Brexit stakes just got higher
Therese Raphael/Bloomberg
Three Scottish judges have lobbed a constitutional grenade onto an already bloody Brexit battlefield by ruling that Boris Johnson’s decision to suspend Britain’s parliament is unlawful.The Queen exercises her royal prerogative on the advice of her ministers.The practical impact of the Scottish ruling isn’t yet clear. The judges elegantly dodged the problem of how to enforce their decision by deferring the question of what to do about it until the UK Supreme Court makes its own prorogation ruling, expected next week.The issue turns not on whether the government has the right to suspend Parliament — it does. Indeed, last week a Scottish judge dismissed a petition brought by a group of more than 70 lawmakers that the prorogation was illegal, accepting the government’s rationale that it was a matter of “high policy” and political judgement.
High policy
Johnson argued — in the manner of a child playing truant ostensibly for the purposes of educational enrichment — that his government had closed down Parliament merely to ensure that a new legislative agenda, which is announced in the Queen’s Speech at the opening of a new parliamentary session, could be presented. So difficult was it to maintain that flimsy pretext that even his ministers had trouble sticking to the script.The government’s evocation that proroguing was “high policy” would usually be the end of matters. That’s considered the granddaddy of the prerogative powers handed down from monarch to ministers, which let governments make decisions on everything from issuing passports to going to war without the need to seek parliamentary approval.
The courts, which have become increasingly activist over time in reviewing prerogative powers, have largely steered clear of ruling on high policy, but that may be changing. Constitutional scholar Paul Craig has been arguing in recent weeks that just because prorogation may fall under a prime minister’s discretionary authority doesn’t prevent the government from using it unlawfully.