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Brexit: Juncker says risk of no deal 'palpable' as MEPs debate UK's departure from EU - live news Brexit: Supreme court resumes hearing to decide if Boris Johnson's suspension of parliament lawful - live news
(44 minutes later)
Lord Kerr asks Eadie if he accepts that it is up to the court to decide the limits of prerogative powers.
Eadie says he does.
Q: And do you accept that prerogative powers can be limited by fundamental rights?
Eadie does accept that.
He says it is for the court to decide all sorts of issues relating to the prerogative, including its limits.
Q: Do you accept that the exercise of the prerogative to prorogue parliament can limit the ability of parliament to scrutinise the effective?
Eadie says prorogation “has the effects that it has”.
But he would argue this is a “well-established constitutional function”, exercised and to be exercised by the executive.
He says he wants to analyse whether it is possible to apply standards to the way prorogation is used, and whether it is proper for the courts to intervene.
Q: So you do not accept the argument that the prorogation in this case went beyond the proper use of this power.
Eadie says he does not accept that. He says it was a political judgment.
Eadie cites approvingly paragraph 47 in the judgment (pdf) from the high court in London, which ruled that the prorogation decision was non-justiciable. He says he particularly recommends the second sentence (which I’ve marked in bold).
Almost all important decisions made by the executive have a political hue to them. In the present context of non-justiciability, the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the executive’s decision or action. That is reflected in the last sentence of the passage from Lord Bingham’s speech in A v Secretary of State just quoted. It was stated more directly in the joint judgment of Lord Neuberger, Lord Sumption and Lord Hodge in Shergill v Khaira [2015] AC 359 at [40]: “The issue was non-justiciable because it was political. It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political.”
Lady Hale, the president of the court, intervenes. She says her computer isn’t working. So, she tells Eadie, if he starts citing documents, she may be in trouble.
From the legal commentator Joshua Rozenberg
Eadie currently citing decided cases — Gibson, Wheeler, McClean — from which he infers that rationale for courts refusing to enter the political field flows from the limits on their ability to apply judicial or manageable standards to decide lawfulness of exercise of prerogative
Eadie is running through some of the cases cited in the government’s written submission (pdf) about how certain decisions are not justiciable.
He has just quoted from a judgment by Lord Bingham cited in paragraph 66. Bingham wrote.
It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain.
Eadie explains that parliament has passed some legislation on prorogation. But in areas where there is no legislation, the prerogative remains. That means it can be exercised by HM on the advice of ministers. It does not follow that it is always subject to judicial review.
Sir James Eadie QC has started making his case.
He will be running through arguments set out in the government’s written submission (pdf).
Sir James Eadie, who is representing the government, is addressing the court this morning. He will be arguing that the courts do not have the right to rule the suspension (prorogation) of parliament unlawful because Boris Johnson was using a prerogative power that is not justiciable (subject to adjudication by the courts).
Turning back to the European parliament for a moment, here is the text of the Brexit motion that MEPs will be voting on.
And here is an extract from what it says about a no-deal Brexit.
The European parliament ...
Notes that there can be no transition period in the absence of the withdrawal agreement nor any ‘mini-deals’ put in place to help mitigate the disruption of a disorderly withdrawal of the UK from the EU;
Stresses that further negotiations between the EU and the UK after the UK has withdrawn from the EU without a deal can only take place on condition that the UK honours its obligations and commitments in respect of citizens’ rights, the financial settlement and the Good Friday agreement in all its parts;
Notes that in the case of a ‘no-deal exit’, the UK’s financial and other obligations will still exist; affirms that in such a case it will refuse to give consent to any agreement or agreements between the EU and the UK unless and until the UK honours its commitments;
Recalls that, once such commitments are met, future EU-UK relations negotiations will require strong safeguards and level playing field provisions with a view to safeguarding the EU’s internal market and avoiding placing EU firms at a potential unfair competitive disadvantage; reiterates in that respect the conditions set out in its resolution of 14 March 2018 not least as regards ensuring high levels of environmental, employment and consumer protection; notes that any free trade agreement that fails to respect such levels of protection would not be ratified by the European parliament.
