Britain’s legislature, tired of gnawing on the executive branch, has swallowed it instead. Where the country and Brexit go next is anyone’s guess.
In late August, Prime Minister Boris Johnson met with Queen Elizabeth II and advised her to prorogue Parliament between mid September and mid October. The monarch agreed, as she was bound to do, and the parliamentary session concluded. After the period of prorogation concluded, a new parliamentary session was to begin on October 14 with a Queen’s Speech, in which Johnson would outline his legislative agenda to Parliament. But on Tuesday, the U.K. Supreme Court decided unanimously that Johnson’s prorogation had been unlawful, rendering it void and propelling Britain further into a constitutional crisis.
In staunch opposition to a government without a majority, anti-Brexit MPs had two alternatives to relying on the Supreme Court’s intervention. They could, and did, pass legislation in the time allowed forcing Johnson to ask Brussels for an extension of the Brexit deadline. Or they could bring down the government, which would have dissolved Parliament and brought about a general election. Either would have been more constitutionally appropriate than what has just occurred.
Speaking in the context of American law, the late Justice Antonin Scalia compared judicial activism to an old commercial for Prego sauce. “Does it have oregano in it? It’s in there! Yeah, but does it have pepper? It’s in there! Does it have olive oil? It’s in there! What about basil? It’s in there!” Never mind text or tradition, was his point, whatever you desire politically — it’s in there!
It is worth remembering that the British constitution is not a legal constitution but a political one. So, is there any political precedent with regards to prorogation? Well, sort of.
Starting in 1628, King Charles I ruled without Parliament for eleven years. (Of course, this eventually touched off a civil war that cost him his head.) Clement Attlee suspended Parliament in 1948 in order to prevent the House of Lords from delaying government business. And in 1997, John Major prorogued Parliament for short-term political gain. (Here, a word of caution: The prorogation of Parliament ought not to be confused with the dissolution of Parliament, which occurs in the run-up to a general election, and which the opposition party, Labour, are curiously reluctant to grant the Johnson government at the moment.)
None of these precedents is quite comparable to the present case, however. Though MPs would still be active in serving their constituents while Parliament was prorogued, they would be unable to debate and pass legislation as the clock ticked down on Brexit, an obvious matter of paramount national concern. As the justices of the Supreme Court put it in their unanimous judgment:
It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”. But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.
That said, while one could argue that Johnson’s prorogation was ipso facto an assault on democratic process, one would be making a political argument rather than a legal one. Yes, the Johnson government had a naked political motivation in proroguing Parliament. But so, too, did the Supreme Court in unanimously deciding that the matter was justiciable, where the English High Court had deemed that it was not.
As one former Supreme Court justice, Lord Jonathan Sumption. told the BBC last month, Johnson’s advice to the Queen was lawful, even if he didn’t personally agree with it:
What is wrong with this decision is not that it’s beyond the powers of the government but that it is being done for a mistaken political motive. I think it is impossible to suggest that the exercise of prerogative powers by ministers cannot be motivated by political considerations. But there are good political considerations and bad ones. The courts are not there to decide what are good political reasons and what are bad political reasons. They’re there to decide what’s lawful.
Again, if anti-Brexit MPs are so upset with the Johnson government, why not follow parliamentary and constitutional procedure and bring it down, so that the country can have a general election? The answer is obvious: They’re worried they’ll lose. As to where it all goes from here: For the British constitution, a new precedent of judicial activism has been set. And for the British government, God only knows.
If this were a game of chess, the king, in check, might resign. It is, of course, not a game of chess, and Johnson is not a king. But all looks dark and hopeless in the land of Brexit nevertheless. The legislature, tired of gnawing on the executive branch, has — with help from the judiciary — swallowed it instead. Where the country goes from here is anyone’s guess.