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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 |
| (31 minutes later) | |
| Eadie addresses the question of whether the executive might want a very long prorogation. (See 11.12am.) | |
| He says this prorogation only lasts for five weeks. | |
| But, in any event, if a government tried to prorogue parliament for a long period of time, it would run into other problems, he says. For example, it needs parliament to approve spending decisions. | |
| He refers to paragraph 92 of the government submission (pdf) which says: | |
| There are, in any event, for the reasons given by Dicey (pp.297-299) real practical impediments to the government proroguing parliament in the extreme circumstances relied on by the appellant. These include the fact that authorisation to appropriate money from the consolidated fund, to charge income and corporation tax, and to maintain discipline over the armed forces must be authorised by parliament annually. No government could in practice continue in office without parliament sitting regularly. | |
| And he also refers to paragraph 76, which also includes these two quotes from The Law of the Constitution, the seminal work by AV Dicey. Dicey wrote: | |
| Suppose that parliament were for more than a year not summoned for the despatch of business. This would be a course of proceeding of the most unconstitutional character. Yet there is no court in the land before which one could go with the complaint that parliament had not been assembled ... | |
| No rule is better established than that parliament must assemble at least once a year. This maxim, as before pointed out, is certainly not derived from the common law, and is not based upon any statutory enactment. Now suppose that parliament were prorogued once and again for more than a year, so that for two years no parliament sat at Westminster. Here we have a distinct breach of a constitutional practice or understanding, but we have no violation of law. | |
| These are from the BBC’s Laura Kuenssberg. | |
| 1. This is all very unpredictable, but if you are following Supreme Court case the expectation in govt might be shifting a bit | |
| 2. Senior govt source says - 'No 10 thinks Supreme Court will say prorogation is justiciable in principle' - in other words, it is a matter of law, not just politics, 'and they will fire warning shots about how a govt shouldn't use this to close Parliament illegitimately' but... | |
| 3. Number 10 does not, at the moment, think court will unravel their plan for Queen's Speech on Oct 14th - caveat, clearly we are all in very untested and spinnable territory here, and it will be down to the 11 judges, no one else | |
| This assumption from Number 10 as to how the case may unfold seems highly plausible. In fact, I was speculating along these lines BTL just a couple of hours ago. This was in response to a question from Shoobedydedoop about whether the supreme court’s decision might end up being equivocal. | |
| I think that is possible. | |
| Perhaps a declaration that there are limits to the PM's prorogation power, but that in this case it was okay? | |
| Gina Miller et al would count that as a partial victory - although it would not change much. | |
| But that's just a guess | |
| Eadie says even Lord Pannick, who represents Gina Miller, accepts that it can be legitimate for the executive to obtain political advantage from prorogation. | 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. | 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: | 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. | 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 reference rather supports David Allen Green’s analysis. See 11.59am.) |
| This is from the FT’s legal commentator, David Allen Green. | 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 | 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: | 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. | 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 | 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. | 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. | 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 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. | 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 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 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 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. | 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. | 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 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. | 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. | 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: | 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. | 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.” |