September 16, 2019

Boris Johnson's No-Deal Brexit Faces Further Setbacks Amidst Judicial Decisions

  • Analysis

By: Logan McRoberts

Some people may have noticed important international news weaved into the busy U.S. headlines last week. British Prime Minister Boris Johnson moved to suspend – ‘prorogue’ being the technical term – parliament until October 14 – an unprecedented move given the circumstances the United Kingdom finds itself in with a deadline of October 31, at which time it’s due to leave the European Union.

On September 11, the highest court in Scotland ruled the move to be unconstitutional.

The Scottish court’s decision was not with respect to whether the Prime Minister lied to the Queen in his explanation to the Monarch of the reasons for parliament’s suspension (historically, a technical requirement). Despite those accusations being thrown around, what the Scottish court actually decided on was ultimately a determination that a five-week suspension was an active attempt to undermine what the United Kingdom’s constitution underlines as the sovereign right of parliament – parliamentary sovereignty – to debate legislative matters. The normal amount of time for a suspension of parliament is one week. That the suspension not only would have the effect of stymieing parliament’s right and duty, but that such an effect was the intention of the Prime Minister, was the reason for the court’s decision.

Another court ruling in the United Kingdom from Northern Ireland came on September 12, dismissing a claim that a no-deal Brexit would breach the Good Friday Agreement. While the specific historical and technical details relating to this ruling are a separate issue, headlines about the decision have made the mess all the trickier to wrap one’s head around.

The Northern Ireland court’s decision addressed whether the United Kingdom’s departure from the European Union would violate or undermine the terms established under the Good Friday Agreement.

Between alleged lying and seemingly contrary judicial rulings, if you’re just reading the swirling headlines this week, you’re likely as confused as you should be.

What’s important to remember is that while the two courts seem to have reached different conclusions, they were not deliberating about the same subject matter. The Scottish court’s decision was with respect to a sovereign right bestowed upon parliament – not whether a peace treaty would be violated because of a no-deal Brexit.

The Scottish court’s decision touched at the heart of what Brexit was paraded around to be back when the actual referendum was held. In 2016, those in favor of leaving the European Union touted Brexit as the British being able to free themselves of the constraints placed by the broader European community via the European Union. It was supposed to be a liberation of the nation’s sovereignty and democratic liberty from the chains of an international legislating body.

The apparent irony, as far as the highest court in Scotland is concerned, is that Boris Johnson’s method of following through on the 2016 referendum involved undermining basic democratic principles and sources of sovereignty in order to do so.

What happens next is anyone’s guess, though there are two clear options. One option would be for the Prime Minister to try suspending (proroguing) parliament – again. Only this time, he’ll suspend it for the standard amount of time of one week. While five weeks would have been more beneficial for his agenda by avoiding debate about alternatives to a no-deal Brexit, one week would have a similar effect with the added benefit of not being likely to get shot down in the courts.

There’s also the option of letting parliament resume with no suspension at all. This option seems less likely and less dramatic, but is nonetheless on the table.

While Johnson decides on how to ultimately proceed, parliament has indeed resumed, and whether Johnson will be able to scrape by to his October 31 deadline remains to be seen.

Logan McRoberts is a policy analyst and freelance writer in Washington, DC. Contact him at [email protected]om. 

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