In an era of fake news, and with British politics increasingly divided into Remainer and Brexiteer tribes who appear to be talking past one another, it is tempting to want to move discussion of the Brexit issue to the calm, reason-based arena of the UK supreme court.
Boris Johnson’s bid to prorogue parliament appeared to do just that. It placed the judges of the supreme court centre-stage in the ongoing Brexit drama.
Yesterday the judges delivered a stinging rebuke to Johnson, unanimously ruling that his attempt to prorogue parliament for five key weeks of the Brexit process was unlawful.
For the second time in the Brexit process, the supreme court stood back from narrower technicalities to give a ruling that reinforced the status of parliament as the key decision-maker in the British constitutional system.
In 2017, the court ruled that the decision to trigger article 50 was of such constitutional importance that only parliament could take it. Yesterday, it ruled that any attempt to use the power to prorogue to frustrate parliament from carrying out its constitutional functions was unlawful.
The supreme court hearing on the challenge to the legality of Johnson’s lengthy prorogation of parliament brought unprecedented attention to the court. Unusually, no fewer than 11 judges were assigned to the case and the livestream of the hearing attracted unprecedented numbers of viewers. There were even “who’s who” pieces in the media on individual judges.
Publicity is a mixed bag for courts. Some judges may be thrilled with the kind of attention that adjudicating on controversial political matters brings. The US supreme court has seen personality cults developed around particular judges, with an opera being written about the relationship between two of them.
But in general, as the politicisation of appointments to the US court shows, fame and controversy can also undermine the authority of courts. In the prorogation case, the president of the UK supreme court, Lady Hale, went out of her way to repeatedly assert that the court was not ruling on the merits of Brexit.
However, there is no doubt that yesterday’s ruling takes the UK court into unprecedentedly political territory. The court did sidestep the potentially difficult question of Johnson’s motivations in seeking a prorogation (after all, every political decision involves calculations of political advantage). Instead it focused on the effects of a lengthy prorogation on parliament’s ability to carry out its functions, noting simply that the court had not had any explanation of why a five-week prorogation was necessary.
Boundaries of power
Although this decision was novel, it was not a massive departure. Though laden with political significance, the decision involved the court ruling on the boundaries of the powers held by the government and parliament – a subject they regularly rule on.
Indeed, despite the brouhaha, the political significance of the decision is much more limited than it might have been. By far the most important impact of Johnson’s failed prorogation gambit was political, not legal.
With all that decision-making power, one thing parliament has failed to do is to actually take a decision
Prorogation was seen as so outrageous that it galvanised the previously divided opposition and ensured they pass legislation requiring Johnson to apply to the EU for an extension of article 50. It was this that foiled Johnson’s bid to leave the union without a deal on October 31st. Even had the government won yesterday, its prorogation gamble had already failed.
Although the ruling is a humiliation for Johnson, it may not significantly worsen his position. Normally, a vote of no confidence is the biggest weapon the Commons can wield. However, with his majority gone, the prime minister is now actively seeking an election. Indeed, the return of parliament may end up highlighting the opposition’s own strange (and arguably unconstitutional) approach of refusing an election when the government has manifestly lost the confidence of the House of Commons.
Holding a referendum on Brexit displaced parliament as the ultimate decision-maker in the British constitution. Since then, however, the Brexit process has seen a significant strengthening of parliament’s power and influence. The supreme court has ensured that parliament, not the executive, gets to decide whether to trigger article 50 and foil the government’s attempt to cut parliament out of the process at a vital juncture in the process.
Taking back control
In addition, in September parliament itself wrested control from the executive and passed legislation that forces an unwilling prime minister to request an extension of article 50 from the EU.
However, with all that decision-making power, one thing parliament has failed to do is to actually take a decision. MPs have voted against every conceivable Brexit option without ever identifying an option they would support. Throughout the Brexit process, MPs from all parties, and from both sides of the Brexit debate, have been either playing for partisan party advantage or failing to engage in sincere attempts to reach a compromise.
Brexit has played havoc with the UK’s constitution. With each side seeing the stakes as unprecedentedly high, a convention-based system that relied on good behaviour has broken down. The supreme court has rightly moved to protect the functioning of the parliamentary system from the constitutional hardball being played by the Johnson government. Having had its powers and role protected in this way, it is now up to parliament to show it is capable of exercising those powers in a useful way.
Ronan McCrea is professor of constitutional and European law at University College London