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Brexit: Supreme court resumes hearing to decide if Boris Johnson's suspension of parliament lawful - live news Brexit: Supreme court resumes hearing to decide if Boris Johnson's suspension of parliament lawful - live news
(35 minutes later)
Eadie is now making other arguments as to why a decision to prorogue parliament should be seen as a non-justiciable matter.
He says prorogation is a decision about the business of parliament, when it sits.
And he says prorogation is also very similar to dissolution – a decision that is non-justiciable.
(Prorogation is what happens when parliament gets suspended before a new Queen’s speech. It normally happens once a year. Dissolution is what happens when parliament gets suspended before a general election. In theory that should only happen every five years.)
Here is the passage from the government’s submission giving other examples of prorogation being used for political purposes. This is the paragraph Eadie referred to a moment ago.
The history of the power to prorogue parliament supports the fact that it has been used for political purposes, including for the purpose of restricting the time otherwise available to debate legislation, and for prolonged periods, including at moments of political importance and when the government of the day lacked a majority in the House of Commons:
(1) On 18 September 1914, shortly after the outbreak of the first world war, parliament was prorogued until 27 October, with the King’s speech on prorogation noting that the circumstances “call for action not speech”. On 16 October 1914, parliament was further prorogued by proclamation until 11 November 1914. In total, parliament was prorogued for a period of 53 calendar days during wartime.
(2) On 1 August 1930, parliament was prorogued until 28 October, a period of 87 days. This was during the onset of the great depression following the 1929 Wall Street Crash and when the then government of James Ramsay MacDonald did not command a majority in the House of Commons.
(3) Under s.2 of the Parliament Act 1911 as enacted, a non-money bill could only be enacted without the consent of the Lords if it was passed in three successive sessions by the Commons. As noted below, each session of parliament conventionally lasts for approximately a year. To facilitate the speedy passage of the Parliament Act 1949, the government arranged for a session of minimal length in 1948. Parliament was prorogued on 13 September 1948 to the following day. Following the passage of the parliament bill by the Commons, it was then prorogued again on 25 October 1948. The King’s speech which closed the session expressly noted that “The two houses have again failed to agree on the bill to amend the Parliament Act, 1911.”
Eadie says a decision to prorogue parliament is “fundamentally political”.
He says the government has given examples, in paragraph 71 of its submission (pdf).
Lord Wilson asks if the court is being asked to intervene in a political decision, or to decide if it clashes with a precious legal principle.
Eadie says sometimes precious principles of public law need to give way when the prerogative is being exercised.
Q [From Wilson]: I was thinking of a bigger purpose. If anyone is well placed to defend parliamentary sovereignty, it is us here. Does the use of the prerogative here collide with a principle that we are obliged to uphold?
Eadie says of course parliamentary sovereignty is important. But it depends on what it means. “Paradigmatically” it can make and unmake its own laws, he says.
He says he will argue that the phrase “parliamentary sovereignty” should not be too widely bandied about without people saying what it means.
Lord Kerr asks what would happen if a PM did want to stifle debate. If he decided to prorogue for one year, would that be appropriate?
Eadie says this was the question Lord Pannick raised yesterday. He says he will come back to this. But part of the answer is to remind the court of what the Canadian supreme court said about how you should be very careful about testing principles against extreme cases.
The judge says this is now an unreasonable question.
Eadie says there are political controls in place. Ultimately it is for parliament to exercise controls
The lawyer and legal commentator Schona Jolly thinks the Lord Kerr questioning (see 10.55am) was significant.
This is a potentially revealing line of question from the Court here. Lord Kerr persists - so there are constraints to the power & it is the purpose and role of the Court to consider what constraints are & whether they have been exceeded?Eadie doesn’t deny this.
Lord Kerr asks Eadie if he accepts that it is up to the court to decide the limits of prerogative powers.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.Eadie says he does.
Q: And do you accept that prerogative powers can be limited by fundamental rights? Q [From Kerr]: And do you accept that prerogative powers can be limited by fundamental rights?
Eadie does accept that.Eadie does accept that.
He says it is for the court to decide all sorts of issues relating to the prerogative, including its limits.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? Q [From Kerr]: 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”.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.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.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. Q [From Kerr]: 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 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).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.”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.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 RozenbergFrom 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 prerogativeEadie 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.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.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.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.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.Sir James Eadie QC has started making his case.
He will be running through arguments set out in the government’s written submission (pdf).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).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.
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 4.5 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 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.
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.
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 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 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.
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.)
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 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.
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:
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:
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:
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.
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.
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.
Masses 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 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:
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.
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.
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.
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.