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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
(32 minutes later)
Keen says the Scottish court accepted that the principle of non-justiciability does apply. What is at stake is whether the decision to prorogue is justiciable.
Keen starts by saying he agrees with with inner house of the court of session about this case not hinging on any particular aspect of Scots law. He says in this case the relevant constitution law applies to the UK as a whole.
Back in the supreme court the afternoon proceedings are starting.
Lord Keen QC, the advocate general for Scotland, is speaking now for the UK government. He is asking the court to reject the judgment of the inner court of Scotland’s court of session.
Ruth Davidson, the former Scottish Conservative leader, has said she does not know whether or not Boris Johnson really believes in Brexit. In an interview with ITV’s Lorraine, asked about David Cameron’s claim that Johnson only joined the leave campaign to further his own career, she said:
I don’t know what’s in [Johnson’s] heart. I don’t know whether he desperately believes in Brexit or he doesn’t believe in Brexit and I’m not going to pretend that I do. But I think people can tell if politicians are basically telling the truth or not and if they can tell if they mean what they say.
Davidson said that one of the reasons she quit as Scottish Tory leader was because she found it hard to reconcile her political view that, in the light of the referendum result, Brexit should go ahead with her personal opposition to leaving the EU.
She also said she did not know why Johnson has prorogued parliament for so long. Asked about this, she said:
I think it was done in a bad way but the idea that a prime minister doesn’t suspend parliament in order to bring forward a Queen’s speech and a legislative agenda – up until recently that happened almost every year.
I was quite close to David Cameron and Theresa May, I’m not close to Boris Johnson, I’m not going to pretend that I’ve ever been part of his inner circle – I haven’t – so I don’t know why the government chose to do that and that’s one of the things the judges are going to be deciding, and what the Scottish case looked at.
Sir Edward Leigh, the veteran Conservative, has sent an email to MPs explaining why they should vote for him as next Speaker. He would treat them as grown-ups, he says.
I would be strictly impartial and deaf to any partisan influence. I would, in quiet dignity, dress, and demeanour, model myself on the present Lord Speaker. We should treat MPs as grown-ups and let them know when they will be called at the beginning of debates. The Speaker must always be scrupulously fair and polite to colleagues, speaking only to effect and briefly and submerge his personality into the role.
I would want to be a Speaker who seeks to unite the house in robust scrutiny. A Speaker who speaks only to good and powerful effect and who is the calm, self-effacing voice of the house.
Leigh also says he would be in favour of abolishing September sittings – which might get him Boris Johnson’s vote, in view of the fact Johnson thinks these are an unnecessary “girly swot” initiative.
Wake Up and Vote, a campaign that tried to increase the youth turnout in the EU referendum, has been fined £1,800 by the Electoral Commission for not submitting a full spending return. It said that it spend £66,383 during the campaign. But it also jointly funded an advertising campaign with DDB UK, which cost a total of £75,813, and under electoral rules it should have including the joint spending in its own campaign spending return.Wake Up and Vote, a campaign that tried to increase the youth turnout in the EU referendum, has been fined £1,800 by the Electoral Commission for not submitting a full spending return. It said that it spend £66,383 during the campaign. But it also jointly funded an advertising campaign with DDB UK, which cost a total of £75,813, and under electoral rules it should have including the joint spending in its own campaign spending return.
Here is my colleague Owen Bowcott’s story about the opening of the supreme court prorogation case.Here is my colleague Owen Bowcott’s story about the opening of the supreme court prorogation case.
Johnson's suspension of parliament 'unlawful abuse of power'Johnson's suspension of parliament 'unlawful abuse of power'
And this is how it starts.And this is how it starts.
Boris Johnson’s motive for proroguing the Commons for five weeks was “to silence parliament for that period”, the supreme court has been told at the opening of an emergency appeal.Boris Johnson’s motive for proroguing the Commons for five weeks was “to silence parliament for that period”, the supreme court has been told at the opening of an emergency appeal.
The prime minister’s extended suspension of debate was carried out for an “improper purpose” in order to “avoid the risk of parliament undermining the policies of his executive”, said Lord Pannick QC, who was representing the businesswoman and legal campaigner Gina Miller.The prime minister’s extended suspension of debate was carried out for an “improper purpose” in order to “avoid the risk of parliament undermining the policies of his executive”, said Lord Pannick QC, who was representing the businesswoman and legal campaigner Gina Miller.
Before the arguments formally began in central London, Lady Hale, the president of the supreme court, said it was facing “serious and difficult questions”. That was evidenced, she said, “by the fact that three senior judges in Scotland have reached a different conclusion to three senior judges in England and Wales”.Before the arguments formally began in central London, Lady Hale, the president of the supreme court, said it was facing “serious and difficult questions”. That was evidenced, she said, “by the fact that three senior judges in Scotland have reached a different conclusion to three senior judges in England and Wales”.