I posted a version of this yesterday. But I will use it again, because it contains links that you may find useful if you are following the supreme court hearing in detail.
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
Here is the timetable for hearings 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).
And here are some more extracts from what Michel Barnier, the EU’s chief Brexit negotiator, told MEPs in his speech. Some of the extracts I have translated using DeepL.And here are some more extracts from what Michel Barnier, the EU’s chief Brexit negotiator, told MEPs in his speech. Some of the extracts I have translated using DeepL.
Barnier said that, even if the UK were to leave the EU without a deal, the problems at the heart of the Brexit talks would still have to be addressed. He said:Barnier said that, even if the UK were to leave the EU without a deal, the problems at the heart of the Brexit talks would still have to be addressed. He said:
We want this agreement to protect the rights of the 4.5m European citizens in the United Kingdom and British people in the 27 member states. We want this agreement to protect the rights of the 4.5 million European citizens in the United Kingdom and British people in the 27 member states.
We want to secure the future for all project leaders who benefit from European funds in the territories. That is why we have decided with the United Kingdom that everything that was decided at 28 should be well paid, to the end, at 28.We want to secure the future for all project leaders who benefit from European funds in the territories. That is why we have decided with the United Kingdom that everything that was decided at 28 should be well paid, to the end, at 28.
We want to ensure peace and stability in Ireland.We want to ensure peace and stability in Ireland.
And at the end of the day, we want to create the conditions of trust necessary to build our future relationship, as outlined in the political declaration.And at the end of the day, we want to create the conditions of trust necessary to build our future relationship, as outlined in the political declaration.
If the United Kingdom leaves without agreement, all these issues will not disappear. We will have to resolve them in any event, prior to a future partnership with the United Kingdom.If the United Kingdom leaves without agreement, all these issues will not disappear. We will have to resolve them in any event, prior to a future partnership with the United Kingdom.
He said the EU’s commitment to the backstop was “not ideological” but “totally pragmatic”. He said it was designed to achieve three things.He said the EU’s commitment to the backstop was “not ideological” but “totally pragmatic”. He said it was designed to achieve three things.
We do not want a physical border to return to the island of Ireland. We want to protect the Good Friday agreement in all its dimensions.We do not want a physical border to return to the island of Ireland. We want to protect the Good Friday agreement in all its dimensions.
We must preserve the integrity of the single market.We must preserve the integrity of the single market.
We want to maintain the “all-island economy” and North-South cooperation provided for in the Good Friday agreement. Our mapping exercise with the British authorities shows how much this north-south cooperation is governed by law, supported by European policies and budgets from the beginning.We want to maintain the “all-island economy” and North-South cooperation provided for in the Good Friday agreement. Our mapping exercise with the British authorities shows how much this north-south cooperation is governed by law, supported by European policies and budgets from the beginning.
He said that UK government had said what it did not like about the backstop, but that that on its own was not enough. The EU needed “legally operational solution”, he said.He said that UK government had said what it did not like about the backstop, but that that on its own was not enough. The EU needed “legally operational solution”, he said.
He urged people not to underestimate the consequences of a no-deal Brexit. He said:He urged people not to underestimate the consequences of a no-deal Brexit. He said:
I would recommend nobody underestimates the consequences of no-deal for UK first and foremost, but for us as well ... The consequences of Brexit are not theoretical. They are considerable.I would recommend nobody underestimates the consequences of no-deal for UK first and foremost, but for us as well ... The consequences of Brexit are not theoretical. They are considerable.
The European commission has just released the texts of the speeches by Jean-Claude Juncker and Michel Barnier. They are in the original French. English versions should be available later.The European commission has just released the texts of the speeches by Jean-Claude Juncker and Michel Barnier. They are in the original French. English versions should be available later.
Here is a fuller account of what Jean-Claude Juncker, the European commission president, told the European parliament in his speech earlier. (See 8.17am.)Here is a fuller account of what Jean-Claude Juncker, the European commission president, told the European parliament in his speech earlier. (See 8.17am.)
