This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.

You can find the current article at its original source at https://www.theguardian.com/politics/live/2019/sep/17/brexit-latest-news-supreme-court-minister-refuses-to-rule-out-boris-johnson-suspending-parliament-again-ahead-of-supreme-court-hearing-live-news

The article has changed 19 times. There is an RSS feed of changes available.

Version 3 Version 4
Brexit: Supreme court begins hearing legal challenges over Boris Johnson's suspension of parliament – live news Brexit: Supreme court begins hearing case over Johnson's suspension of parliament – live news
(32 minutes later)
Pannick says he wants to bring up two additional pieces of evidence that back up the idea that the PM prorogued parliament to frustrate parliament. From the BBC’s Dominic Casciani
He quotes from an interview that Boris Johnson gave to Sky News after the prorogation announcement in which he said that the more people in the EU thought parliament might block Brexit, the less likely they were to give the UK a deal. And he quotes from a BBC interview in which Johnson made the same point. Bit early to read the runes, but we've had three interventions/questions so far from Lords Carnwath and Reed. They were two of the three dissenting judges in the court's decision that Parliament, not the PM, has the power to trigger Art 50 and leaving the EU.
Pannick says he is not interested in whether Johnson was right. He is citing these quotes as evidence of the PM’s motive in proroguing parliament. Pannick is now addressing his second main argument - that it is “elementary in public law” that a power can only be used for its proper purpose.
He says this principle goes back to the 17th century.
And he says this was backed up by a House of Lords judgment in 1968 - the Padfield case.
Pannick says this judgment said ministers should not use powers under an act of parliaement to frustrate the purposes of the act.
During the day I will be beefing up some of the earlier posts with direct quotes from the Press Association wires. If you want to read them, you may need to refresh the page.
Pannick is summing up the first of his three main arguments. (See 10.41am.)
He says the PM would not have gone for such a long prorogation if it had not been for his desire to frustrate parliament.
This was an “improper motive”, he says.
Pannick says this case “cries out” for an answer from the PM in the form of a witness statement as to why he prorogued parliament.
He says, without a witness statement, the court should infer that the desire to frustrate parliament was a factor in prorogation, he says.
Pannick says the PM has not made a witness statement giving his reasons for proroguing parliament. He refused, even though his motives were key to this case.
Pannick says if the PM had provided a witness statement he would have been open to cross-examination.
The production of a witness statement from the prime minister, or indeed anyone else, setting out the reasons for advising on a prorogation as long as five weeks would have had legal consequences.
The legal consequences of such a witness statement would have been, almost inevitably, an application to cross-examine.
The legal consequences would be that it would be a contempt of court, of course, for such a witness statement not to tell the truth.
Our submission is that the documents [before the court] pose more questions than they answer, as the inner house [of the court of session in Scotland] has pointed out, and in any event the production of those documents is no substitute for evidence from the prime minister or someone on his behalf stating to the court in terms why he thought prorogation for the exceptionally long period of five weeks.
Pannick says he wants to bring up two additional pieces of evidence that back up the idea that the PM prorogued parliament to frustrate it.
He quotes from an interview Boris Johnson gave to Sky News after the prorogation announcement in which he said:
The best way to leave with a deal is if our friends and partners over the channel don’t think that Brexit can be blocked by parliament.
And Pannick quotes from a BBC interview in which Johnson made the same point.
Pannick says he is not interested in whether Johnson was right. He is citing these quotes as evidence of the PM’s motive for proroguing parliament.
Pannick says he has finished his introduction.Pannick says he has finished his introduction.
Now he is turning to his first main argument - the facts of this case. (See 10.41am.) Now he is turning to his first main argument – the facts of this case. (See 10.41am.)
This is the argument that prorogation was designed to frustrate parliament.This is the argument that prorogation was designed to frustrate parliament.
He says he backs the arguments made by the court of sessions on this. In particular, he refers the judges to this passage from the Scottish judgment.He says he backs the arguments made by the court of sessions on this. In particular, he refers the judges to this passage from the Scottish judgment.
Here is an excerpt from one of the paragraphs in the judgment (pdf) that Pannick refers to.Here is an excerpt from one of the paragraphs in the judgment (pdf) that Pannick refers to.
