After three days debating whether Boris Johnson’s suspension of Parliament was lawful, the U.K. Supreme Court openly struggled with how they might deal with it.
Several judges peppered David Pannick, a lawyer opposed to the so-called prorogation, with questions about the limits of their power, and those of the country’s unwritten constitution. Brenda Hale, the court’s president, promised a ruling as quickly as “humanly” possible, but also acknowledged that the court was entering uncharted areas.
“None of this easy,” Hale cautioned at the end of Thursday’s hearing. “We will have to decide what the answer is and we will have to decide one way or the other what the consequences are.”
Judges devoted the last 10 minutes of the hearing to a discussion about what orders they could possibly make. Johnson might be forced to recall Parliament, giving opponents of a no-deal Brexit more room to try to thwart his promise to leave the
European Union with or without a divorce agreement on Oct. 31.
Hale, who will retire from the court next year, said the 11-judge panel “hoped” to have a decision early next week.
The case not only threatens to undermine Johnson’s position as prime minister, but could also curtail the British executive’s longstanding power over when the legislature sits. Government lawyers urged the judges to avoid the “political minefield” of the case, saying they don’t have jurisdiction to decide when Parliament meets. The opposition argued that Johnson’s action is blocking lawmakers from overseeing his administration at a crucial point.
If the Supreme Court “really gets into the whole business of ordering when or when not parliament should be sitting, that’s a whole new territory for the court,” said Shubhankar Dam, a public law professor at the University of Portsmouth.
A decision against the government would pose a quandary about what guidance or orders they can provide to Parliament. Pannick, the lawyer representing businesswoman Gina Miller, said they should give a simple declaration that the decision was unlawful and then let parliament get on with the next steps without any more direction.
Miller and the Scottish opponents in the case “are inviting the courts into forbidden territory and one that is essentially a minefield, an ill-defined minefield,” Richard Keen, a government lawyer, said in court Thursday.
The government said it would abide by any decision the court made but that didn’t necessarily rule out going back to the Queen to ask her to suspend Parliament once again. Pannick said it was unacceptable for Johnson to prevent scrutiny at a time of such uncertainty.
“The executive, the junior partner, cannot claim a legally unfettered power to close down the senior partner,” he said as he closed his arguments.
As the judges retreated for the deliberations, Hale once again underlined the point that the Supreme Court is not ruling on Brexit.
“This case is not about when and on what terms the United Kingdom leaves the European Union,” Hale said. “The result of this case will not determine that.”