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Brexit: supreme court resumes hearing to decide if Boris Johnson's suspension of parliament lawful - live news Brexit: Claim Boris Johnson suspended parliament to ‘stymie’ MPs untenable, supreme court told - live news
(40 minutes later)
The supreme court has been told that it is “untenable” to argue that Boris Johnson is suspended parliament for five weeks to “stymie” MPs who might want to obstruct Brexit. This was the ruling made by the Scottish court of session. But, addressing the supreme court for the government, Sir James Eadie QC said:
Both in the briefing to [Johnson], and in the statements to cabinet, it was absolutely clear that he well understood that parliament was going to have the opportunities that it in fact had. And indeed if he had tried to say that, knowing that parliament was going to come back on 3 September and do what it in fact did, it was entirely predictable, it was either going to be a motion of no confidence or it was going to be legislation. And so the idea that parliament would be deprived of the opportunity to take whatever steps it wished in that run-up, including in relation to the sittings of parliament, is simply untenable.
Jean-Claude Juncker has called on the British government to table “operable proposals in writing” to resolve the Brexit deadlock, as he warned that no-deal was a “palpable” risk. See 9.29am for a summary of his speech.
Jeremy Corbyn has been strongly criticised by senior Labour figures after using a Guardian article to suggest he could remain neutral in any referendum on Brexit staged by a future Labour government. The first minister in Wales, Mark Drakeford, whose government is now arguing for the UK to abandon Brexit, said Welsh Labour “must and will campaign to remain in the EU” in any future referendum. He said:
Any type of Brexit - even the softest possible - will cause potentially irreparable damage to Wales and its economy. This is because Wales is heavily dependent on manufacturing and agri-food, and 60% of our exports go straight to the EU.
We will support all the efforts our colleagues in Westminster are taking to prevent the no-deal Brexit, which the prime minister and the Tory government is hell-bent on pursuing.
Alan Johnson, the former Labour home secretary how led the Labour In campaign in 2016, said told the World at One the party would get “slaughtered” on the doorstep trying to defend Corbyn’s position.
“I think we’ll get slaughtered in the sense that you’d have to have a very large foot in the door to keep people on the doorstep long enough to explain it”Former Labour Minister #alanjohnson on Labour’s policy announcement on #Brexit #bbcwatohttps://t.co/OAMkR3Bgn8 pic.twitter.com/CGHyB0ZkH9
In an interview with Sky News Corbyn repeatedly refused to clarify whether he would back remain or leave in a Brexit referendum he would call as prime minister. He said:
My job as prime minister would be to deliver that option that’s chosen by the British people. I will credibly present the options and say ‘this is the option, you can remain, possibly with some reforms to the European Union, or you can Leave, but you will be leaving on these terms which would protect jobs and living standards and trade’.
Pressed if he would remain neutral in the campaign, Corbyn said:
As prime minister I’m offering the people a choice - the only party that’s doing so.
The parent of a sick child claimed the NHS was being destroyed as he challenged Boris Johnson during a hospital visit. As the Press Association reports, Johnson was confronted by the angry parent, who claimed there were not enough doctors and nurses. In a conversation lasting around two minutes, the man said the situation was “not acceptable”. Johnson was visiting Whipps Cross University Hospital in north-east London when he was challenged by the parent on a children’s ward. The parent said the situation was “not acceptable” and told the Prime Minister:
There are not enough people on this ward, there are not enough doctors, there’s not enough nurses, it’s not well organised enough. The NHS has been destroyed ... and now you come here for a press opportunity.”
Johnson said “there’s no press here” but the parent gestured to cameras filming the confrontation, and said: “What do you mean there’s no press here, who are these people?”
Poland’s ambassador to the UK has written to 800,000 Poles advising them to “seriously consider” returning home and expressed concern about the application process for getting settled status in the UK after Brexit.
A government minister has refused to confirm whether the new domestic abuse bill would ban the cross-examination of victims by alleged perpetrators in court, a key provision of the original bill, which stalled due to the prorogation of parliament.
