World·Analysis

A 'remarkable' U.K. court ruling, but there's still 'no easy way out' of Brexit

The U.K. Supreme Court’s justices sought to establish a distance from politics and Brexit in their unanimous decision that Prime Minister Boris Johnson acted unlawfully in his suspension of Parliament, but there is no escaping the political backdrop around it.

Supreme Court said Prime Minister Boris Johnson’s suspension of Parliament was unlawful

British Prime Minister Boris Johnson arrives for a meeting with United Nations secretary general Antonio Guterres at the UN General Assembly in New York on Tuesday, the same day the U.K. Supreme Court ruled his suspension of Parliament was 'unlawful.' (Spencer Platt/Getty Images)

A "remarkable" ruling from the U.K. Supreme Court on Tuesday found that Prime Minister Boris Johnson acted unlawfully when he asked the Queen to suspend Parliament in the runup to the latest deadline for Brexit.

But the unanimous decision by all 11 judges that came Tuesday ultimately offers no new way out of the morass that has consumed Britain as it wrestles with how to leave the European Union.

"They made it really clear that, firstly, they were not making any determination as regards Brexit or 'no deal' or anything to do with that," Christine Bell, a professor of constitutional law at the University of Edinburgh, said in an interview.

Still, as much as the justices sought to establish a distance from politics in their decision, there is no escaping the political backdrop around it.

"They are quite careful at making sure that it's not a political decision with a capital P but it … clearly has political implications, not least because the effect of the decision is that Parliament reconvenes [Wednesday]," Catherine Barnard, a professor of European law at Cambridge University, said in an interview.

Even if MPs return to debate how the U.K. might leave the EU by the Oct. 31 deadline — deal or no deal — there is little sense there is any greater clarity over how that could unfold.

A protester stands outside the U.K. Supreme Court in London after Tuesday's ruling. (Henry Nicholls/Reuters)

"It's quite hard to see exactly what happens, because all of the parties are a bit stuck, and essentially this reflects the U.K. is quite stuck over what to do next on Brexit," said Bell.

"The Labour Party is just as divided as the Conservative Party, with the same amount largely of acrimony and the types of internal party divisions."

In this situation she sees a "real constitutional crisis."

"There are things people can do next, and you can argue which is the least worst option, but actually none of them are very ideal. All of them have a political price," she said.

Say Brexit is called off. There's a political price for those who felt they exercised a democratic vote and won three years ago when the U.K. voted 51.9 per cent in favour of leaving the EU.

"If Brexit continues, there isn't really a deal that people can accept across the political board to the extent that they need to get it through Parliament and what that deal should be," said Bell. "Time's running out. There's no consent for 'no deal' — and 'no deal' doesn't really honour how narrowly the vote was won."

Throughout  all this, Parliament has voted against a lot of options.

"But it hasn't really been able to broker — and neither have any of the political parties internally been able to broker — a consensus of what the U.K. wants from Brexit. And until it does, it can't really negotiate coherently with the EU," said Bell.

Enough melodrama

There's reason to think the EU would be happy to have all this resolved.

"The EU is pretty keen for the U.K. to go because having this melodrama taking place is a distraction from the EU and the EU having a new commission that wants to start with its new agenda," said Barnard.

Tuesday's judgment was a "remarkable ruling," she said.

"It's pretty strong language that the Supreme Court uses. They say the effect on the fundamentals of our democracy are extreme."

Worries about democracy were top of mind for some outside the Supreme Court in London as they waited Tuesday morning for word on the ruling.

"I would hope that democracy would win here today, that the proroguing of Parliament will be seen as being an illegal act, an unlawful act, and that the prime minister will …  have to abide by the normal strictures of democracy," said Pat MacVicar of Donegal in Ireland.

Watch Johnson's reaction to the Supreme Court's decision:

Boris Johnson 'strongly disagrees' with U.K. Supreme Court decision

2 years ago
0:56
The U.K. prime minister defended his prorogation of Parliament despite the country's top court ruling that it was unlawful. 0:56

Johnson said he "strongly disagrees" with the ruling, and refused to say whether he would step down.

There's little to suggest he's going anywhere anytime soon.

"In normal times, I imagine the prime minister would stand down. I mean, this is a damning indictment of what he's done," said Barnard." But it looks like this prime minister is going to weather it out."

Watch Brenda Hale's ruling against Johnson's suspension of Parliament:

Suspension of U.K. Parliament was illegal, Supreme Court rules

2 years ago
0:55
The U.K.'s top court ruled unanimously that PM Boris Johnson's government had shut Parliament to squelch debate on its Brexit policy. 0:55

Supreme Court president Brenda Hale said Johnson's suspension was "unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification."

Broader implication

Bell finds a broader constitutional implication in the Brexit debate and Tuesday's ruling.

The U.K. constitution is unwritten and, Bell said, doesn't really have rules to sort out what could happen with Brexit.

"I think the U.K. has really, through Brexit, seen much more than people even realized with this judgment a kind of unravelling of the entire U.K. constitutional framework — and I would really put it that strongly."

The problems are more profound than anyone has realized, she suggests.

"And I think what makes them profound is there's no easy way out," she said.

"I think the difficulty is … we're sort of up the proverbial creek without a paddle, not just on Brexit but on really whether we have a functioning constitution able to give us the guidance we need in situations of crisis."

Still, eventually, one would think, something will have to give over Brexit. 

 "I do think something dramatic is going to have to happen to get us out of the mess, and I think it is putting all of these debates back on the table," said Bell. "But none of them, again, are things that can happen fast or that would be very easy solutions to any of it."

ABOUT THE AUTHOR

Janet Davison is a CBC senior writer and editor based in Toronto.

With files from CBC's Cameron MacIntosh and The Associated Press

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