In neither the memorandum nor the prime minister’s comments is any actual reason for the prorogation given other than a desire to begin a new session of parliament with, as is customary, a Queen’s Speech in which the government’s legislative programme is set out. Reference is made to the fact that the legislative programme for the present session of parliament is nearly at an end, which would provide a valid reason for starting a new session. No attempt is made, however, to explain why a prorogation of five weeks is necessary at a time of acute national controversy. The critical complaint about the prorogation is not the fact that it occurred; short prorogation is regularly used to start new parliamentary sessions. The complaint rather relates to the length of the period during which parliament is to be prorogued, without any power to resume sitting during that period. In neither the memorandum nor the prime minister’s comments is any actual reason for the prorogation given other than a desire to begin a new session of parliament with, as is customary, a Queen’s speech in which the government’s legislative programme is set out. Reference is made to the fact that the legislative programme for the present session of parliament is nearly at an end, which would provide a valid reason for starting a new session. No attempt is made, however, to explain why a prorogation of five weeks is necessary at a time of acute national controversy. The critical complaint about the prorogation is not the fact that it occurred; short prorogation is regularly used to start new parliamentary sessions. The complaint rather relates to the length of the period during which parliament is to be prorogued, without any power to resume sitting during that period.
Pannick now reads out the quote. Jacob Rees-Mogg told the Today progamme that the Queen had not discretion over prorogation. She had to do as the government advised, Rees-Mogg says. Pannick now reads out the quote. Jacob Rees-Mogg told the Today progamme that the Queen had no discretion over prorogation. She had to do as the government advised, Rees-Mogg says.
Pannick says he is making no criticism of the Queen in these proceedings.Pannick says he is making no criticism of the Queen in these proceedings.
Pannick is now trying to find a quote from Jacob Rees-Mogg, the leader of the Commons, on the Today programme.Pannick is now trying to find a quote from Jacob Rees-Mogg, the leader of the Commons, on the Today programme.
But the judges cannot find it in their bundle of court documents, not all of which seem to be marked up in the same way.But the judges cannot find it in their bundle of court documents, not all of which seem to be marked up in the same way.
Pannick quotes paragraph 77 from the government’s case (pdf). It says:Pannick quotes paragraph 77 from the government’s case (pdf). It says:
There is no authority (domestic or decided in any country operating a Westminster system of government) which supports the proposition that the exercise of a power to prorogue the legislature is amenable to judicial review.There is no authority (domestic or decided in any country operating a Westminster system of government) which supports the proposition that the exercise of a power to prorogue the legislature is amenable to judicial review.
Pannick says his case is that what the government is doing is exceptional. He says:Pannick says his case is that what the government is doing is exceptional. He says:
No prime minister has abused his power in the manner in which we allege in at least the last 50 years.No prime minister has abused his power in the manner in which we allege in at least the last 50 years.
Pannick says the government has also argued that parliament did sit in September, and will sit again on 14 October. And during the September sitting it legislated, the government has argued (implying that prorogation did not frustrate parliament).Pannick says the government has also argued that parliament did sit in September, and will sit again on 14 October. And during the September sitting it legislated, the government has argued (implying that prorogation did not frustrate parliament).
But Pannick says it is not for the court to argue what parliament might or might not do when it is sitting.But Pannick says it is not for the court to argue what parliament might or might not do when it is sitting.
If the PM acted for an improper motive, it is not open to him to say now that his fear was mistaken.If the PM acted for an improper motive, it is not open to him to say now that his fear was mistaken.
He says parliament may wish to impose further obligations on the period up to the EU summit in October.He says parliament may wish to impose further obligations on the period up to the EU summit in October.
The issues in these proceedings are “very far from academic”, he says.The issues in these proceedings are “very far from academic”, he says.
Pannick says the government has argued that there are legislative provisions that relate to parliamentary sittings, such as the Northern Ireland (Executive Formation) Act.Pannick says the government has argued that there are legislative provisions that relate to parliamentary sittings, such as the Northern Ireland (Executive Formation) Act.
He says these provisions do not invalid that point that parliament should not be prorogued for an improper motive. He says these provisions do not invalidate the point that parliament should not be prorogued for an improper motive.
Pannick turns to three arguments advanced by the government.Pannick turns to three arguments advanced by the government.
The government is arguing that there are no legal rules relating to prorogation, only conventions.The government is arguing that there are no legal rules relating to prorogation, only conventions.
Pannick says he is not arguing that prorogation has to last for a maximum amount of time.Pannick says he is not arguing that prorogation has to last for a maximum amount of time.
He says what matters here is intention. And in this case the length of the prorogation suggests that the PM’s motive was to “silence period” during this period. He says what matters here is intention. And in this case the length of the prorogation suggests that the PM’s motive was to “silence parliament” during this period.
Lord Pannick QC is now speaking.Lord Pannick QC is now speaking.
He is speaking on behalf of Gina Miller.He is speaking on behalf of Gina Miller.
He says he wants to make three main arguments.He says he wants to make three main arguments.
First, he says, he is arguing that the prime minister opted for a five-week prorogation to limit the opportunity of parliament to frustrate his government’s policies.First, he says, he is arguing that the prime minister opted for a five-week prorogation to limit the opportunity of parliament to frustrate his government’s policies.
