/What court rulings on parliament suspension mean for Brexit

What court rulings on parliament suspension mean for Brexit

Two of the U.K.’s highest courts issued contradictory rulings Wednesday on Boris Johnson’s decision to suspend parliament.

Campaigners — including dozens of MPs and former Prime Minister John Major — who brought the cases are hoping to force the PM to reopen the doors of the Palace of Westminster. They want parliamentarians to be able to scrutinize the government in the run-up to Brexit, including its strategy for negotiating a deal and its efforts to prepare for a no-deal scenario.

With appeals against both judgments now launched, the U.K.’s Supreme Court will have to adjudicate on whether MPs must be recalled or not. Here’s POLITICO’s guide to what the judgments mean and what happens next:

What did the Scottish court say?

Scotland’s Court of Session, the nation’s highest civil court, ruled that Johnson’s decision to suspend parliament between September 9 and October 14 “was motivated by the improper purpose of stymying Parliament and that it, and what has followed from it, is unlawful.”

The judgment asserts, in effect, that the prime minister misled the queen when advising her to prorogue the legislature. “The Court will accordingly make an Order declaring that the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect,” the judgment reads.

Business owner and anti-Brexit activist Gina Miller (center) speaks outside the High Court, London on September 6, 2019 | Ben Stansall/AFP via Getty Images

Anti-Brexit politicians and campaigners have hailed the ruling as “historic” and are demanding that parliament reconvene within the next 24 hours.

They say Scotland’s Court of Session is the highest court in the U.K. to have ruled on the matter, and that parliament should therefore be able to sit again until such time as the Supreme Court, which is expected to hear the government’s appeal next week, may rule otherwise.

Dominic Grieve, a former Tory MP who now sits as an independent, says that if parliament resumes its activity in the next few hours MPs could go a step further and vote to cancel the three-week parliamentary recess linked to the party conference season. That would give extra time for debate ahead of the crunch European Council summit on October 17 and 18.

So that’s settled?

Not so fast. The government is appealing the Court of Session’s ruling. And it has also been buoyed by a contradictory ruling from the High Court of England and Wales in London. Three judges ruled that the prime minister’s decision to shut down parliament is “political in nature” and not a matter for the courts.

According to the House of Commons speaker’s office, any decision to recall parliament “is a matter for the government.”

The claimants in this case, led by the pro-EU campaigner Gina Miller, had argued that Johnson’s real reason for shutting down parliament was to impede MPs from scrutinizing the government on Brexit.

But the High Court judges said Wednesday that even if that were to be true, it would not be a matter for the courts to rule on. A prime minister can suspend parliament for a number of different reasons, “which may, depending on the facts and circumstances, extend to obtaining a political advantage,” they said, adding that “there is no statute, law or convention which requires parliament to sit in constant session.”

And in the full judgment, they point out that prorogation has been used in the past by governments to gain legislative and hence political advantage. So even if the suspension is in reality designed to advance the government’s political agenda regarding Brexit and not — as ministers say — to give time to prepare a fresh legislative program, it would still be legal. “That is not territory in which a court can enter with judicial review,” the judges argue.

Will parliament be recalled?

Not for now. According to the House of Commons speaker’s office, any decision to recall parliament “is a matter for the government.” But it looks unlikely that the government will act before the Supreme Court rules on the cases — despite pressure from opposition MPs who want to get back to work on the green benches.

A hearing in the Supreme Court that will consider the High Court and Court of Session judgments (and a related case launched in Northern Ireland) is due to take place on September 17.

What does this mean for Brexit?

MPs concerned about the U.K. crashing out of the EU on October 31 without a deal argue that extra parliamentary time is needed in order to prevent that scenario.

Before parliament was suspended on Monday, opposition MPs managed to pass legislation forcing the prime minister to request an extension if no deal has been agreed by October 19. But they worry the government may find a loophole that allows Johnson to drag Britain out of the EU without a deal and against the will of the majority of the House of Commons.

The five-week suspension gives Johnson breathing space and an opportunity to discuss his plans with EU leaders without being held accountable by parliament, where he does not have a majority in either of the chambers.

This article is part of POLITICO’s premium Brexit service for professionals: Brexit Pro. To test our expert policy coverage of the implications and next steps per industry, email pro@politico.eu for a complimentary trial.

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