Prorogation gambit set to fail on legal and political fronts

If Brexit were a soap opera, scriptwriters would feel they were stretching plausibility by coming up with yet more sudden plot twists. Reality is less constrained and yesterday we saw a further twist in Brexit story when Scotland's highest appeal court ruled that Boris Johnson's prorogation of parliament was illegal.

In doing so, it overturned the ruling of a lower Scottish court and went against a ruling of the English high court that this was not a matter in relation to which judges could intervene.

The Scottish judges accepted that the prime minister had the power to ask the monarch to prorogue parliament but found that in advising the queen to prorogue parliament for five weeks, Johnson had acted with an improper purpose, namely to stymie parliament. Because he had relied on this improper purpose, his advice to Queen Elizabeth was, they concluded, unlawful.

This victory underlines how tactically astute it was for opponents of prorogation to have begun the case in Edinburgh rather than London. As Scottish lawyers rightly remind English colleagues from time to time, the Act of union of 1707 was a merger of two countries, not a takeover of Scotland by England. Accordingly, distinctive Scottish legal and constitutional traditions were not extinguished by the Act of union.

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The Scottish legal system is more favourable to this kind of challenge. Scottish courts had already played a significant role in the Brexit process when they agreed in the Wightman case, to ask the European Court of Justice whether the UK had the right to unilaterally revoke article 50 and cancel Brexit (the European court, to the surprise of many, indicated that the UK did have that right).

Just as Brexit has highlighted the political differences between the constituent parts of the UK, yesterday’s ruling is like to highlight legal differences as the UK supreme court will now have to reconcile conflicting rulings of English and Scottish courts on the legality of prorogation.

It is now possible that Johnson’s prorogation gambit will produce defeat on both the legal and political fronts.

Pyrrhic victory

Indeed, even if the government wins in the supreme court, this will be something of a pyrrhic victory. Johnson’s intention in imposing a lengthy prorogation was to deprive opponents in parliament of time to pass legislation forcing him to request an extension of article 50 from the European Council.

However, by behaving in a way that was widely regarded as outrageous the prime minister gave a previously divided anti-no-deal majority a unity and decisiveness it had previously lacked.

Moderate Conservatives abandoned the government in large numbers and with Johnson openly breaching at least the spirit of constitutional norms, it was easy for the speaker to disregard parliamentary tradition and to help no-deal opponents to seize control of the parliamentary timetable. The newly-united opposition then succeeded in passing legislation that requires the prime minister to apply for an extension of article 50 in the few days before the prorogation of parliament kicked in.

No-deal opponents are not entirely out of the woods. An extension of article 50 must be approved by the heads of government of all of the 27 remaining EU states. Under Johnson, the UK government may make EU governments reluctant to grant an extension by threatening to disrupt EU business during the extension (though yesterday’s Scottish ruling will provide ammunition to those who will argue that such a policy would be illegal as it would have the “improper purpose” of frustrating parliament’s will that an extension be obtained).

Loophole

Johnson may also try other tricks such as advising the queen not to sign the relevant legislation or finding a loophole that he claims absolves him of the duty to seek the extension.

That said, the likely Brexit endgame is finally becoming clear. The prorogation gamble has likely cost Brexiteers their chance of achieving Brexit by October 31st. It is very difficult for Johnson to avoid requesting an extension and the EU is unlikely to refuse an extension request with an election imminent. It is therefore now very unlikely that Brexit can go ahead without there first being a general election.

Three years into the process, all is still to play for but a decisive resolution is close. If the Conservatives win the election Brexit will go ahead. If the combined opposition wins a majority then a second referendum is inevitable. Polls indicate a small but consistent majority for remain in that referendum and any option that allows British voters to be shot of the seemingly never-ending debate on this topic is likely to be popular.

Whatever the outcome, Britain’s constitution will never be the same again. Brexit has brought into the open all sorts of tensions, between Scotland and England, between conventions and written rules and between parliamentary and referendum democracy that will be with us for some time to come.

Ronan McCrea is professor of constitutional and European law at University College London