Wednesday 23 October 2019

John Downing: 'Judgment day now looms for Johnson, and so much could hinge on the decision of a court that was unknown to millions just a few short weeks ago'

Boris Johnson met Taoiseach Leo Varadkar in Dublin earlier this month (PA)
Boris Johnson met Taoiseach Leo Varadkar in Dublin earlier this month (PA)
John Downing

John Downing

In June 2017 the internet in the UK was inundated with searches for "who are the Democratic Unionist Party?" as Arlene Foster and company signed on to prop up Theresa May's minority government. Last week, the United Kingdom's Supreme Court got an astounding 4.4 million hits on its website on the first day of its highly dramatic hearing about Brexit.

Normally, the UK's highest court gets several thousand worthy and professional searches each month. Many ordinary citizens would reckon they would deserve an award for even knowing of its existence. So, yet another example of the bizarre times in which we live.

Of course this case was not about Brexit - those of us who followed it were repeatedly told by the learned judges. And in efforts to drive home this point the president of the court, Baroness Hale, concluded proceedings by saying: "I must repeat that this case is not about when and on what terms the UK leaves the European Union. We are solely concerned with the lawfulness of the prime minister's decision to advise her majesty to prorogue Parliament."

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The popular view is that it was all about Brexit. There was even a late correction to the court's website to remove the "B-word". The formidable businesswoman Gina Miller brought the case specifically with a view to blocking Brexit and her high-profile supporter, John Major, is of the same ilk.

And already, the same court has ruled that the UK Parliament had to have a vote on triggering the UK's exit process from the EU.

Ms Miller, of course, insists she just wants to ensure the appropriate democratic procedures are honoured. But in autumn 2016, weeks after the Brexit referendum shock result, she publicly said she was "physically sick" at the prospect of the UK quitting the EU.

Battle: Remain activist Gina Miller at the Supreme Court where judges are considering legal challenges to Boris Johnson’s decision to suspend parliament. Photo: Kirsty O’Connor/PA
Battle: Remain activist Gina Miller at the Supreme Court where judges are considering legal challenges to Boris Johnson’s decision to suspend parliament. Photo: Kirsty O’Connor/PA

The verdict may come tomorrow. Originally, legal experts expected it to be a comprehensive "No" on grounds that the UK judges avoid intruding on to political turf. But by the weekend, many were parsing the judges' questions, and signalling they may well deliver a shock to UK Prime Minister Boris Johnson.

In that case, you can stand by for some major anti-judge broadsides from the UK Tory fellow-travelling press. Already, some of the heavy-hitting right-wing commentators have been issuing some preparatory sound blasts.

Unlike Ireland, the UK has no great tradition of judges making judgments that overlap with politics. This one risks being very noisy. The UK courts have been far less assertive than in Ireland on ruling about the necessary checks and balances in the separations of powers between parliament, cabinet and the courts. If this one goes against the London government, there will be talk of an elite using expensive lawyers to upend the will of the people as expressed in the June 2016 Brexit referendum.

Lord Garnier, the lawyer for former prime minister Mr Major, told the court that Mr Johnson had "lied to the queen" about his motivation for shutting down the UK Parliament until October 14. The motivation was stopping MPs from blocking no deal on October 31 - not facilitating a new law-making programme to be expressed as protocol would have it via a new "Queen's Speech".

Mr Major has faced his own counter-accusations on this one, going back to 1997 when he closed Parliament ahead of an election he subsequently lost to Labour's Tony Blair. His critics also countered that a prime minister just gives the monarch the government's advice - it does not necessarily require reasons.

But if Mr Johnson is ruled to have misled the queen, then it is tough stuff. That would raise questions about him having to resign from the office he only took up for the first time on July 24, leaving him having served one of the shortest ever terms.

Again, the critics argue that this is pure politics - not law. John Major, who did much that was right by Ireland in this and other matters, has never managed to hide his contempt for Boris Johnson's politics.

Yet it was still bizarrely remarkable that a former Conservative prime minister should be taking one of his successors, from the self-same party, to court on the grounds that he "lied to the queen". But against that, this one does go back a ways and this writer vividly remembers the journalist Johnson's sometimes very testy encounters with then-prime minister Major at major EU press conferences.

But thoughts of the 11 judges at the court finding against Boris Johnson persist and over the course of last week's three-day hearing legal experts' views shifted dramatically in that direction. There are three aspects of the case that suggest Mr Johnson's government could lose. One is that the judges frequently asked what they would do in the line of remedies if they ruled against the government.

Another was the chief judge's forensic questioning of the government lawyer suggesting she was sceptical about his arguments. Third was the verdict delay suggesting that if the government was going to win, a summary result would have issued.

Read more: Eoghan Harris: 'Taoiseach must take risks on backstop to save economy'

Mr Johnson's government has pledged to abide by whatever the ruling is. But speculation is that the prime minister could just re-open Parliament and then close it again soon afterwards.

Everything will turn on the detail of the UK Supreme Court's ruling. If the ruling does not entirely upend Mr Johnson's grasp on his job, then it may soon become politically academic in the short term, though significant for the medium to longer term in UK politics.

An adverse court ruling would cut little ice with the died-in-the-wool Brexiteers who are Mr Johnson's target market in an election which, any way you look at it, will be just months away. In fact, it could be politically helpful in reinforcing his "Brexit do-or-die" rhetoric.

Meanwhile, the Brexit talkathon itself will shift to New York from today with hopes that the Taoiseach will meet Mr Johnson. None of the soundings is positive about prospects of an early breakthrough.

What slender hopes remain turn on something only happening after the Conservative Party's annual conference which opens in Manchester next week. One suggestion is that there could be a flurry of activity in the days before the October 17 and 18 EU leaders' summit.

The rabbit from the hat could be a return to the Northern Ireland only backstop. That would also require support from the DUP and it would be decision time for Dublin.

Read more: Varadkar to stress openness to 'realistic' backstop alternative with Johnson - but time for deal 'shrinking rapidly'

But more immediately, people will look to the UK Supreme Court judges to see what wisdom they can bring to the issue.

The reaction to any finding against Mr Johnson and his government will be inordinately noisy. We will be reminded again about how the Irish and UK court systems have diverged over the years and especially since the 1970s in Ireland when the Supreme Court began following the US example. Brace yourselves.

Irish Independent

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