Here is my colleague Owen Bowcott’s story about this morning’s hearing.
Inappropriate for judges to intervene in prorogation, says government lawyer
This is from the barrister and QC Matthew Ryder.
Unwise to try to call a result half way through a case, but I think most would now think its not good for Govt.Eadie was impressive, but even he struggled to convince the Court that in face of brazen abuse of prerogative power by Govt, its constitutional role is to do nothing.
Nicola Sturgeon has accused anti-independence campaigners of cowardice as she marked the fifth anniversary of the 2014 independence referendum with a trip to Berlin to promote Scotland’s case for EU membership.
The pro-UK campaign Scotland in Union boasted last night that its new Survation poll had found 59% of voters (excluding don’t knows) would choose no in a second referendum, as both sides marked five years since the first vote on 18 September 2014. In that referendum, the no side won with 55.3% against 44.7% for yes.
The Survation figure, based on a leading question which asked “should Scotland remain in the United Kingdom or leave the United Kingdom?”, is an outlier. The latest polls put the yes/no divide at nearer 50:50. The first minister tweeted that if unionists really believed they would win, why not support her calls for a referendum next year.
In #indyref UK politicians told us that independence would see us thrown out of the EU. Today, five years on, I’m in Germany fighting for an EU future that we stand to lose because we are not independent. Scotland’s future belongs in Scotland’s hands. #StillYes #indyref2
Incidentally, if anti independence campaigners believed the findings of the poll they have published today, they’d be clamouring for #indyref2 - but they don’t, which is why they are spending so much time trying to either block it or rig the question.
Sturgeon is preparing for a concerted push for a second vote, hoping the Brexit crisis will push the yes vote well above 50%. Her government has put draft legislation to Holyrood setting the ground rules for future referendums and earlier this month she indicated she would ask the UK government in December for the legal powers to stage an independence poll.
This and the Brexit crisis will be the dominant themes at Scottish National party conference in October. Sturgeon is likely to double down there on her demands for a second independence vote next year; if Labour beats the Conservatives in a snap election, Corbyn may just grant her one, in exchange for SNP backing at Westminster.
Sir James Eadie QC has finished.Sir James Eadie QC has finished.
Aidan O’Neill QC, who represents Joanna Cherry and others who took the government to court in Scotland, goes next.Aidan O’Neill QC, who represents Joanna Cherry and others who took the government to court in Scotland, goes next.
He says he wants to make two points now. He will start making his main presentation after lunch.He says he wants to make two points now. He will start making his main presentation after lunch.
On “relief” (see 12.57pm), he says he would like to be consulted.On “relief” (see 12.57pm), he says he would like to be consulted.
And he says in Scotland ministers do give witness statements in cases like this. He refers to a case about prisoners slopping out, and another on public procurement.And he says in Scotland ministers do give witness statements in cases like this. He refers to a case about prisoners slopping out, and another on public procurement.
He says it was Boris Johnson who took the decision. He says a witness statement could mean the PM having to tell the truth, and the whole truth, under oath.He says it was Boris Johnson who took the decision. He says a witness statement could mean the PM having to tell the truth, and the whole truth, under oath.
And that’s it for now. The court has adjourned until 2pm.And that’s it for now. The court has adjourned until 2pm.
Eadie says he wants to get something in writing as to what might be done in terms of “relief” (ie, what the government would have to do if the court found against it).Eadie says he wants to get something in writing as to what might be done in terms of “relief” (ie, what the government would have to do if the court found against it).
He says the options available to the government would depend on the reasoning of the court.He says the options available to the government would depend on the reasoning of the court.
He says the government will make a suggestion in writing, if that is not inconvenient.He says the government will make a suggestion in writing, if that is not inconvenient.
Lady Hale, the president of the court, says it will be inconvenient if the court does not have it by tomorrow afternoon.Lady Hale, the president of the court, says it will be inconvenient if the court does not have it by tomorrow afternoon.