Juncker said that the risk of a no-deal Brexit was palpable. He said that there was “very little time remaining” and that he was not sure the UK and the EU could reach a deal. Referring to his meeting with Boris Johnson in Luxembourg on Monday, he said:Juncker said that the risk of a no-deal Brexit was palpable. He said that there was “very little time remaining” and that he was not sure the UK and the EU could reach a deal. Referring to his meeting with Boris Johnson in Luxembourg on Monday, he said:
The prime minister assured us that he continues to want an agreement. But, whatever happens, the United Kingdom will leave the European Union on 31 October with or without an agreement. That is why the risk of a no deal is palpable ...The prime minister assured us that he continues to want an agreement. But, whatever happens, the United Kingdom will leave the European Union on 31 October with or without an agreement. That is why the risk of a no deal is palpable ...
The commission is prepared to work day in day out, morning until night - with a few breaks - to try to find the technical and political solutions we need but I am not sure that we will get there.The commission is prepared to work day in day out, morning until night - with a few breaks - to try to find the technical and political solutions we need but I am not sure that we will get there.
There is very little time remaining but what I do know is that we have to keep trying.There is very little time remaining but what I do know is that we have to keep trying.
He said whether or not there was a deal would come down to decisions taken by the UK.He said whether or not there was a deal would come down to decisions taken by the UK.
He confirmed that he was open to an alternative to the backstop. But he said that no real progress had been made in the talks with the UK, because they had not tabled an alternative plan. He said:He confirmed that he was open to an alternative to the backstop. But he said that no real progress had been made in the talks with the UK, because they had not tabled an alternative plan. He said:
I said to to Prime Minister Johnson that I had no emotional attachment the safety net, to the backstop, but I stated that I stand by the objectives that it is designed to achieve. That is why I called on the prime minister to come forward with operational proposals, in writing, for practical steps which would allow us to achieve those objectives. Now, until such time as those proposals have been presented, I will not be able to tell you, looking your straight in the eye, that any real progress has been achieved.I said to to Prime Minister Johnson that I had no emotional attachment the safety net, to the backstop, but I stated that I stand by the objectives that it is designed to achieve. That is why I called on the prime minister to come forward with operational proposals, in writing, for practical steps which would allow us to achieve those objectives. Now, until such time as those proposals have been presented, I will not be able to tell you, looking your straight in the eye, that any real progress has been achieved.
But he also described his talks with Johnson as “in part positive”. He said:But he also described his talks with Johnson as “in part positive”. He said:
What I can tell you [about the lunch with Johnson] is - and this perhaps runs counter to many press articles that have appeared in the UK - I can tell you that the talks we had were friendly, constructive and in part positive.What I can tell you [about the lunch with Johnson] is - and this perhaps runs counter to many press articles that have appeared in the UK - I can tell you that the talks we had were friendly, constructive and in part positive.
He signalled that the EU would not abandon Ireland as the talks continued. He said:He signalled that the EU would not abandon Ireland as the talks continued. He said:
The EU has shown great unity of purpose, with solidarity with the member states most affected. This unity is our most precious resource and our greatest asset. It will continue to guide me over the next weeks and I’m sure it will continue to guide this house also in the future.The EU has shown great unity of purpose, with solidarity with the member states most affected. This unity is our most precious resource and our greatest asset. It will continue to guide me over the next weeks and I’m sure it will continue to guide this house also in the future.
Nigel Farage, the Brexit party leader, is speaking in the debate now. He says Jean-Claude Juncker’s “emollient” tone suggests the UK and the EU are “very close” to agreeing a deal at next month’s EU summit. But, even without the backstop, this is a very bad deal, he says.Nigel Farage, the Brexit party leader, is speaking in the debate now. He says Jean-Claude Juncker’s “emollient” tone suggests the UK and the EU are “very close” to agreeing a deal at next month’s EU summit. But, even without the backstop, this is a very bad deal, he says.
