If U.K. prime minister Boris Johnson thought he could make his troubles go away by closing Parliament and sending his opponents home for a month, he was sorely mistaken. Not only could the backlash against that power move scupper his “do or die” ambition to pull the U.K. out of the European Union at the end of October, it could also spell the untimely end of his term in office.
On Wednesday, a Scottish appeals court ruled that Johnson’s decision to suspend Parliament for five weeks in the run-up to the October 31 deadline for Brexit was unlawful, because “it was motivated by the improper purpose of stymying Parliament.” This sparked accusations that Johnson lied to the queen in advising her that it was legal to prorogue Parliament at the time — which may not be illegal per se, but certainly isn’t going to boost Johnson’s popularity. When asked on Thursday if he’d misled the monarch, Johnson said, “Absolutely not,” adding, “The High Court in England plainly agrees with us but the Supreme Court will have to decide.”
If the London-based Supreme Court agrees with the Scottish court’s controversial ruling, Parliament could be reopened next week, which would put severe pressure on Johnson to resign. MPs and organizations had filed multiple lawsuits challenging Johnson’s decision late last month to suspend Parliament, which even many of his fellow Conservatives decried as a constitutional affront. Other judges in England and Wales ruled that Johnson’s government had acted within its rights in doing so, while a lower court judge in Scotland had deemed the matter nonjusticiable — i.e., not for the courts to decide.
Wednesday’s ruling came from a panel of judges hearing an appeal of that judge’s ruling. The judges stated that a prime minister asking to prorogue Parliament would not normally be a matter for judicial review, but “it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive.” The circumstances and evidence suggested that Johnson was suspending Parliament to hinder further debate over Brexit and to move ahead with preparations for a no-deal Brexit without legislative interference, which the judges called “an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities.”
In a hearing next Tuesday, the Supreme Court will hear the government’s appeal of this ruling and attempt to reconcile the conflicting opinions from the English, Welsh, and Scottish courts. Wednesday’s ruling did not include an injunction forcing the government to recall Parliament, so it remains prorogued at least until the high court rules. Johnson’s opponents leveraged the ruling to urge the prime minister to reopen Parliament immediately, but Johnson responded that he would not, unless the Supreme Court ordered him to.
In normal times, prorogation is a standard procedure the U.K. government uses to present a new legislative agenda roughly once a year. These are not normal times, however, and opposition lawmakers had reason to suspect that Johnson was up to something when he called for the House of Commons to adjourn for the next five weeks. The house passed a bill last Wednesday that will force the government to secure parliamentary approval for a no-deal Brexit by October 19, or else request another extension of the deadline from the E.U. — something Johnson has adamantly sworn he would not do. They also shot down a proposal from the government to hold snap elections in mid-October, refusing to schedule polls until they have prevented Johnson from crashing the country out of the E.U. with no deal.
The urgency of preventing a no-deal Brexit was underscored on Wednesday when MPs forced the government to publish secret documents detailing its contingency plans for a crashout. The plan, dubbed Operation Yellowhammer, envisions a worst-case scenario, including more than three months of disruption in shipping across the border with France, the return of a hard border in Ireland, shortages of medical supplies, increased food and fuel prices, and an increase in public disorder. For all that, a recent YouGov poll found that half of Leave voters and half of Conservatives want Johnson to break the law and refuse to ask for another Brexit extension.
The government insists that proroguing Parliament is entirely legitimate at this point, noting that the current session of Parliament has been the longest in centuries, but that MPs have made little progress toward finding solutions to Brexit or anything else. On the other hand, the five-week suspension Johnson has ordered is the longest since World War II, and, having lost his majority in the Commons to a wave of Conservative defections last week, he has no hope of advancing whatever new domestic agenda he intends to put forth next month. The only logical reason for suspending Parliament now is to run out the clock and force a no-deal Brexit by denying lawmakers a chance to stop it.
That Wednesday’s ruling came out of Scotland is significant. Scotland has its own legal system, separate and independent from that of England and Wales, as does Northern Ireland (where the high court is expected to rule on yet another challenge to the prorogation today). Each U.K. jurisdiction carries equal weight, with the Supreme Court weighing in on cases like this one when they conflict. According to the Guardian, Scots Law “gives greater weight to the principle that monarchs are answerable to parliament than do the English courts.”
Downing Street has heavily insinuated that Wednesday’s ruling was a politically motivated decision by activist judges, claiming that the prime minister’s enemies took their case to Edinburgh knowing they were more likely to obtain such a ruling there. Witness this Trumpesque non-statement from Kwasi Kwarteng, the junior business minister: “Many people are saying — I’m not saying this — that the judges are biased, that the judges are getting involved in politics. I’m just saying what people are saying.”
Needless to say, these remarks questioning the integrity of the Scottish judiciary did not go over well in Scotland. The Scottish National Party pounced with an ad saying, “The Tories at Westminster are effectively saying: Scottish democracy must be ignored. Scots Law must be ignored.” The SNP will surely make more hay out of this the next time they agitate for independence, and if Scotland finally ends up leaving the U.K. as a result of Brexit, this week’s events will likely be remembered as one step in that direction.
The ruling is inescapably political, of course, but more fundamentally constitutional, as the judges were persuaded by the argument that in proroguing Parliament, Johnson was attempting to sidestep legislative oversight of his handling of Brexit. That’s why the prime minister has much bigger things to worry about than becoming even less popular than he already is in Scotland, which voted overwhelmingly against Brexit.
Union leaders are calling for him to be thrown in jail; one warned the PM against traveling to Scotland, where he could be subjected to a citizen’s arrest. That probably won’t happen, but if the Supreme Court agrees with the Scots that Johnson misled the queen in advising her that it was legal to prorogue Parliament at this time, calls for his resignation would mount swiftly. Dominic Grieve, the former attorney general whom Johnson kicked out of the Conservative Party last week, said Johnson would find his position “untenable” in that case, as “every member that believes in our constitution would simply say, it’s over.”