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| Brexit: Supreme court hears claim Boris Johnson abused prorogation more than any PM for 50 years – live news | Brexit: Supreme court hears claim Boris Johnson abused prorogation more than any PM for 50 years – live news |
| (30 minutes later) | |
| And this is from the barrister and legal commentator Adam Wagner. | |
| Government seems behind after today’s hearing, based on interventions by justices. But wrong to assume that a judicial intervention indicates their view. Can just be testing arguments. Key also to see how they approach Sir James Eadie’s (for govt’s) submissions. | |
| During the morning of today’s supreme court hearing, the live stream on the court’s website was accessed 4.4m times – with 2.8m stream requests being logged in the hour before the 1pm break for lunch, the Press Association reports. Typically, the live streaming service is accessed about 20,000 times a month. | |
| The European commission has renewed its call for the UK to come up with proposals for an alternative to the backstop. This is what its spokeswoman, Mina Andreeva, told a briefing in Strasbourg earlier. | The European commission has renewed its call for the UK to come up with proposals for an alternative to the backstop. This is what its spokeswoman, Mina Andreeva, told a briefing in Strasbourg earlier. |
| We are still waiting for concrete proposals from the UK side. | We are still waiting for concrete proposals from the UK side. |
| Both sides have stated that they want to have a deal. A no-deal Brexit is in nobody’s interests so clearly there is the willingness to arrive to a solution. | Both sides have stated that they want to have a deal. A no-deal Brexit is in nobody’s interests so clearly there is the willingness to arrive to a solution. |
| But, again, I think we have recalled that it’s now the UK’s responsibility to come forward with legally operational solutions that are compatible with the withdrawal agreement that are necessary in order to move the discussions forward. | But, again, I think we have recalled that it’s now the UK’s responsibility to come forward with legally operational solutions that are compatible with the withdrawal agreement that are necessary in order to move the discussions forward. |
| Here is one view on the proceedings, from the lawyer and legal commentator Carl Gardner. | Here is one view on the proceedings, from the lawyer and legal commentator Carl Gardner. |
| I haven't followed very closely today. I've had it on in the background. And predicting court judgments is a mug's game which is why I can't help playing it. But anyway, from what I have heard I reckon the Miller and Cherry legal huddles will be happier than the government's. | I haven't followed very closely today. I've had it on in the background. And predicting court judgments is a mug's game which is why I can't help playing it. But anyway, from what I have heard I reckon the Miller and Cherry legal huddles will be happier than the government's. |
| Keen is winding up now. | Keen is winding up now. |
| He says the Scottish judgment should be rejected. And, even if the supreme court endorses what it decides, he says the point about the prorogation currently being null and of no effect (see 2.32pm) should be struck out. | He says the Scottish judgment should be rejected. And, even if the supreme court endorses what it decides, he says the point about the prorogation currently being null and of no effect (see 2.32pm) should be struck out. |
| And he says he will discuss with Lord Pannick what form of words could be used in any written undertaking by the PM that he will abide by the court’s decision. (See 2.32pm.) | And he says he will discuss with Lord Pannick what form of words could be used in any written undertaking by the PM that he will abide by the court’s decision. (See 2.32pm.) |
| And that’s it. The hearing is over for today. | And that’s it. The hearing is over for today. |
| I will post a summary soon. | I will post a summary soon. |
| Keen says the Scottish court was proceeding on the basis of a misunderstanding of how parliament operates. | Keen says the Scottish court was proceeding on the basis of a misunderstanding of how parliament operates. |
| Making the same point a few minutes ago, he said the Scottish judgment said parliament could reconvene itself at any time during an adjournment. But it cannot, Keen said. During an adjournment, parliament can only be recalled if the government asks for that, he said. | Making the same point a few minutes ago, he said the Scottish judgment said parliament could reconvene itself at any time during an adjournment. But it cannot, Keen said. During an adjournment, parliament can only be recalled if the government asks for that, he said. |
| Keen quotes from the Scottish court judgment. He reads out this passage. | Keen quotes from the Scottish court judgment. He reads out this passage. |
| Although the planned prorogation would be 34 days, the expected conference recess of three weeks would mean that only one to three days would be lost in the week commencing 9 September and four in the week commencing 7 October. | Although the planned prorogation would be 34 days, the expected conference recess of three weeks would mean that only one to three days would be lost in the week commencing 9 September and four in the week commencing 7 October. |
| That makes a total of seven days, Keen says. | That makes a total of seven days, Keen says. |
| But he says elsewhere in the judgment the Scottish court says the prorogation amounted to five weeks. He says the five weeks claim is wrong. This passage shows we are only talking about seven days, he says. | But he says elsewhere in the judgment the Scottish court says the prorogation amounted to five weeks. He says the five weeks claim is wrong. This passage shows we are only talking about seven days, he says. |
| A judge asks why seven days were needed. | A judge asks why seven days were needed. |
| Keen does not answer the question directly. Why not seven days, he asks? He says there is no set number of days. | Keen does not answer the question directly. Why not seven days, he asks? He says there is no set number of days. |
| Keen says he does not see how the Scottish court could produce an inference of improper motive on the basis of the evidence available to it. | Keen says he does not see how the Scottish court could produce an inference of improper motive on the basis of the evidence available to it. |
| A judge asks why the prorogation had to last for five weeks. | A judge asks why the prorogation had to last for five weeks. |
| Keen says that was because it covered the party conference season. He says actually only seven sitting days are being lost. | Keen says that was because it covered the party conference season. He says actually only seven sitting days are being lost. |