Eadie says he wants to provide it overnight.Eadie says he wants to provide it overnight.
Another judge says the issue of “relief” is a very difficult question. Any help Eadie can give the court as to what the options are would be appreciated, he says. Lord Reed says the issue of “relief” is a very difficult question. Any help Eadie can give the court as to what the options are would be appreciated, he says.
Lord Kerr asks if it is accepted that there was a political advantage to the government from having a five-week prorogation.Lord Kerr asks if it is accepted that there was a political advantage to the government from having a five-week prorogation.
Eadie says he cannot answer that.Eadie says he cannot answer that.
But he says there is an advantage to the government from having a “clear space” ahead of the Queen’s speech.]But he says there is an advantage to the government from having a “clear space” ahead of the Queen’s speech.]
Q: But what about the argument that this reduced scrutiny by MPs.Q: But what about the argument that this reduced scrutiny by MPs.
Eadie refers the judge to what is said in the government documents about the reasons for prorogation.Eadie refers the judge to what is said in the government documents about the reasons for prorogation.
The judge says those documents may not tell the whole story.The judge says those documents may not tell the whole story.
Eadie says his case is that, even if there was a political advantage, that was not improper.Eadie says his case is that, even if there was a political advantage, that was not improper.
Eadie says the government has, exceptionally, provided a cabinet minute explaining the prorogation decision.Eadie says the government has, exceptionally, provided a cabinet minute explaining the prorogation decision.
Lord Wilson points out that they do not have a witness statement (saying that the prorogation was not intended to limit the opportunities for MPs to frustrate Brexit).Lord Wilson points out that they do not have a witness statement (saying that the prorogation was not intended to limit the opportunities for MPs to frustrate Brexit).
Eadie accepts the court does not have a witness statement of the kind it would accept. But he says the other documentation sets out the government’s position.Eadie accepts the court does not have a witness statement of the kind it would accept. But he says the other documentation sets out the government’s position.
Another judge asks about the suggestion that the PM should have signed an affidavit, and submitted himself to cross-examination.Another judge asks about the suggestion that the PM should have signed an affidavit, and submitted himself to cross-examination.
Eadie says he has never encountered a case where that happened. He has never been involved in a judicial review where the minister involved gave a witness statement.Eadie says he has never encountered a case where that happened. He has never been involved in a judicial review where the minister involved gave a witness statement.
Q: What about the cabinet secretary giving a witness statement and submitting to cross-examination?Q: What about the cabinet secretary giving a witness statement and submitting to cross-examination?
Eadie says, if that request had been made, it would have been resisted with fury.Eadie says, if that request had been made, it would have been resisted with fury.
He says the suggestion that the PM was operating in a way designed to “stymie” parliament was untenable. He says the documents submitted by the government showed that the PM anticipated MPs being able to pass Brexit legislation in September, as they went on to do.He says the suggestion that the PM was operating in a way designed to “stymie” parliament was untenable. He says the documents submitted by the government showed that the PM anticipated MPs being able to pass Brexit legislation in September, as they went on to do.
Eadie says claim that PM prorogued parliament to “stymie” parliament is “untenable”.Eadie says claim that PM prorogued parliament to “stymie” parliament is “untenable”.
“Stymie” is the word used in the judgment from the Scottish court of session.“Stymie” is the word used in the judgment from the Scottish court of session.
Eadie says he now wants to turn to some issues that he summarises under the heading “lawful in any event”.Eadie says he now wants to turn to some issues that he summarises under the heading “lawful in any event”.
He says parliament has been considering Brexit for many months.He says parliament has been considering Brexit for many months.
And it passed the Northern Ireland (Executive Formation) Act, which contained provisions to ensure that parliament did sit periodically during the autumn.And it passed the Northern Ireland (Executive Formation) Act, which contained provisions to ensure that parliament did sit periodically during the autumn.
Eadie addresses the question of whether the executive might want a very long prorogation. (See 11.12am.)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.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.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: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.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: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 ...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.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.
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.
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.”