Second, he says, he is arguing that it is “elementary in public law” that a power can only be used for its proper purpose. That applies to prerogative powers as well, he says.Second, he says, he is arguing that it is “elementary in public law” that a power can only be used for its proper purpose. That applies to prerogative powers as well, he says.
He says for the executive to use a prerogative power to evade the scrutiny of parliament stands the principles of constitutional law on its head.He says for the executive to use a prerogative power to evade the scrutiny of parliament stands the principles of constitutional law on its head.
He says he will argue that the government is arguing the “constitutional novelty” that the powers of the legislature to scrutinise the executive are subject to powers exercised by the executive.He says he will argue that the government is arguing the “constitutional novelty” that the powers of the legislature to scrutinise the executive are subject to powers exercised by the executive.
And, third, he says, he will argue that the high court was wrong to argue that the decision to prorogue was not justiciable (subject to adjudication by the courts). He says he is not arguing how long prorogation should be.And, third, he says, he will argue that the high court was wrong to argue that the decision to prorogue was not justiciable (subject to adjudication by the courts). He says he is not arguing how long prorogation should be.
Lady Hale, the president of the supreme court, starts.
She says this is a difficult case because senior judges in England and Scotland have reached different conclusions.
She says this case will not decide how and when the UK leaves the EU.
She says these appeals have been heard at very short notice.
The 11 supreme court judges hearing the case are now taking their seats.
That means all but one of the 12 judges on the court are here - an indication of how important this case is seen.
The supreme court hearing is about to start.
There is a live feed at the top of the blog.
You can tell the supreme court hearing is important because David Dimbleby has turned up. According to the Press Association, the broadcasting veteran has been speaking to those queuing to get into the court hearing. Dimbleby told PA:
I lived through Suez, the miners’ strike, I lived through the poll tax debate and the trouble then. I lived through the Iraq demonstrations - I’ve never seen the country so divided as this ...
The prime minister is accused of lying to the Queen – let’s put it bluntly – and getting parliament suspended without good reason and that’s big potatoes, it has to be.
To make sense of any court hearing, you need to have the relevant paperwork to hand. Here is a guide to the background information you need to make sense of today’s proceedings.
A good starting point is my colleague Owen Bowcott’s guide to the issues at stake.
Judgments from the lower courts
Courts in England, Scotland and Northern Ireland have already ruled on prorogation and Brexit.
Last week the Scottish court of session ruled that prorogation was unlawful. What is really at issue today is whether the supreme court backs this decision or overturns it.
Here is a summary of the Scottish judgment. And here is the 68-page full judgment (pdf).
But the high court in London rejected a very similar claim, on the grounds that prorogation was a political matter and that it was not for the courts to decide whether or not it was proper. Here is a summary of that high court judgment (pdf). And here is the full judgment (pdf).
On Thursday, the high court in Belfast also found in favour of the government, but on a challenge claiming a no-deal Brexit would breach the Good Friday agreement. You can read that judgment here (pdf), but it is not central to the supreme court case.
Timetable
ITV’s Robert Peston has posted on Twitter a guide to what will be happening when during the three-day supreme court hearing.
was unlawful. See attached for the details of this legal and constitutional blockbuster pic.twitter.com/agyIopeyAM
There is a bit more detail on the court sittings page on the supreme court’s website.
Written submissions
The supreme court has also published the written submissions from the parties.
Here is the 25-page one from Gina Miller (pdf).
Here is the 93-page one from Joanna Cherry (pdf).
Here is the 46-page one for the prime minister and the advocate general for Scotland (pdf).
A revived Stormont assembly could be part of the Brexit solution, the Northern Ireland secretary, Julian Smith, has said.
In Dublin, where he met the deputy prime minister, Simon Coveney, and a delegation from Sinn Féin, Smith was asked if Stormont would have a say on regulatory alignment on both sides of the border if Brexit talks collapsed. He replied:
I think it would be very helpful if the assembly was back up and running. I think there are opportunities through the consent mechanisms from the Good Friday agreement and I think the assembly and executive up and running could be part of that.
However, he declined to say whether the mechanism would require consensus from Stormont or a majority veto, which raises concerns that the Democratic Unionist party could block regulatory alignment. He went on:
I think you are now drawing me into an area which I am not responsible for. The Brexit negotiations are being led by the prime minister.
The Irish government has said a veto for any Stormont party would not be acceptable to the EU. It has also warned that a deal centring on agri-food alignment only would be doomed to failure as it only accounts for 30% of border trade and does not address other political and cultural issues in the backstop.
Joanna Cherry, the Scottish National party MP who led the legal challenge against prorogation at the Scottish court of session, told BBC Radio Scotland this morning she was “cautiously optimistic” about winning at the supreme court. She said:
I’m cautiously optimistic that [the Scottish ruling] will stand.
