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When Boris Johnson campaigned for Brexit three years ago, one of his arguments was that it was unfair that British laws were being overturned by European courts. British judges need to reassert their role as arbiters, he argued. Today, the country’s highest court did just that – but may have further inflamed the partisanship that has fueled the fight over Brexit.
The Supreme Court ruled Tuesday that Mr. Johnson, now prime minister, failed to justify his decision last month to suspend Parliament for five weeks. Pro-Brexit campaigners lambasted the court as another establishment tool designed to thwart the 17.4 million people who voted to leave in 2016. In the opposite camp, the ruling reveals a cavalier and contemptuous government that is breaking democratic norms.
“Everybody is now seen as partisan in the Brexit process, that’s one of the dangerous and invidious effects of Brexit,” says Steven Fielding, a professor of political history at the University of Nottingham in England. “It has undermined people’s faith in the institutions that are meant to guarantee law and order and fair play and due process.”
When the United Kingdom’s highest court ended the suspension of Parliament by Prime Minister Boris Johnson Tuesday, its landmark ruling barely mentioned Brexit. Indeed, in a strictly judicial sense, the Supreme Court decision was not about Brexit at all.
But the politics of the fitful effort to extract the U.K. from the European Union has heavily shaped how a divided and dug-in country received the court’s verdict.
Pro-Brexit campaigners lambasted the court as another establishment tool designed to thwart the 17.4 million people who voted to leave in 2016. Angry callers to radio stations invoked the “will of the people” against the court’s legitimacy and questioned the political neutrality of its 11 judges, who unanimously upheld a Scottish court decision that Mr. Johnson had failed to justify his decision last month to suspend Parliament for five weeks.
In the opposite camp, calls for Mr. Johnson to resign are growing and are set to heat up on Wednesday when Parliament returns to the fray. To critics of Brexit, the ruling reveals a cavalier and contemptuous government that is breaking democratic norms, all in the name of delivering on a referendum that was said to be about restoring British sovereignty.
Unlike its counterpart in the United States, the Supreme Court is a new and relatively untested institution, meant to be a check on the bedrock of British democracy: parliamentary sovereignty. That its procedural ruling is facing angry pushback from Brexit supporters, and only grudging consent from Mr. Johnson’s government, could be a sign of a rocky road ahead for it and other democratic institutions.
“Everybody is now seen as partisan in the Brexit process, that’s one of the dangerous and invidious effects of Brexit. It has undermined people’s faith in the institutions that are meant to guarantee law and order and fair play and due process,” says Steven Fielding, a professor of political history at the University of Nottingham in England.
Tuesday’s ruling turned on the workings of one of those institutions. One of the fundamentals of Britain’s uncodified constitution is parliamentary sovereignty; another is the accountability of government to Parliament and in turn to the electorate. By suspending Parliament at a critical juncture in the Brexit process, it was Mr. Johnson who blocked the “will of the people,” says Robert Hazell, a professor of government and the constitution at King’s College London.
“The Supreme Court decision has shown that the system is still working. The court reminded us of the fundamentals of our parliamentary system of government,” he says.
Mr. Johnson insisted that his decision to prorogue, or suspend, Parliament was routine and not a ploy to enable his Brexit policy. He took office in July vowing to take the U.K. out of the EU, with or without a negotiated settlement on trade, citizens’ rights, and intra-Ireland borders.
But prorogation was widely seen as a power play against members of Parliament who had spent their summer recess plotting to thwart a no-deal Brexit on Oct. 31, when the U.K. is due to leave the EU. The government’s own contingency planning for a no-deal scenario warns of social and political unrest amid shortages of food and medicine and a hard brake on trade with the EU.
Campaigners sought judicial review of prorogation in Northern Ireland, England, and Scotland, but only the Scottish court ruled in favor of the petitioners. The government then appealed the Scottish ruling to the Supreme Court in London.
The court ruled Tuesday that while prorogation was an executive power that the prime minister (acting in the name of the monarch) could exercise, it must not infringe on parliamentary democracy. That builds on previous rulings by the 10-year-old Supreme Court and sets a precedent for future judicial reviews of government actions.
The idea that an elected government could be blocked by unelected judges is still an awkward fit for some Britons, says Mr. Hazell, a former civil servant. “In our political culture, including the British media, they are used to the idea of a strong government,” he says.
By contrast, Mr. Johnson has no majority in Parliament and lost a series of votes earlier this month that bound his hands on Brexit. If he fails to reach a negotiated deal with the EU by mid-October, he is required, by law, to ask for an extension to the Oct. 31 deadline.
Boxed in by Parliament and the courts, Mr. Johnson is expected to seek an election to break the Brexit impasse and try to capitalize on divisions in the opposition parties. MPs previously rejected a motion to hold an October election, arguing that the Brexit deadline must come first.
Speaking in Brighton at his party conference, Labour Party leader Jeremy Corbyn said Tuesday that he would not table a no-confidence vote against Mr. Johnson – a prelude to an election – until a no-deal Brexit was off the table. He added, “Boris Johnson has been found to have misled the country. This unelected prime minister should now resign.”
Mr. Johnson has been attending the United Nations General Assembly in New York where he met Tuesday with President Donald Trump. Before flying back to London he told reporters, “I strongly disagree with this judgment and we in the U.K. will not be deterred from getting on and delivering on the will of the people to come out of the EU on October the 31st, because that is what we were mandated to do.”
Ironically, the Leave campaign that Mr. Johnson led invoked the slogan “take back control” to refer to the exercise of power by British institutions, not European ones – including the courts. Mr. Johnson and others complained about the unfairness of British laws being overturned by the European Court of Justice and called for British judges to reassert their role as arbiters.
Assuming he stays, Mr. Johnson’s election campaign is likely to feature the populist narrative echoing today in pro-Brexit circles, says Mr. Fielding, namely that he “is the personification of the people’s will ... and Parliament and judges and elites have tried to stop me.”
“The British were famous for an ability to compromise, for Parliamentary democracy and debate and fair play,” he says. With Brexit’s polarizing politics “that’s all out of the window.”