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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
(37 minutes later)
Eadie says even Lord Pannick, who represents Gina Miller, accepts that it can be legitimate for the executive to obtain political advantage from prorogation.
If this is the case, how can a court decide what level of political advantage is acceptable, and what level is not.
He refers again to the judgment from the English high court (pdf), which he wants the supreme court to uphold. He refers to paragraph 55 which says:
Prorogation has been used by the government to gain a legislative and so political advantage. One of the most notable examples of that was its use to facilitate the speedy passage of what became the Parliament Act 1949. Under section 2 of the Parliament Act 1911 a non-money bill could only be enacted without the consent of the House of Lords if it was passed in three successive sessions by the House of Commons. In order to procure the speedy enactment of the 1949 Act 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 House of Commons, it was then prorogued again on 25 October 1948. Accordingly, even if the prorogation under consideration in the present case was, as the claimant and the interveners contend, designed to advance the government’s political agenda regarding withdrawal from the European Union rather than preparations for the Queen’s speech, that is not territory in which a court can enter with judicial review.
(This reference rather supports David Allen Green’s analysis. See 11.59am.)
This is from the FT’s legal commentator, David Allen Green.
Interesting that there is now not even any lip-service at the Supreme Court that the prorogation was for a new Queen's SpeechGovernment submissions seem to be that the prorogation power stands, whatever its purpose and effect
Eadie asks how a court could be expected to judge what length of prorogation might be reasonable or unreasonable. He cites approvingly paragraph 54 of the English high court judgment (pdf) on this. It says:
All of these arguments face the insuperable difficulty that it is impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure. There is no legal measure of the length of time between parliamentary sessions. There is not even a constitutional convention which governs the matter, albeit that constitutional conventions are not justiciable: see Miller No 1 at [136] and following. The skeleton argument for the prime minister notes that there have been a number of occasions in modern times during which parliament was prorogued for a lengthy period. It was, for example, prorogued on 1 August 1930 until 28 October 1930; on 18 September 1914 until 27 October 1914 and then further prorogued until 11 November 1914; and on 17 August 1901 until 5 November 1901.
From the Daily Telegraph’s political editor, Gordon Rayner
Downing St v confident they will win the Supreme Ct case but at the moment it seems finely balanced. It seems certain that at least some of the judges will decide courts CAN intervene in prorogation in extremis. Whether Boris has done anything extreme is the heart of the case.
A judge asks Eadie if he accepts that five Brexit bills have fallen as a result of the decision to prorogue parliament.
Eadie says he does not have a complete answer on this. But his main point is that, if parliament needs to pass these bills in a hurry, it can act accordingly.
Eadie is now on to his final reason as to why a decision to prorogue parliament should be seen as a non-justiciable matter.
He says this is not a matter of individual rights, as in some other legal cases relating to prerogative powers.
He says any decision to prorogue will reduce the time available for debate in parliament.
He says Lord Pannick is not criticising the right of the government to prorogue parliament in all circumstances. He is just objecting to how the decision was taken in this case.
He says this means Pannick cannot object to the consequences of prorogation, on improper motive grounds, if he is not objecting to the fact of prorogation.
A judge asks if it is the government’s position that the Queen has the discretion to refuse a request from the prime minister to prorogue parliament.
Eadie refers to comments from Jacob Rees-Mogg, the leader of the Commons. This was cited yesterday. Rees-Mogg told the BBC that the Queen had no option but to do what the PM requested.
Eadie says he is not making submissions on this point.
When pressed, he says there is some uncertainty as to quite what the Queen’s powers are in this case.
The government says more on this in its submission (pdf), at paragraph 35. It says:
Contrary to the suggestion at §8 of the appellant’s written case, it is not (and never has been) asserted that Her Majesty enjoys no personal prerogative in this context or that she is obliged to accept the advice of the prime minister. However, this is not an issue which arises for determination on the present appeal. Nor is it a matter for the court. Whether Her Majesty enjoys a personal prerogative in any particular case is a question of constitutional convention, not law. For the reasons given below, the courts have no jurisdiction to determine the scope of, or to enforce constitutional conventions.
Eadie is now making other arguments as to why a decision to prorogue parliament should be seen as a non-justiciable matter.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.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.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.)(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.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: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.(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.(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.”(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”.Eadie says a decision to prorogue parliament is “fundamentally political”.
He says the government has given examples, in paragraph 71 of its submission (pdf).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.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.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?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.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.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?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.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. Kerr says this is not an unreasonable question.
Eadie says there are political controls in place. Ultimately it is for parliament to exercise controlsEadie 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.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.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 [From Kerr]: 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 [From Kerr]: 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 [From Kerr]: 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).