He says the UK cannot now rely on the “good faith” of the EU. That was illustrated by the behaviour of the “pipsqueak prime minister of Luxembourg”, he says. He says Xavier Bettel, the PM of Luxembourg, set out to “humiliate” Boris Johnson on Monday. And yet Xavier was “greeted like a hero” when he visited President Macron in Paris the following day, Farage says.He says the UK cannot now rely on the “good faith” of the EU. That was illustrated by the behaviour of the “pipsqueak prime minister of Luxembourg”, he says. He says Xavier Bettel, the PM of Luxembourg, set out to “humiliate” Boris Johnson on Monday. And yet Xavier was “greeted like a hero” when he visited President Macron in Paris the following day, Farage says.
He says the only solution is a clean-break Brexit. Then the two sides can have a grown-up conversation about the future, he says.He says the only solution is a clean-break Brexit. Then the two sides can have a grown-up conversation about the future, he says.
The only way forward now is to deliver on the referendum is for a clean break Brexit. Once we have done that we will have a grown-up conversation about trade and about the way forward.The only way forward now is to deliver on the referendum is for a clean break Brexit. Once we have done that we will have a grown-up conversation about trade and about the way forward.
These are from my colleague Jennifer Rankin.These are from my colleague Jennifer Rankin.
Masses of empty seats as Brexit debate in the European Parliament begins.Brexit party out in force, cheering, when Brexit mentioned. pic.twitter.com/lbLth1ObD5Masses of empty seats as Brexit debate in the European Parliament begins.Brexit party out in force, cheering, when Brexit mentioned. pic.twitter.com/lbLth1ObD5
The European parliament Brexit debate is a bit of a Punch and Judy show. Jeering and heckling from the Brexit Party. Applause from UK remainers and other MEPs.Note also how Guy Verhofstadt uses French pronunciation of Eurosceptics - Euroseptics.The European parliament Brexit debate is a bit of a Punch and Judy show. Jeering and heckling from the Brexit Party. Applause from UK remainers and other MEPs.Note also how Guy Verhofstadt uses French pronunciation of Eurosceptics - Euroseptics.
The European parliament debate was opened by the Finnish European affairs minister Tytti Tuppurainen. She was there to represent the European council, because Finland holds the EU presidency.The European parliament debate was opened by the Finnish European affairs minister Tytti Tuppurainen. She was there to represent the European council, because Finland holds the EU presidency.
She said the EU was facing a “rather bleak situation”. She went on:She said the EU was facing a “rather bleak situation”. She went on:
In July the UK got a new government and a new prime minister. Unfortunately it is increasingly clear that it has not helped to clarify the situation or the UK’s negotiating position.In July the UK got a new government and a new prime minister. Unfortunately it is increasingly clear that it has not helped to clarify the situation or the UK’s negotiating position.
When it comes to the most difficult questions - such as the Irish border - the UK has not tabled any new concrete proposals yet.When it comes to the most difficult questions - such as the Irish border - the UK has not tabled any new concrete proposals yet.
She said the UK parliament remained divided and the UK government was still insisting on its negotiating red lines.She said the UK parliament remained divided and the UK government was still insisting on its negotiating red lines.
We are faced with more, rather than less, uncertainty.We are faced with more, rather than less, uncertainty.
And she also said a no-deal Brexit remained “a quite likely outcome”.And she also said a no-deal Brexit remained “a quite likely outcome”.
Geoffrey Van Orden, the leader of the British Conservatives in the European parliament and a member of the European Conservatives and Reformist Group, is speaking now. He says the UK government wants a deal, but it must leave on 31 October.Geoffrey Van Orden, the leader of the British Conservatives in the European parliament and a member of the European Conservatives and Reformist Group, is speaking now. He says the UK government wants a deal, but it must leave on 31 October.
He criticises the European parliament’s Brexit steering group, which is headed by Guy Verhofstadt. He says it is not representative of the parliament.He criticises the European parliament’s Brexit steering group, which is headed by Guy Verhofstadt. He says it is not representative of the parliament.