I think that Scotland’s supreme court reached the right decision here for the right reasons and I’m cautiously optimistic that at least a majority of the UK supreme court justices will follow.
I think Scotland does have a unique constitutional tradition but I think the way in which Scotland’s supreme court decided this case could easily be followed by the UK supreme court. And I think the heart of the matter was set out very well by Lord Drummond Young in Scotland when he said it’s not the job of the courts to subject government to political scrutiny, that’s the job of parliament, but where government prevents parliament from doing that job of scrutiny, the courts can step in to make sure that parliamentary democracy is restored.
I think that’s the heart of the Scottish judgment and I think that sets out the constitutional position as it should be and as I believe it is across the UK and that’s why I’m cautiously optimistic that the UK judges will follow the Scottish courts.
Gina Miller, the businesswoman and campaigner who brought one of the cases being decided by the supreme court, has issued this statement ahead of today’s hearing.
As with my first case, my supreme court case is about pushing back against what is clearly a dramatic overreach of executive power.
This is an issue that cuts across the political divides – and the arguments about the EU – and it has united remainers and leavers and people of all political complexions and none in opposition to it.
The precedent [Boris] Johnson will set – if this is allowed to stand – is terrifying: any prime minister trying to push through a policy that is unpopular in the House and in the country at large would from now on simply be able to resort to prorogation.
No one could ever have envisaged it being used in this way: this is a classic power grab.
The reason given for the prorogation was patently untrue and, since then, the refusal to come clean or provide any of the disclosures we have asked for has compounded the deception.
It is my view – and the view of a great many others – that Mr Johnson has gone too far and put our parliamentary sovereignty and democracy in grave danger by his actions.
Here are some pictures from outside the supreme court.
Given the wider context, Downing Street might have thought twice before deciding today was the day to send Robert Buckland, the attorney general, out into the studios to promote a plan for longer jail sentences for people who break the law. But that is what he was doing on the Today programme when he refused to rule out Boris Johnson suspending parliament for a second time before the Brexit deadline on 31 October. Asked if it was even “remotely conceivable” that Johnson might suspend (prorogue, to use the technical term) parliament again (MPs are due to return on 14 October), Buckland did not say no. Instead he replied:
Well, you know, it feels in politics, Harold Wilson said a week is a long time in politics, it seems like an hour is a long time in politics at the moment. For me to sit here and imagine what might happen at the end of October, I think, is idle. What I do know is, if we are able to, we will have a Queen’s speech in mid-October, there will be debate during that time, and a vote as well, perhaps a series of votes.
In an interview with the BBC’s Laura Kuenssberg yesterday, Johnson himself also refused to rule out suspending parliament again when asked directly to do so.
Joe Moor, who was the director of legislative affairs at Downing Street when Theresa May was prime minister, explained in an article in the Sunday Telegraph two days ago (paywall), that if the government wins the supreme court case starting today, it would be possible for Johnson to suspend parliament again after it returns on 14 October, at least until 6 November. It would have to be sitting on those two days because of an amendment passed to the Northern Ireland (Executive Formation) Act, Moor explained.
All of which is why today’s supreme court hearing is so important.
Here is my colleague Owen Bowcott’s overnight preview story.
Supreme court to hear claims suspension of parliament is unlawful
And here is his analysis of the issues at stake.
Supreme court hearing on suspension of parliament – key issues
There is a live feed of the hearing, so I will be covering it in detail. Undoubtedly it is likely to be heavy going – the supreme court is not the Old Bailey, and if you are not interested in arcane points of constitutional law, it might be a day to tune into the Lib Dem conference instead – but this is a case that could reset the boundaries between parliament and the executive, and curtail or expand Johnson’s Brexit options, so it is clearly of the utmost importance.
Here is the agenda for the day.
9.30am: Boris Johnson chairs cabinet.
10.30am: The supreme court begins the three-day hearing to decide whether Johnson’s lengthy suspension (prorogation, to use the technical term) of parliament was unlawful.
2.10pm: Jo Swinson, the Lib Dem leader, winds up her party conference with her keynote speech.
As usual, I will be covering breaking political news as it happens, as well as bringing you the best reaction, comment and analysis from the web, although I will mostly be focusing on the supreme court hearing. I plan to publish a summary when I wrap up.
You can read all the latest Guardian politics articles here. Here is the Politico Europe roundup of this morning’s political news. And here is the PoliticsHome list of today’s top 10 must-reads.
If you want to follow me or contact me on Twitter, I’m on @AndrewSparrow.
I try to monitor the comments below the line (BTL) but it is impossible to read them all. If you have a direct question, do include “Andrew” in it somewhere and I’m more likely to find it. I do try to answer questions, and if they are of general interest, I will post the question and reply above the line (ATL), although I can’t promise to do this for everyone.
If you want to attract my attention quickly, it is probably better to use Twitter.