London’s High Court has thrown out a legal challenge against Prime Minister Boris Johnson’s plan to suspend Parliament just before Britain is due to leave the European Union, but said the case could be taken to the UK Supreme Court for a final appeal.
On Friday, the court rejected a case brought by campaigner Gina Miller and former Prime Minister Sir John Major.
“We have concluded that, whilst we should grant permission to apply for judicial review, the claim must be dismissed,” said Lord Chief Justice Lord Burnett.
Also sitting in judgement were senior figures of Britain’s judiciary, Master of the Rolls Sir Terence Etherton and President of the Queen’s Bench Division Dame Victoria Sharp.
The ruling comes in the same week the prime minister’s legal team fought off a separate legal challenge in Scotland. Another hearing in Belfast’s Royal Courts of Justice was continuing on Friday.
Miller – who successfully challenged the government at the High Court in 2016 over the triggering of the Article 50 process to start the Brexit countdown – had argued that Johnson’s advice to Queen Elizabeth II to “prorogue” Parliament for five weeks was an “unlawful abuse of power”.
The legal challenge has lost some impact after MPs voted this week to force Johnson to seek a three-month delay to the UK’s departure from the European bloc, rather than leave without a deal on October 31. The legislation was being debated by the upper house of Parliament on Friday and is expected to be approved.
“The basic thrust of the opposition moves which are going on in Parliament right now is that they don’t trust Boris Johnson not to try to somehow guarantee that Britain ‘crashes out’ in their words – that it leaves the EU on October 31 with no deal,” said Al Jazeera’s Nadim Baba, reporting from London.
“So this so-called ‘delay bill’ which the House of Lords is debating on Friday – and we expect them to vote and pass it later on Friday – will force the prime minister to seek an extension to the Brexit process. That is something he said he would rather ‘die in a ditch’ than do, but it does seem that it will pass.”
An ‘academic’ argument?
The legal action at the High Court was contested by the prime minister, whose lawyers argued the advice given to the queen was not unlawful – and that in any event, Miller’s claim was purely “academic”.
“The prime minister’s decision to prorogue Parliament is contrary to constitutional principle and constitutes an abuse of power,” Lord Pannick QC, representing Miller, told the judges during the hearing.
“There is no justification for closing Parliament in this way and, accordingly, it represents an unjustified undermining of parliamentary sovereignty which is the bedrock of our constitution,” he argued.
Pannick said the prime minister’s advice to the queen was “extraordinary” – both because of the “exceptional length” of the suspension and because Parliament would be “silenced” during the critical period leading up to the October 31 Brexit deadline.
Johnson’s lawyer, Sir James Eadie, responded: “The exercise of this prerogative power is intrinsically one of high policy and politics, not law.”
He pointed out that each House of Parliament – the Commons and the Lords – will sit before the UK leaves the EU on October 31 “and may consider any matter it chooses”.
The three judges are expected to give their reasons for dismissing the case in writing next week.
The judges granted permission for the case to go to the Supreme Court for an appeal, which will be heard on September 17.
Speaking outside the Royal Courts of Justice after the ruling, Miller said she was “very disappointed with the judgment”.
“We need to protect our institutions,” she said. “It is not right that they should be shut down or bullied, especially at this most momentous time in history.
“My legal team and I will not give up our fight for democracy.”