Boris Johnson spoke to Angela Merkel, the German chancellor, this morning, Downing Street has said. They spoke about Saudi Arabia and Iran, but also about Brexit. According to Number 10, this is what was said on that topic.Boris Johnson spoke to Angela Merkel, the German chancellor, this morning, Downing Street has said. They spoke about Saudi Arabia and Iran, but also about Brexit. According to Number 10, this is what was said on that topic.
On Brexit, the prime minister reiterated that the UK and the EU have agreed to accelerate efforts to reach a deal without the backstop which the UK parliament could support, and that we would work with energy and determination to achieve this ahead of Brexit on 31 October.On Brexit, the prime minister reiterated that the UK and the EU have agreed to accelerate efforts to reach a deal without the backstop which the UK parliament could support, and that we would work with energy and determination to achieve this ahead of Brexit on 31 October.
Number 10 said Johnson and Merkel would speak again at the UN general assembly in New York next week.Number 10 said Johnson and Merkel would speak again at the UN general assembly in New York next week.
Pannick says, if this issue is not justiciable, people have to ask what might happen if another PM were to prorogue parliament for six months or for a year.Pannick says, if this issue is not justiciable, people have to ask what might happen if another PM were to prorogue parliament for six months or for a year.
And he says it is no good referring to Dicey for guidance on this because he was writing in another era. And Dicey said something like that would be most unconstitutional.And he says it is no good referring to Dicey for guidance on this because he was writing in another era. And Dicey said something like that would be most unconstitutional.
Pannick says this is a legal question. And legal questions are for the courts to determine.Pannick says this is a legal question. And legal questions are for the courts to determine.
He says the only remedy he is seeking is a declaration that the PM’s advice was unlawful.He says the only remedy he is seeking is a declaration that the PM’s advice was unlawful.
He says the government, in its submission, says the PM will comply with the declaration of the court.He says the government, in its submission, says the PM will comply with the declaration of the court.
Pannick concludes by apologising for over-running his time by a few minutes, eating into the time available for lunch.Pannick concludes by apologising for over-running his time by a few minutes, eating into the time available for lunch.
And now the court adjourns until 2pm.And now the court adjourns until 2pm.
Pannick says it is more difficult to apply a Padfield principle to a prerogative power than to a statutory power.Pannick says it is more difficult to apply a Padfield principle to a prerogative power than to a statutory power.
But it is still possible, he says.But it is still possible, he says.
And he says there is an important principle at stake - whether the exercise of such a power frustrates the purposes for which such a power applies.And he says there is an important principle at stake - whether the exercise of such a power frustrates the purposes for which such a power applies.
In the supreme court Pannick is winding up.In the supreme court Pannick is winding up.
These are from the BBC’s Dominic Casciani and the legal commentator Joshua Rozenberg.These are from the BBC’s Dominic Casciani and the legal commentator Joshua Rozenberg.
In final 10 minutes of session, Lord Pannick turns to government’s key argument - that the case cannot even be considered by judges. Tactically, he is trying to diminish its importance - he wants the court to focus on PM’s intention and its effect on Parliament’s sovereignty.In final 10 minutes of session, Lord Pannick turns to government’s key argument - that the case cannot even be considered by judges. Tactically, he is trying to diminish its importance - he wants the court to focus on PM’s intention and its effect on Parliament’s sovereignty.
No surprise, he cites lots of case law arguing judges have the power to scrutinise ministerial prerogative powers which are not limited by clear acts of Parliament.No surprise, he cites lots of case law arguing judges have the power to scrutinise ministerial prerogative powers which are not limited by clear acts of Parliament.
Pannick is rattling through some decided cases (“authorities”) that the PM relies on, not remotely thrown by the fact that he has just a few minutes left. When questioned, he can tell you exactly what these cases decided.Pannick is rattling through some decided cases (“authorities”) that the PM relies on, not remotely thrown by the fact that he has just a few minutes left. When questioned, he can tell you exactly what these cases decided.
The prime minister’s spokesman said the supreme court case was mentioned by Boris Johnson during this morning’s cabinet meeting. “He mentioned the fact that the court case was ongoing and that we are confident in our arguments,” the spokesman said.The prime minister’s spokesman said the supreme court case was mentioned by Boris Johnson during this morning’s cabinet meeting. “He mentioned the fact that the court case was ongoing and that we are confident in our arguments,” the spokesman said.
As the Press Association reports, asked whether Johnson should either give evidence or submit an affidavit to the court, the spokesman said:As the Press Association reports, asked whether Johnson should either give evidence or submit an affidavit to the court, the spokesman said:
I am not going to comment on an ongoing court case. The way court cases begin is that one side will set out their position and then there will be a response for the government. The court is the right forum for this to take place.I am not going to comment on an ongoing court case. The way court cases begin is that one side will set out their position and then there will be a response for the government. The court is the right forum for this to take place.
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.
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, 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:
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.