All Hale the UK Supreme Court: How Its Groundbreaking Ruling Affects Brexit

In an extraordinary judgment delivered by Lady Hale, 11 justices of the Supreme Court of the United Kingdom ruled unanimously on September 24 that the suspension – or “prorogation” – of Parliament last month was “unlawful, null and of no effect” [1]. The decision prompts at least two important questions: Does it show the politicization of the UK Supreme Court, and does it mark a turning point in Brexit?

A Brief History. The UK Supreme Court is a relatively new creation, established in 2009 to replace the judicial function of the House of Lords as the nation’s highest appellate court. The court has generally been viewed as a less political institution compared with its U.S. counterpart:

  • Appointment Process: UK Supreme Court justices are technically appointed by the Queen, based upon the recommendation of the prime minister. However, the prime minister is required to follow the recommendation of an independent special selection commission. This differs from the American appointment process, which grants the president broader discretion in nominating a Supreme Court justice (with the advice and consent of the Senate), resulting in more politically inspired judicial nominations.
  • Scope: The UK does not have a written constitution and adheres to the doctrine of parliamentary sovereignty, meaning the UK Supreme Court cannot overturn any primary legislation passed by Parliament [2]. By contrast, the U.S. Supreme Court is able to strike down congressional legislation that violates the written U.S. Constitution, resulting in U.S. Supreme Court involvement in many political decisions.

No Reason to Prorogue: To briefly recap, in August 2019, Prime Minister Boris Johnson prorogued Parliament for a period of approximately five weeks – from early September to October 14. This was controversial as one of the longest prorogations ever, with critics arguing that its purpose was to thwart any parliamentary opposition to the government’s Brexit policy prior to the EU Council meeting of October 17-18 and the ultimate Brexit deadline of October 31, 2019.

The decision that it was within the UK Supreme Court’s remit to declare whether the prorogation of Parliament was legal – and the court’s ultimate conclusion that the September-October 2019 prorogation was unlawful and void – is undoubtedly groundbreaking. The power to prorogue Parliament remains a prerogative power (i.e. a power nominally exercised by the Queen, based on advice from the prime minister), but requires reasonable justification and is subject to increased parliamentary scrutiny. The immediate impact of the ruling is that Parliament has been reconvened, putting increased pressure on Boris Johnson to renegotiate a deal with the EU or to request a further Brexit delay rather than to allow a no-deal Brexit.

A Political Court?  Precedent has now been set for the Supreme Court to wade into a dispute between the prime minister’s government and Parliament, a development that potentially politicizes the UK Supreme Court. The fact the decision was unanimous makes it all the more powerful. Although Lady Hale, president of the Supreme Court, declared the that issue of prorogation arose “in circumstances never arisen before and [that] are unlikely to ever arise again” [3], it is unlikely this will be a one-off ruling on political matters by the Supreme Court.

Impact on Brexit. Ultimately, the Brexit stalemate continues. Prime Minister Johnson’s position remains weak, as he fails to command a majority in the House of Commons, cannot dodge attacks from his parliamentary opposition, and may face a vote of no confidence. However, there remains a dire lack of a cohesive opposition and coherent opposition policy. Indeed, the only Brexit policy that seemingly commands a majority in Parliament is to request further delay – in direct opposition to Johnson’s stance that the UK must leave the EU on October 31, 2019. Although the UK Supreme Court decision is certainly momentous, it resolves nothing. Expect more Brexit and political chaos in the weeks to come.

ENDNOTES

[1] R (on the application of Miller) v. The Prime Minister; Cherry and others v. Advocate General for Scotland [2019] UKSC 41, para 69.

[2] Note that the UK Supreme Court can overturn secondary legislation passed by Parliament if it is outside the scope of the primary legislation or declare legislation incompatible with the European Convention of Human Rights

[3] R (on the application of Miller) v. The Prime Minister; Cherry and others v. Advocate General for Scotland [2019] UKSC 41, para 1.

This post comes to us from Amy Hutchings, special Brexit columnist for the CLS Blue Sky Blog. She previously worked as a corporate / M&A associate at Slaughter and May in London and as a foreign legal consultant in the M&A group at White & Case in New York. She received her LL.M. in 2019 from Columbia Law School, where she was a Harlan Fiske Stone Scholar.

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