The Washington Post - 18.09.2019

WEDNESDAY, SEPTEMBER 18 , 2019. THE WASHINGTON POST EZ RE A

BY KARLA ADAM

AND WILLIAM BOOTH

london — Prime Minister Boris
Johnson was accused Tuesday of
“unlawful abuse of power” in a
high-profile court case about who
runs the show in Britain: Parlia-
ment or the prime minister.
The Supreme Court is hearing
challenges to Johnson’s conten-
tious decision to suspend Parlia-
ment for five weeks — a n unusual-
ly long break, coming just before
Britain is scheduled to leave the
European Union on Oct. 31.
Petitioners accuse Johnson of
trying to curtail scrutiny by law-
makers. A Scottish court
agreed, ruling last week that the
five-week suspension was an
“egregious” overreach, designed
not as a brief pause between
parliamentary sessions, as is cus-
tomary, b ut to foil the legislature’s
ability to shape Brexit plans.
An English court, however, dis-
missed a related case, determin-
ing that the issue was a political
matter and not one for courts to
decide.
The Supreme Court is hearing
both cases on appeal.
In her introductory remarks,
Supreme Court President Brenda
Hale said the conflicting rulings
demonstrate “that this is a seri-
ous and difficult question of law.”
Reflecting that significance,
the formally out-of-session Su-
preme Court has been summoned
for an emergency hearing, and
the number of judges has been
increased from the usual five or
seven to 11. A total of 12 judges sit
on the court, but they hear cases
in odd numbers to avoid ties.
The court proceedings — being
streamed live over three days —
could have far-reaching implica-
tions for the balance of power
between the legislature, the exec-
utive and the judiciary functions.
The proceedings could also drag
into play the role of the queen.
And they could impact the direc-
tion of Brexit.
Hale emphasized, though, that
the court was not seeking to de-
termine “when and how the Unit-
ed Kingdom leaves the European
Union.”
Dozens of protesters gathered
outside the court, holding aloft
placards that read “Don’t Silence
our MPs” and “They Misled the
Queen.”

In court on Tuesday, the gov-

ernment’s lawyer, Richard Keen,

pointed to several previous occa-

sions when Parliament was sus-

pended for political purposes, in-

cluding after the outbreak of

World War I and at the beginning

of the Great Depression. He ar-

gued that the executive was “enti-

tled to do so” and that such sus-

pensions, as political matters,

“could not be declared unlawful

by the courts.”

The judges pressed Keen on

why the suspension had to last as

long as five weeks. He r eplied that

the government was trying to

accommodate annual political

party conferences, and he sug-

gested that lawmakers were los-

ing only seven sitting days com-

pared with their typical fall

schedule.

David Pannick, a lawyer argu-

ing the English case, said it was

not proper for the government to

suspend Parliament for such an

“exceptionally long” time, frus-

trating the ability of the legisla-

ture to scrutinize the executive,

legislate and hold debates.

“Under our system of constitu-

tional law, Parliament is sover-

eign, and the executive is ac-

countable to Parliament,” Pan-

nick said. For the executive to

impose a suspension “to evade

control by Parliament stands the

basic principles of constitutional

law on their head.”

A judge suggested that Parlia-

ment could have held the govern-

ment to account by calling a no-

confidence vote.

The lawyer replied that Parlia-

ment wanting, or not wanting, to

hold a no-confidence vote was a

separate issue from the legality of

what the prime minister did.

Legal analysts said it was too

early to say which way the court

might go.

“It’s such unchartered terri-

tory, there’s such strong argu-

ments on both sides,” said Joelle

Grogan, a senior lecturer in law at

Middlesex University. “ If I had tea

leaves, I would not be able to read

them.”

Asked who had the better day,

she said Pannick had the “harder

argument” t o make, but Keen had

“more difficult questions and

challenges from the bench.”

Pannick is representing Gina

Miller, a business executive and

transparency activist. Miller and

her legal team won a similarly

momentous 20 17 case in

which the high court ruled the

government must get Parlia-

ment’s approval before “invoking

Article 50” and starting the

countdown to Brexit.

Writing in the Independent

newspaper on Monday, Miller ar-

gued that the current case “is so

much more important even than

Brexit. It is about how we are

governed, about preserving our

ancient democratic freedoms and

trying at a ll costs to stop a danger-

ous precedent.”

Miller charged Johnson with

wanting to “put himself above the

law” and suggested that if he’s

allowed to have his way, future

prime ministers could bring back

the poll tax or reintroduce the

death penalty without any input

from lawmakers.

Johnson, in an interview with

the BBC on Monday, disparaged

“all this mumbo jumbo about how

Parliament is being deprived the

opportunity to scrutinize Brexit.”

“What a load of claptrap,” he

said, arguing that the suspension

was necessary to “set our ambi-

tious agenda for the country.”

Johnson has denied a further

contention of the Scottish court:

that his government was mislead-

ing about its motivations for the

suspension, including perhaps to

the monarch.

“A bsolutely not,” the prime

minister responded last week to a

reporter who asked if he had lied

to Queen Elizabeth II.

The queen must approve any

parliamentary suspension, but by

custom she must abide by the

advice of her prime minister.

Parliament was shut down in

the wee hours of Sept. 10, follow-

ing chaotic scenes on the floor of

the House of Commons. It is

scheduled to remain shuttered

until Oct. 14, unless the court

rules against Johnson and orders

lawmakers back sooner.

Britain’s Supreme Court is no-

where near as interventionist as

the Supreme Court in the United

States. But this case is testing the

boundaries of the executive and

where the courts can weigh in.

“This is really Constitutional

Law 101,” said Catherine Barnard,

a professor of European law at

Cambridge University. “ First-year

constitutional law students com-

ing in don’t need to read text-

books, they just need to read

Twitter.”

Britain doesn’t have a written

constitution. It relies on the rule

of law, p recedent and convention.

And Johnson is a convention-

busting prime minister.

“It’s a fight almost to the death

between the executive and the

legislature,” said Jo Maugham, a

lawyer and one of the driving

forces in the Scotland case

brought by 78 lawmakers.

Maugham voiced fears about

another possible suspension

shortly after Parliament returns

on Oct. 14. In theory, he said,

Johnson could suspend Parlia-

ment for the entire term and

“govern untrammeled by the leg-

islature.”

“The prorogation is unusual, so

we are seeing unusual litigation

flowing from it,” said Raphael

Hogarth, a scholar with the Insti-

tute for Government think tank.

“I think it’s inevitable: Once no-

body feels like they know the

rules of the game in Westminster

anymore they will start turning to

the courts.”

[email protected]

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U.K. Supreme Court weighs whether Johnson illegally suspended Parliament

MATT DUNHAM/ASSOCIATED PRESS

Protesters hold banners outside the Supreme Court of the United Kingdom on Tuesday. Two lower courts issued contradictory rulings on

the suspension, and the high court’s decision on those appeals could have far-reaching implications for the nation’s balance of power.

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