| He says the Scottish court, the inner house of the court of session, made a “fundamental misunderstanding” in assessing the significance of the length of prorogation. | He says the Scottish court, the inner house of the court of session, made a “fundamental misunderstanding” in assessing the significance of the length of prorogation. |
| Another judge asks about a Spectator article written by Nikki da Costa on 29 June. It was headlined: “Will parliament be able to stop the next PM leaving without a deal?” The article refers to prorogation as a “nuclear option”. He asks Keen if he is happy for this to be taken in to account. | Another judge asks about a Spectator article written by Nikki da Costa on 29 June. It was headlined: “Will parliament be able to stop the next PM leaving without a deal?” The article refers to prorogation as a “nuclear option”. He asks Keen if he is happy for this to be taken in to account. |
| Keen says, when she wrote the article, she was a private individual, not director of legislative affairs at No 10. | Keen says, when she wrote the article, she was a private individual, not director of legislative affairs at No 10. |
| He says the court could look at all sorts of speculation. But it should consider the evidence submitted by the government, which explains the reasons for what happened, he says. (See 3.32pm.) | He says the court could look at all sorts of speculation. But it should consider the evidence submitted by the government, which explains the reasons for what happened, he says. (See 3.32pm.) |
| Keen now quotes from what Boris Johnson said in response to what Nikki da Costa put to him in her memo. (See 3.32pm.) Johnson replied: | Keen now quotes from what Boris Johnson said in response to what Nikki da Costa put to him in her memo. (See 3.32pm.) Johnson replied: |
| The whole September session is a rigmarole introduced to show the public that MPs were earning their crust. So I don’t see anything especially shocking about this proposition. | The whole September session is a rigmarole introduced to show the public that MPs were earning their crust. So I don’t see anything especially shocking about this proposition. |
| Keen says there was correspondence between the government and Gina Miller’s team about the production of documents for the court. | Keen says there was correspondence between the government and Gina Miller’s team about the production of documents for the court. |
| He says the government legal department sent a letter saying the documents it had submitted, contemporaneous documents sent to the PM, explained the thinking for prorogation. | He says the government legal department sent a letter saying the documents it had submitted, contemporaneous documents sent to the PM, explained the thinking for prorogation. |
| In the letter, the government lawyers said they had nothing further to add. | In the letter, the government lawyers said they had nothing further to add. |
| He says the documents that were produced, quite exceptionally, included a cabinet minute. | He says the documents that were produced, quite exceptionally, included a cabinet minute. |
| He quotes from one of the documents – a memo from Nikki da Costa, director of legislative affairs, to the PM. He reads this out. | He quotes from one of the documents – a memo from Nikki da Costa, director of legislative affairs, to the PM. He reads this out. |
| The current session is the longest since records began, and all bills announced as part of the last Queen’s speech have now received royal assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new prime minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the house returns in the autumn. | The current session is the longest since records began, and all bills announced as part of the last Queen’s speech have now received royal assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new prime minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the house returns in the autumn. |
| As the first week’s business in September has already been announced, I recommend dedicating the second to wash-up on bills such as R&R [restoration and renewals]. We would then prorogue sometime between the end of Monday 9th September and Thursday 12th September, allowing for the long-standing conference recess, and return on Monday 14th October with the state opening of parliament. | As the first week’s business in September has already been announced, I recommend dedicating the second to wash-up on bills such as R&R [restoration and renewals]. We would then prorogue sometime between the end of Monday 9th September and Thursday 12th September, allowing for the long-standing conference recess, and return on Monday 14th October with the state opening of parliament. |
| A judge asks if the reference to bills being carried over shows that prorogation was being considered at this point. The memo was dated 15 August. | A judge asks if the reference to bills being carried over shows that prorogation was being considered at this point. The memo was dated 15 August. |
| Keen says that, at this point after such a long session, it would be normal to think of what is coming next. | Keen says that, at this point after such a long session, it would be normal to think of what is coming next. |
| Keen is now addressing what the Scottish court of session said about Boris Johnson’s motives for prorogation. | Keen is now addressing what the Scottish court of session said about Boris Johnson’s motives for prorogation. |
| (This might be the hardest issue for him to address. The government’s claim that it had nothing to do with limiting the opportunities available to MPs to block Brexit is not widely believed.) | (This might be the hardest issue for him to address. The government’s claim that it had nothing to do with limiting the opportunities available to MPs to block Brexit is not widely believed.) |
| Rather curiously, Lord Keen, for the government, couldn't answer the question from one of the justices, Lord Hodge, about how the government can comply with regular NI reports to Parliament if it has been forcibly closed. He says he’ll come back on that later. | Rather curiously, Lord Keen, for the government, couldn't answer the question from one of the justices, Lord Hodge, about how the government can comply with regular NI reports to Parliament if it has been forcibly closed. He says he’ll come back on that later. |
| Keen refers to what Lord Carloway, the lord president of the court of session in Scotland, said in his judgment (pdf) about prorogation. Carloway said “decisions which are made on the basis of legitimate political considerations alone are not justiciable”. | Keen refers to what Lord Carloway, the lord president of the court of session in Scotland, said in his judgment (pdf) about prorogation. Carloway said “decisions which are made on the basis of legitimate political considerations alone are not justiciable”. |
| But that raises the questions as to what political considerations are not legitimate, Keen says. He says the Scottish court did not answer this. | But that raises the questions as to what political considerations are not legitimate, Keen says. He says the Scottish court did not answer this. |