At any time starting the end of Thursday, the Supreme Court of the United Kingdom will deliver its judgment on an extraordinary legal question: Did Prime Minister Boris Johnson "lie" to the Queen? And, if he did, can the courts do anything about it?
The 11 justices of the Supreme Court have been sitting, for the first time ever, outside the court’s normal legal terms, to decide what the court’s president, Lady Hale, said were "serious and difficult questions" on which "three senior judges in Scotland have reached a different conclusion to three senior judges in England and Wales". The hearings, scheduled to last three days, began on Tuesday (September 17) and will go on until Thursday.
The matter stemmed from the decision made by Johnson to ask the Queen to prorogue — basically suspend — Parliament for an unusually long time, a move that a court in Edinburgh last week ruled was illegal.
The contention of Johnson’s opponents is that while the PM told the Queen, and the British public at large, that the prorogation he sought was routine, his real motive was to "prevent lawmakers from interfering" with the way that he wants to go about Brexit, the process of Britain’s exit from the European Union (EU).
An unusual prorogation
Proroguing of Britain’s Parliament is a routine process — every year, the government, led by the Prime Minister, requests the Queen, the titular Head of State, to suspend Parliament. All legislative business is paused during this time, although all MPs continue to hold their positions and seats. Parliament opens again after a formal Queen’s Speech, which lists the government’s plans and agenda for the coming year.
(In India, the Constitution empowers the President to prorogue Parliament. An FAQ on the Lok Sabha website defines ‘prorogation’ as "the termination of a Session of the House by an order made by the President under Article 85(2)(a) of the Constitution. The Prorogation of the House may take place any time, even while the House is sitting. However, usually, prorogation follows the adjournment of the sitting of the House sine die".)
This time, two things happened differently.
First, while prorogation is usually for a few days, the Prime Minister asked for a nearly five-week suspension, from September 10 until October 13.
Second was the timing: Britain is in the middle of a frantic, chaotic Brexit, and suspending Parliament at this time means MPs have very little time to influence the government’s actions on something this fundamental and farreaching, especially when most of them do not agree with the way the Prime Minister is going about it. The current deadline for Britain to leave the EU is October 31, but a formal agreement governing the exit is yet to be reached. Following the prorogation, MPs will not return to the House of Commons until as late as October 14.
A large number of MPs are dead against a "no deal Brexit", and want the October 31 deadline extended if a deal isn’t arrived at by then. Prime Minister Johnson, meanwhile, has asserted he would rather be "dead in a ditch" than ask the EU for an extension.
In the short time that he has been PM, Johnson has faced major roadblocks in Parliament over how he would like to conduct Brexit negotiations — in fact, a law passed recently has made it illegal for him to leave the EU without a deal.
In such a scenario, the PM’s decision to suspend Parliament has attracted fierce criticism and legal challenge.
Johnson asked for a prorogation in the last week of August. The Monarch, who acts on the advice of her Head of Government, assented to it. Johnson’s move was challenged in court.
On September 6, a Divisional Court in London dismissed the case on grounds of non-justiciability — essentially ruling that the Prime Minister asking for Parliament to be prorogued is a political rather than a legal matter, in which the court could not interfere.
However, Scotland’s court held a different view. On September 11, the Court of Sessions in Edinburgh said the power to prorogue Parliament was subject to legal rules — it has to be used for "proper purposes", and if that turns out to be not the case, the court can intervene.
Terming Johnson’s move as illegal, the court said that he prorogued Parliament "in a clandestine manner", for the "improper purpose" of "stymiing any further legislation regarding Brexit".
The Scottish court’s judgment — which came on a plea by 75 MPs from different parties — was challenged by the government. And the London court’s ruling was challenged by the petitioners, former Conservative Prime Minister Sir John Major and anti-Brexit campaigner and businesswoman Gina Miller.
The appeals came before the Supreme Court on September 17.
The case is straining at multiple levels how Britain’s institutions of power interact with each other — Parliament and government, government and courts, and even the government and the Monarchy.
Rhetoric from the Prime Minister’s camp has been seeking to paint lawmakers and even judges as the "elite class" seeking to prevent Brexit.
Johnson has been criticised as a Head of Government who is trying to hobble Parliament from scrutinising and questioning his work. This goes against the grain of British politics, where efforts have always been to make the Prime Minister more accountable to the House.
In 2011, for example, a law was passed to bar Prime Ministers from calling elections whenever they wished. This has scuttled Johnson’s attempts to call for a snap election twice over the past few weeks.
In 2017, a court had ruled that the government needed the approval of MPs to trigger Britain’s withdrawal from the EU. Now, courts have yet again been asked to decide to what extent the government could be allowed to "stymie parliamentary scrutiny".
The PM has been trying to project himself as a lone Brexit warrior against a recalcitrant Parliament. After his own party MPs voted against him to ensure Britain does not leave the EU without a deal, Johnson said: "Let there be no doubt about the consequences of this vote tonight. It means that Parliament is on the brink of wrecking any deal we might be able to strike in Brussels".
He said a deal would "force [him] to go to Brussels and beg [for] an extension". "It would enable our friends in Brussels to dictate the terms of the negotiation." Also, after the Scottish court’s ruling on the prorogation, Conservative MPs have been taking potshots at the judges. A pro-Brexit government minister, Kwasi Kwarteng, said during a television interview to the BBC: "I’m not saying this, but, many people… are saying that the judges are biased." Another prominent Brexiteer, Andrew Bridgen, criticised the ruling of the Scottish court saying the "liberal elite" were "marshalling their forces" to defeat "the democratic decision of the people".
The controversy has pulled the Queen into the Brexit mess, something the Palace had carefully avoided so far. It is the Queen who prorogues Parliament, but she acts on the advice of the Prime Minister.
Asked whether he had lied to the Monarch about the reasons for the prorogation, Prime Minister Johnson has said he "absolutely" had not. "The High Court in England plainly agrees with us, but the Supreme Court will have to decide," he has been quoted as saying.
But the case has led to questions over whether the Queen should use her "discretion" in some cases, in order to avoid being "misled" by the PM. However, the idea of the Monarch overruling the elected Prime Minister would seem fundamentally antithetical to British parliamentary democracy.
The Supreme Court ruling is likely to have a lasting impact on the working of British institutions, and the balance of power among them.