Marco Zanni, the Italian League MEP leader of the far-right Identity and Democracy group in the European parliament, defends Brexit. He says the EU should respect the decision taken by Britain, which has one of the oldest democratic parliaments in the world.Marco Zanni, the Italian League MEP leader of the far-right Identity and Democracy group in the European parliament, defends Brexit. He says the EU should respect the decision taken by Britain, which has one of the oldest democratic parliaments in the world.
Philippe Lamberts, co-leader of the Greens-European Free Alliance in the European parliament, told MEPs that if the UK requested a Brexit extension, the EU should be willing to grant it.
Guy Verhofstadt, from the liberal Renew group in the European parliament, says Brexit has led to support for the EU going up.
He criticises the way the UK is handling the rights of EU nationals in Britain. There are examples of EU nationals being refused settled status even though they have been living in the country for one or two decades.
He says Boris Johnson likes to compare himself to movie characters, like the Incredible Hulk. But he should choose another role model, Verhofstadt says. He says Johnson should act like the nanny in Mrs Doubtfire.
He says he knows the British worry about the backstop. But if they don’t like it, perhaps they should give it a different name - like the safety net.
He says it would not work if one side could leave unilaterally.
He says some in the UK think that the EU will back down at the last moment. But that
We are not stupid. It means we will not kill our own companies. We will defend our own companies ... We will never accept what people call a Singapore by the North Sea.
Verhofstadt says that Brexit has caused deep divisions in the UK. But the EU will not let itself be divided in the same way, he says.
In the debate Iratxe García-Pérez, the head of the socialist group in the European parliament, said that MEPs would be open to the UK holding a second referendum. And she criticised the UK home secretary, Priti Patel, for saying that free movement would end immediately after 31 October.
Manfred Weber, leader of the centre-right EPP group in the European parliament, said in his speech that Brexiters claimed that Brexit would weaken the EU. But three years on, the EU remains strong, he said. He said it was the UK that was losing out, because jobs were leaving.
This is from Bloomberg’s Nikos Chrysoloras.
The pound, following Juncker’s “palpable” comment pic.twitter.com/G3raFS9kBp
Barnier says no one should underestimate the costs of a no-deal Brexit.
He says he wants to create the conditions necessary to build a future relationship.
If the UK leaves without a deal, these questions do not disappear. They still remain - issues like peace in Ireland, citizens’ rights, budgetary issues. They would all need to be settled before the UK and the EU could agree a future relationship.
He says, three years after the EU referendum, we should not be “pretending to negotiate”. We need to move forward, he says.
Turning to the future relationship, Barnier says the political declaration opens up a path towards a future relationship of broad cooperation.
He says it currently points towards a free trade agreement. But the text would also allow a closer relationship, he says.
He says the UK wishes to revist the commitments made by Theresa May about maintaining a level playing field after Brexit (ie, remaining aligned to EU regulations.)
Barnier says the level of ambition reached by the EU will depend on the guarantees it gets from the UK, referring to things like social, environmental and competition law.
Barnier says the EU is willing to work “day and night” to get a deal with the UK.
Michel Barnier, the EU’s chief Brexit negotiator, is speaking in the debate now.
He says Ireland is the big problem in the Brexit talks, because that is where Brexit could do most harm.
He says the UK has said what it does not like about the backstop. But is has not proposed an operable alternative.
He gives an example of the problem. Any cattle, or other animals, entering Ireland through Northern Ireland enter the whole of the EU single market. He says the EU has a long memory of potential safety problem (a reference to BSE, presumably). That is why health checks are so important.
Good morning. It is day two of the supreme court hearing to decide if Boris Johnson’s five-week suspension (prorogation) of parliament was lawful, and I’ll be covering the hearing in detail when it starts at 10.30am. Here is our overnight story about yesterday’s hearing.
Brexit: government declines to rule out fresh prorogation if it loses case
The UK parliament is not sitting at the moment, but the European parliament is and this morning it has just started a debate on Brexit. Jean-Claude Juncker, the president of the European commission, has just finished his speech. He said that the risk of a no-deal Brexit was “palpable” but that his talks with Boris Johnson on Monday were constructive. He said:
I can tell you that the talks we had were friendly, constructive and, in part, positive.
I will post more from his speech soon.
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.
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