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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
(31 minutes later)
Pannick says the PM cannot have discretion as to the depth of the powers he enjoys.
Lady Arden says the Fixed-term Parliaments Act allows for prorogation.
Pannick says he is not challenging the power of the government to prorogue. But, given the junior role of the executive, he is arguing that it is implicit in the power of the executive that it will not remove the power of scrutiny other than for a legitimate purpose.
He says ending one session and starting another is a legitimate purpose.
But he says it is not proper to prorogue for so long as to frustrate scrutiny. He says in this case prorogation had the effect of “frustrating the constitutional principle of parliamentary sovereignty and supremacy over the executive”.
Lord Hodge asks if obtaining political advantage automatically makes a motive improper.
Pannick says if the purpose is to prevent scrutiny by the executive, then the purpose is improper.
But he says there is nothing wrong with proroguing just to have a Queen’s speech.
Pannick quotes from this blog by Prof Mark Elliott, professor of public law the the University of Cambridge. He only quotes briefly from what it says - the judges have the whole thing in their bundle - but here is a passage summarising Elliott’s argument.
Far from requiring the court to determine whether the duration is excessive, the issue in Cherry and Miller (No 2) requires the court only to determine whether, to begin with, prorogation was undertaken for a purpose that was legally impermissible because it lies outside the range of purposes for which the power can lawfully be deployed. This is a crisp question of constitutional law concerning the scope of the discretionary power to prorogue, as distinct from a question about whether discretion has been lawfully exercised. Such a question of law, about the scope of the executive’s legal powers, is manifestly one that lies within the field of matters with which courts can properly deal.
The result is that to approach Cherry and Miller (No 2) in terms of whether the courts can stretch the bounds of justiciability in a way that facilitates judicial scrutiny of the exercise of the prorogation prerogative is misconceived. It is misconceived because the legal issue at stake is not one upon which the non-justiciability doctrine can properly bite. That doctrine is concerned with limiting judicial involvement in the evaluation of the exercise of governmental powers whose use is capable of giving rise to questions that are unsuited, under the separation of powers, to analysis by courts on legal grounds. The justiciability doctrine is, however, logically incapable of biting upon questions about whether a given power exists and, if so, what its legal boundaries are. Questions about the purposes for which legal powers can and cannot lawfully be used are legal questions about the scope of such powers. It is questions of precisely that nature which are raised by the Miller (No 2) and Cherry cases. Consequently, the non-justiciability doctrine has no relevant application — and the suggestion by the divisional court that the “political” nature of the issue shields it from judicial review is entirely wide of the mark. Whether the supreme court will be prepared to treat the matters before it as justiciable remains to be seen, but there is no good legal reason for treating them as non-justiciable.
Pannick is turning to the third of his three main arguments, relating to justiciability. (See 10.41am.)
This is probably the most important aspect of this case. If Pannick cannot convince the supreme court that the PM’s decision to prorogue was justiciable, it will throw out the case, as the high court in London did.
Pannick says examples of long prorogations given by the other side in this case relate to the first half of the 20th century, when conditions were very different.
A judge puts it to Pannick that, if parliament wanted to hold the government to account in September, it could have held a no-confidence vote.
Pannick says the executive is answerable to parliament on matters of politics, and answerable to the courts on matters of law.
He says whether or not parliament wanted to hold a no-confidence vote in September is not relevant to the legality of what the PM did.
Pannick describes prorogation as a “pre-emptive strike” that “takes parliament out of the game” for the whole period of prorogation.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.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.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 says the junior body in the constitution, the executive, 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: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.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 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.
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.
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.
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.