Could MPs be recalled if UK Supreme Court rules parliament's suspension was illegal?

A woman protests outside the Supreme Court of the United Kingdom against Prime Minister Boris Johnson's decision to prorogue parliament, in London, Britain September 17, 2019. - Copyright REUTERS/Toby Melville

By Orlando Crowcroft

Published on 23/09/2019 - 07:24•Updated 24/09/2019 - 08:01

Comments

Britain's Supreme Court is due to rule on Boris Johnson's suspension of parliament on Tuesday.

Britain’s Supreme Court is due to decide this Tuesday whether Boris Johnson acted unlawfully when he suspended — or "prorogued" — parliament for five crucial weeks in the run-up to the October 31 deadline for the UK to leave the European Union.

But the UK’s top judges actually have two questions to decide on after hearing from government lawyers and their opponents last week - the legality of Johnson’s act is the second, the first is whether the court has the authority to rule on the issue at all.

Sir James Eadie, a lawyer for Johnson, claimed last week that prorogation is a matter of "high policy" which is “non-justiciable”, meaning it was not something judges could rule on.

Eadie pointed out that while parliament had acted to prevent a no-deal Brexit bypassing the so-called Benn Bill with the help of 20 rebels from within Johnson’s own party, it had not brought a vote of no confidence in the government, which would have stopped prorogation.

That was its choice, and it is not for judges to crash in with their briefs and box files and mess around with parliamentary procedure, Eadie said (although not in those words).

Next moves

It remains to be seen whether Lords will agree with Eadie on the limitations of their power. Indeed, Lord Wilson, one of the judges, retorted by asking whether there was anybody better placed to judge on whether a prorogation of parliament was illegal than them.

But if they do agree, then Johnson’s problem goes away - or at least, one of them does.

The opposition will still shout about a coup, but by the time parliament returns on October 14 they will have bigger things to worry about than procedure - not least how to prevent Johnson defying the Benn Bill and pulling the UK out of the EU without a deal on October 31.

Similarly, if the court decides that it is within its authority to rule on the legality of the suspension of parliament and that Johnson did not act illegally.

Johnson’s actions will certainly still be seen as cynical, but cynicism is not — thankfully for MPs on both sides of the House of Commons — a crime.

The third scenario is that the judges side with Johnson’s critics, which include anti-Brexit campaigners Gina Miller and former prime minister John Major, and rule that they do have the authority to rule whether the suspension was illegal — and that it was in fact illegal.

That is when things get really interesting.

A second prorogation?

There has been speculation that, in the event of this, parliament could be recalled by the speaker of the house, John Bercow. There has even been speculation that Johnson could recall parliament only to then prorogue it a second time.

It has been established for at least the last three weeks that events in British politics over Brexit are unprecedented, but the prospect of the country’s prime minister being forced to recall parliament by the courts pushes the country even further into uncharted waters.

What happens next, truly, is anyone’s guess.

“This is an extraordinary moment in British politics - I don’t remember anything like this,” says Daniel Gover, a lecturer in British Politics at the Queen Mary University of London.

“If the courts did decide that it is unlawful it would be very serious — I think — for the government and in normal times it would be very embarrassing.”

But these are not normal times, and despite the possibility that the prime minister broke the law or that he lied to the Queen over his reasons for suspending parliament, Johnson and his government may wager that delivering Brexit will atone for all their real or imagined sins.

“It is possible that this will bolster a narrative that is useful for the Conservative Party: that they are trying to deliver Brexit and being frustrated by the establishment.

“It may well be that questions of whether Boris Johnson misled the Queen or prorogued parliament unlawfully — that the details — are not the things that get picked up on. What this means constitutionally and politically are different questions.”

Recent polling does suggest that Johnson's popularity with the public has only increased the more outrageous his behaviour in parliament. On Saturday, the latest poll for the Observer newspaper had Johnson 15 points clear of Labour leader Jeremy Corbyn.