Prime Minister Boris Johnson’s decision to prorogue Parliament last week has been appealed as an executive abuse of power. The hearing by the Supreme Court, the U.K.’s highest court of law comes a week following the Scottish High Court’s ruling that the prorogation was indeed illegal. As it currently stands, the term of prorogation is set to last 5 weeks, leaving only 17 days before the set deadline for Britain’s exit from the EU on October 31st.
This is the second time the young Supreme Court (only established in 2009) has been recalled to the benches with all 11 judges over a Brexit-related matter, the first provoking the Daily Mail’s controversial ‘Enemies of the People’ headline. This hearing is proving no less divisive. The site of the Royal Courts of Justice in London has attracted mobs of pro and anti-Brexit demonstrators and the usually scarce viewership Supreme Court’s broadcast has spiked from an average of roughly 200,000 to over 4 million in the last two days of the hearing.
The appeal challenges not only Johnson’s right to suspend parliament, but also indirectly questions the robustness of the U.K.’s unwritten constitution. Under oath, British judges are to rule “without fear of favour, affectation or ill will.” however, the political nature of the prorogation’s calling and the political effect of a ruling wherein the executive power of Johnson’s Government is checked, has put Britain’s ancient system under heavy strain.
Catherine Barnard, Professor of Law at Cambridge University highlighted that traditionally “courts take a backseat in these sorts of cases” in a bid to steer clear of politics as they are appointment by the crown rather than democratic election. However she also weighs the fact that in British politics “there should be no power that is unlimited” in reference to the Government’s powers over Parliament.
The political shock is not limited to the prorogation being found illegal either. Should the case be dropped, an already embittered Scottish National Party (SNP) which has a majority in Holyrood, the devolved parliament of Scotland, would no doubt seize the opportunity to further highlight the divergence of Westminster from Scottish politics. Despite the 52% vote for “Leave” in the 2016 EU Referendum, in Scotland 62% of the votes were “Remain”. This added to a conflicting verdict on the legality of Parliament’s prorogation would add to latent fears that the Union of the United Kingdom is threatened by Brexit.
Lord Falconer (a member of the U.K.’s upper house the House of Lords who oversaw the creation of the Supreme Court in 2009) accepts that the Supreme Court is in unprecedented circumstances. However in an interview on the BBC’s ‘Newsnight’ he expressed the courts are serving their intended role to broker a legal settlement in times of friction between parliament and the government where key questions of law are raised – a friction in which the “courts are the only people who can solve”.
The verdict of the hearing is estimated to be delivered by the end of the week, perhaps as early Thursday morning.