Boris Johnson's Parliament suspension faces multiple legal challenges

Suspension of Parliament is set to last from Sept 12 until the Queen's Speech on Oct 14, leaving little time for debate before the deadline of Oct 31 for the UK to leave the European Union with or without a deal.
Suspension of Parliament is set to last from Sept 12 until the Queen's Speech on Oct 14, leaving little time for debate before the deadline of Oct 31 for the UK to leave the European Union with or without a deal.PHOTO: EPA-EFE

LONDON (BLOOMBERG) - Legal battles over UK Prime Minister Boris Johnson's plan to suspend Parliament are stacking up, with lawyers in Edinburgh and Belfast attacking the move as an "unprecedented" affront to democracy.

A group of lawmakers asked a Scottish court on Thursday (Aug 29) to issue an emergency injunction to block the so-called prorogation of Parliament. Shutting the legislature would make it harder for lawmakers to thwart a no-deal Brexit. Lawyer Aidan O'Neill told a judge that decision threatens the fabric of the UK's unwritten Constitution.

"The Constitution may not be altered into an arbitrary despotic power by the advice of evil and wicked counsellors," O'Neill said, reading from the Scottish Claim of Right from 1689. "One doesn't wish to make too many parallels with what is happening in the 17th century and yesterday, but sometimes it's just too tempting." The arguments in Edinburgh came as Gina Miller, who won an earlier Brexit lawsuit, prepares for a London hearing as soon as next week. The three cases share a common goal: stopping Johnson's plan to suspend Parliament for almost five weeks ahead of Brexit.

"It's a misuse of prorogative power to bypass Parliament," Miller said. "Nothing like this has ever been tested in court." The length of the suspension appeared to blindside lawmakers with Johnson framing the plan as part of the normal course of government business. It's set to last from Sept 12 until the Queen's Speech on Oct 14, leaving little time for debate before the deadline of Oct 31 for the UK to leave the European Union with or without a deal.

It's accelerated a legal battle over the advice a prime minister can offer the Queen that's likely to end up at the UK's Supreme Court. Yards from the Palace of Westminster in London, the top judges would likely have to cut short their annual summer recess to take the case.

A third challenge, an application for an urgent injunction forcing Johnson to change his advice to the Queen to suspend Parliament, is scheduled to be heard in Belfast on Friday. In that case, Raymond McCord, who's filed multiple cases over the relationship between Brexit and the Good Friday Agreement, argues suspending the legislature breaches the 1998 peace deal, his lawyer Ciaran O'Hare said by e-mail.

"The delicate constitutional balance which has thus far been achieved, will be destroyed," O'Hare said after a preliminary hearing Thursday.

Johnson's supporters say the suspension is only an extra few days, since Parliament was going to be on hold for party conferences anyway. The government will put forward a "very exciting" domestic agenda, and lawmakers will have "ample time" to debate Brexit, Johnson said on Wednesday.

 
 
 

Miller, however, will argue that Johnson is trying to thwart any attempts by lawmakers to block a no-deal Brexit.

"It's actually becoming quite simple to prove" that was the intention, because it's "not possible" to pass laws in the time that'll now be available, she said.

The Scottish case is already under way, after a group of more than 70 British lawmakers sought an urgent court hearing in Edinburgh just hours after the premier said he intends to suspend the legislature, also known as proroguing.

The monarch on Wednesday approved Johnson's request to suspend Parliament. Miller's case aims to force the government to go back to the Queen with a fresh request that would reverse that, she said. As late as Monday this week, she'd received a letter from the government saying her planned lawsuit was pointless because shutting down Parliament was off the table, she said.

The London court has received Miller's application and Miller said she hopes a hearing could be held early next week.

The Scottish lawsuit is led by Jolyon Maugham, an attorney who spearheaded a landmark case that led the EU's top court to rule that Britain can reverse the Brexit process if it chooses to do so before it leaves the bloc.

But some academics said that Maugham's case is not as strong as the previous lawsuits that had, at least temporarily, boosted Brexit opponents.

The most the lawmakers could win is "a declaration that it was illegal" to ask the monarch to suspend Parliament, said Stefan Theil, a postdoctoral research fellow at the University of Oxford's law faculty.

From there, a "remote possibility" exists that the court would force a reversal of Parliament's suspension, Theil said. It could do so by ordering Johnson to make a fresh request of the Queen, this time to either reconvene Parliament or not to suspend it in the first place. But that would be unprecedented, he said.