Procedural maneuvers are the stuff of politics,” wrote Philip Brodie, one of three judges on the case. “However, when the maneuver is quite so blatantly designed ‘to frustrate parliament’ at such a critical juncture in the history of the UK, I consider that the court may legitimately find it unlawful.”

Precedent

Were the Supreme Court to uphold the Cherry decision, it would be a significant development in the understanding of the royal prerogative — the prime minister’s executive powers, which include advising the Queen to prorogue parliament.

The principle that the exercise of the royal prerogative can be subject to judicial review, like any other government action, was established in 1984, in a case concerning GCHQ, the British intelligence agency.

The principle that those powers take second place to any act of act of parliament is much older and was established definitively in the 1920 De Keyser case.

That was the nub of the 2017 Miller case: The court found that the government couldn’t use its prerogative powers to make and break foreign treaties to end EU membership, as it would frustrate certain EU-derived rights enshrined by parliament in domestic law.

What’s new here is that the claimants’ case isn’t that Johnson’s prorogation violates any particular statute — but the very concept of parliamentary sovereignty.

“It’s a bigger statement: that there are certain things in the constitution that we say are fundamental bedrock principles, and that where there is an exercise of executive power with the purpose of interfering with constitutional fundamentals, we can review it,” said Tom Poole, of the London School of Economics. “When you set it against the cases since 1984 and the first Miller case, you see there’s potentially new ground being broken here.”

One possible outcome is that the Supreme Court finds the prime minister acted lawfully, but better defines the limits of the suspension power to prevent future abuse, said Poole, a professor of law specializing in the royal prerogative.

“There is a constitutional test that needs to be articulated here that doesn’t give the wielder of the suspension power carte blanche to do what they want, which would be really dangerous,” he said.

A meddler, or a guardian?

The more fundamental legacy of the Brexit challenges will be the perception — or indeed expectation — that the judiciary, and ultimately the Supreme Court, is an active check on Downing Street and a referee in Westminster’s hottest disputes.

“We’re seeing the UK Supreme Court being asked novel questions, requiring them to grapple with matters that would previously have been resolved through politics and the political conventions of the constitution,” said James Grant, senior lecturer in law at Kings College London. “In that sense, the court is being asked to play a greater role in UK politics — a role which the justices may wish they didn’t have to fulfil.”

Johnson’s supporters have accused the court of stepping out of line.

“Many people are saying that the judges are biased,” energy minister Kwasi Kwarteng said last week following the Scottish decision, in comments that the prime minister’s office disowned. “The judges are getting involved in politics.”

But the Supreme Court’s decision will hinge on whether they conclude the prorogation is, as the High Court concluded, a matter of mere politics — or bites into something more fundamental.

“People are asking what timid judges might do in normal times confronted with questions like this,” said Maugham, Cherry’s co-claimant. “That’s the wrong way of looking at it. The question is what a judge does in a moment of profound constitutional importance.”