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Brexit: Supreme court begins hearing case over Johnson's suspension of parliament – live news Brexit: Supreme court begins hearing case over Johnson's suspension of parliament – live news
(40 minutes later)
Pannick describes prorogation as a “pre-emptive strike” that “takes parliament out of the game” for the whole period of prorogation.
He says the sovereignty of parliament is the principle underlying the whole constitution.
But the PM’s prorogation sought to undermine this sovereignty, he says.
Pannick says the junior body in the constitution cannot remove the power of the senior partner, parliament, to do its job, particularly when that job is scrutinising the executive.
Pannick refers the court to what Lord Drummond Young said about the role of parliament in paragraph 99 of the Scottish judgment (pdf). This is what that paragraph says:
Parliament has a second equally important function, namely that of holding the executive to account. The policies and actions of the government are subject to scrutiny in parliament by members of parliament. The United Kingdom operates by a system of representative democracy, and it is members of parliament, representing the interests of their constituents and the wider interests of the country, who are responsible for ensuring that the executive operates in the national interest. In particular, parliament is responsible for ensuring that the policies of the executive are properly considered in a democratic body, and that the actions of the executive are subject to critical scrutiny, with representatives of the government reporting on and explaining those actions. In this way parliament performs the fundamental role of protecting the country from the arbitrary exercise or abuse of executive power. The importance of the latter function is obvious, both in the abstract and in the light of the events during the 17th century that gave rise to the principle of parliamentary sovereignty.
Pannick is still addressing the argument that a power can only be used for its proper purpose.
He says, in constitutional terms, ministers are the junior partner. Parliament is the senior partner, he says.
Back to the supreme court, and this is from David Allen Green, the FT’s legal commentator.
Note how Pannick has not yet even covered the justiciability point yetSkilfulBy drawing the justices in to the substance of the case (and the justices are very engaged), he makes the justiciability issue seem unimportantSequencing in advocacy can matter26.
And this is from the BBC’s Dominic Casciani.
This is a really good point. The PM’s best argument is that the court has no role in considering how Parliament is prorogued. Lord Pannick has ignored it & cracked on with a story of Boris Johnson and Brexit skullduggery: https://t.co/O9AjQmGNvF
Turning away from the supreme court for a moment, Michael Gove, the Cabinet Office minister in charge of no-deal Brexit planning, has been asked to explain to MPs differences between Operation Yellowhammer documents. As the Press Association reports, Hilary Benn, the Labour chair of the Brexit committee said the papers the committee received were called “reasonable worst case scenario”, whereas a version obtained by the Sunday Times was called “base scenario”. He urged Gove to share further documents about no-deal preparations with Parliament. In a letter to Gove Benn wrote:
I would be grateful if you could explain why the document we received is entitled the ‘reasonable worst case scenario’, whereas it has been reported that a very similar if not identical version obtained by the Sunday Times was entitled the ‘base scenario’.
Could you set out and explain any difference between the two documents.
Benn also called on Gove to release papers he told the committee he would about revised assessments for a no-deal Brexit.
Here is the text of Benn’s letter.
Benn could also have asked Gove why he described the Operation Yellowhammer assessment last week as a “reasonable worst case scenario”, when Boris Johnson, in his article in the Daily Telegraph yesterday (paywall), described it as “a very worst case scenario”. That implies something different.
Lady Hale asks which bills were lost during prorogation.
Pannick says he will find out.
(There is a list here, on the parliament website. Look for the government bills in the 2017-19 session that did not get royal assent, indicated by the purple circle with RA on it.)
UPDATE: There is a good BBC article on the bills that were lost here.
Pannick says the five-week prorogation meant parliament could not legislate during this period, and it could not ask questions to ministers during this period, or hold debates.
A judge asked if there was any evidence that questions could not be asked. Pannick says that is how parliament operates; there are no questions during prorogation.
He refers the court of a House of Commons briefing paper (pdf). And he reads out this extract from it.
During prorogation parliament does not meet. This means that legislation cannot be considered or introduced by MPs and peers. Debates in the chambers or in Westminster Hall are not held, written and oral parliamentary questions cannot be asked, and committees do not carry-out their usual business of inquiries and evidence-taking.
This temporary suspension of activity is not normally significant, as a new session typically begins shortly thereafter. For a longer prorogation, however, this suspension of activity weakens the ability of parliamentarians to hold the government to account.
From the BBC’s Dominic CascianiFrom the BBC’s Dominic Casciani
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.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 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.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.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.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.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.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.)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.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.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.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.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. The courts in addition should be prepared in the circumstances to draw an inference from the absence of any evidence on the government’s side by way of a witness statement.
Pannick says if the PM had provided a witness statement he would have been open to cross-examination. We submit that on all the material the court should conclude that, but for the prime minister’s wish to avoid parliamentary control, he would not have recommended to Her Majesty a prorogation for a period of longer than five weeks, but he would have recommended a substantially shorter period ... as had occurred on every occasion ... in the last 40 years.
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.
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.
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.
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 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 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.
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.
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.
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.
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.
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.
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.
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.
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.
He is speaking on behalf of Gina Miller.
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.
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 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.