friday, 13 september of 2019

Brexit

English and Northern Irish courts reject legal challenges to suspension of Parliament

Courts in England and Northern Ireland have rejected challenges to Prime Minister Boris Johnson’s decision to prorogue, or suspend, Parliament, both holding that the act was a political matter in which the courts could not intervene.

An English court released a full judgment on Wednesday for a decision rendered last week, stating that reviewing the suspension of Parliament was not within the purview of the court. The challenge was brought by London businesswoman Gina Miller, who argued that the prorogation was motivated by Johnson’s desire to avoid “meddling” in Brexit negotiations by Parliament and constituted an unlawful usurpation of legislative authority by the Prime Minister. The three-judge panel for the court stated that “the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts.” They went on to say that “the Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political,” and that because of the political nature of the decisions “there are no legal standards against which to judge their legitimacy.” While conceding that the timing and length of Johnson’s prorogation was unusual, the court ultimately found that it would be improper to intervene because of the court’s longstanding refusal to decide purely political questions.

In a similar judgment released Thursday, a Northern Irish judge rejected a challenge to the prorogation on similar political question grounds. In addition, the court addressed whether a no-deal Brexit would constitute a breach of the Good Friday Agreement. The Good Friday Agreement, officially titled the Belfast Agreement of 1998, governs the relations between Ireland and the UK and has been a source of contention since the first round of Brexit negotiations. Most notably, a no-deal Brexit would likely result in the construction of border barriers between Ireland and Northern Ireland, a move that is expressly illegal under the Good Friday Agreement. Though the court stated that the Belfast Agreement constituted “supreme law” by which the government had to be abide, the hypothetical outcomes of the UK’s negotiations with the EU “speaks to exclusively future events,” which “as a matter of law may not materialise” and were inappropriate for the court to rule on at such an early stage. In the court’s opinion, intervening before negotiations had concluded would be tantamount to “invit[ing] this court to supervise the negotiations.” As a result, the court dismissed the argument for the same political question justification, holding that the negotiations were the responsibility of the Prime Minister.

The rulings come on the heels of a Scottish appellate court’s decision which determined that Johnson’s decision to prorogue Parliament was both justiciable and illegal. It is likely that the Scottish case will be consolidated with and proceed to the British Supreme Court with the Irish and English cases, with the judges in both opinions today expressly granting leave to the claimants to “leap-frog” their appeal to the highest court in the UK.

(Published by Jurist Org, September 13 2019)

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