12:26 GMT24 January 2020
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    Britain’s highest court has become another ‘character’ unlocked in the nationwide Brexit quest, following a ruling by a Scottish court that the prorogation of parliament weeks before the UK's planned departure from the EU was illegal.

    The UK Supreme Court will hear arguments on Tuesday over whether Prime Minister Boris Johnson’s decision to shut down Parliament was lawful or not.

    Parliament’s suspension – known as proroguing – began last week, and the lawmakers are supposed to reconvene on 14 October. Critics accused Johnson of limiting the time for Parliament to take action on Brexit, which is scheduled for 31 October, but Johnson insisted he solely made the move to clear the way for a new legislative agenda following Theresa May’s resignation in July.

    ​By Decree of Her Majesty

    To prorogue Parliament, the prime minister first had to request approval from the Queen, the formal head of state, and he received it. Eleven Supreme Court justices are set to rule in two or three days on whether his actions were legal, and Johnson’s defeat would open him to charges of lying to the Queen – an accusation he said was “absolutely not true”.

    The Tory leader has earlier faced three legal cases over the prorogation decision, brought either by human rights campaigners or MPs. The High Courts of Northern Ireland and of England and Wales both blocked the challenge. Scotland’s highest court, whose decision is binding on the UK government, has ruled that the prorogation was illegal because it had the “improper purpose” of stymieing Parliament and paving the way for a no-deal Brexit.

    Speaking to BBC ahead of the court case on Monday, the prime minister said he had the “greatest respect for the judiciary”, and that the best thing he could do was “wait and see what the judges say.”

    Legalities Over Politics

    Dr Roslyn Fuller, Director of the Solonian Democracy Institute, says of the case: “The big question here is whether or not the court will decide it has the power to make a determination on the prerogation. They could, as the London court did, decide that this is a purely ‘political’ matter and that therefore as long as the process was observed they cannot examine Johnson's motives for prorogation.”

    “However, they could also decide that he has exceeded his powers and is infringing on parliament's powers by proroguing for such an extended period of time,” Dr Fuller notes, adding that it would still be quite a technical decision.

    She adds: “The core of the problem here is the Fixed-Term Parliament Act — normally in parliamentary systems, the executive and legislative [branches] are not at loggerheads with each other — even minority governments tend to be short-lived. What we are seeing now is a more regular problem of Presidential systems.”

    “The elephant in the room is the fact that Johnson wants to facilitate the 2016 Brexit referendum and parliament wants to stop or delay it. However, that will need to remain an elephant in the room, because courts cannot decide on political matters — they can only decide on legalities and they have a duty to do so without regard to political convenience. In addition, as the referendum was technically advisory, I don't believe this can carry any weight with them.”

    No Progress on the EU Track

    His comments followed talks with European Commission President Juncker and top EU negotiator Barnier, which appeared to have seen no breakthrough. Johnson is trying to renegotiate Theresa May’s withdrawal agreement, which did not pass through Parliament because of the Irish backstop clause – a provision lawmakers fear would keep Britain tied to the EU indefinitely and undermine the much-desired independence in trade. Johnson wants this provision removed.

    However, Juncker’s office reminded after the Monday talks that “it is the UK's responsibility to come forward with legally operational solutions” to the existing agreement and that such proposals “have not yet been made”.

    Johnson countered that there was still a “good chance of a deal” and “just the right amount of time” to strike one.

    If the Brexit talks – which are going to become more frequent as the deadline looms – yield no results down the line, Britain would have to depart from the EU without a deal at hand. Such a scenario may prove disastrous for the economy, which would no longer have preferences in the European market, and potentially cause food, medicine and fuel shortages as well as job losses and civil unrest.

    So Parliament has passed a law forcing Johnson to request a Brexit delay on 19 October if there is no agreement by that time, and also forced the government to release its planning documents for the no-deal scenario and internal communications regarding the prorogation plans. The government did publish the papers but refused to release the communications.

    The prime minister repeatedly vowed he would not ask for any Brexit extension; however, if he delivers on that promise, he is very likely to face another legal challenge.

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