Tuesday 17 September 2019 4:00 pm

Supreme Court live: Government QC outlines case for prorogation

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Follow this live blog as the UK’s highest court hears arguments for and against Prime Minister Boris Johnson’s controversial decision to prorogue parliament.

For an explainer on everything leading up to this week’s court case, check out our article from earlier on today. We run through how the English High Court ruled, how Scottish judges ruled, and why that gives the Supreme Court a real headache.

In short, Prime Minister Boris Johnson secured the Queen’s assent to prorogue parliament, but courts have differed on whether his advice to the Queen was misleading, and whether courts can even intervene.

Parliament’s suspension is a crucial issue for the UK, with Johnson insisting it is necessary to deliver a new domestic agenda on 14 October.

MPs have complained that it gives them four fewer days in which to debate Brexit as the departure date of 31 October fast approaches.

4pm Keen wraps up government case

Keen “accepts in theory” the point that parliament could have returned to sit during the recess, but says the Scottish high court’s rulings misunderstood how parliament operates. 

The Scottish judgement said parliament could have reconvened during the recess, Keen said, but pointed out that during an adjournment, parliament can only be recalled if the government asks for it to be recalled.

Keen says the Scottish judgement was based on a “fundamental misunderstanding” of how parliament operates, and begins to wrap up his case.

The court will reconvene tomorrow morning at 10.30, when lawyers representing the prime minister will respond to the case.

3.49pm Government outlines case for five week prorogation

Asked why the prorogation needed to last for so long, Keen said the usual length of the suspension was because it had covered party conference season. 

Only seven planned sitting days were lost, he said. 

A judge asked if it was possible that, had it not been prorogued, parliament could have decided to sit during the planned recess. Keen says there is no record of the Commons ever deciding to sit during this recess in the past. 

2:35pm Keen begins government’s case

Lord Keen QC, advocate general for Scotland, is now making the case for the government.

He tells the 11 judges that the PM “will take all necessary steps to comply with any declaration of the courts”.

But he refuses to answer whether Boris Johnson would seek to prorogue parliament again if they rule that this prorogation was unlawful.

Read more: Number 10’s plan to run down the clock in its Brexit face-off

1.20pm Lord Pannick: 3 key reasons why parliament prorogue is illegal

As Pannick tucks into a hard-earned sandwich, let’s have a look at the crux of his argument.

His case boils down to three key ingredients:

  • The sheer length of the five-week suspension of parliament shows Prime Minister Boris Johnson wanted to avoid MPs’ scrutiny of his Brexit plans
  • Courts are best-placed to judge whether prorogation was valid or not
  • Johnson should have offered a witness statement detailing what advice he gave the Queen in order to prorogue parliament

Pannick concluded his argument by telling the 11 judges that victory for the government could pave the way for a future Prime Minister to suspend parliament for six months, or even a year

Summarising Pannick’s position, ITV’s Robert Peston tweeted: “The law can prevent a PM becoming an elected dictator.”

He added: “He is trying to put fire in the bellies of the judges, steel in their backbones.”

1.08pm Pannick winds up argument; court breaks for lunch

After a whistle stop tour of a lot of relevant case law, Pannick wraps up his argument.

If they find the decision to prorogue is not judiciable, says Pannick, the judges “ really need to consult the issue of what would happen if another prime minister decides they want to prorogue parliament for six months or a year”.

“It is a legal question we are raising, and legal questions are for the court to determine.”

Pannick is seeking a declaration that the advice given to the Queen over prorogation was unlawful, he says.

He thanks the judges for their patience and apologises for running into the allotted lunch break time. That’s it. Pannick has set out his case on behalf of Gina Miller.

The court is now taking an hour-long lunch break, and is set to return at 2pm.

1.05pm In pictures: Protesters gather outside Supreme Court

This morning saw Remainer Gina Miller appear for the Supreme Court hearing, along with Robocop and The Incredible Hulk…

12.53pm Pannick peruses precedents

Pannick describes this as “a distinct case” of prorogation.

The key issue is whether parliament can be prorogued for “political advantage”, he says, arguing this cannot be the case if the prorogation is to remove scrutiny.

Pannick then begins to walk through a series of precedents relating to judiciability.

Here’s some interesting commentary from QC Joshua Rozenberg on the exchanges between Pannick and Lord Hodge.

12.43pm It is the length of the prorogation that makes it illegal, argues Pannick

Lady Arden has said that parliament is allowed to be prorogued under the Fixed-Term Parliaments Act.

Pannick says he has “accepted that it’s perfectly legitimate” for the Prime Minister to decide to hold a Queen’s speech, which requires the prorogation of parliament, but says it is a “very different matter” to have a prorogation “for an exceptional amount of time” with the aim of preventing parliamentary scrutiny of government – as, he argues, is the case here.

Pannick says the issue “demands that the court answers it, and must not be left”.

12.35pm Miller’s lawyer argues decision to prorogue must be adjudicated by the courts

Pannick has now moved on to the third aspect of his argument: justiciability. 

He is arguing that the high court was wrong to rule that the decision to prorogue parliament was not justiciable – or subject to adjudication by the courts. 

Pannick briefly quotes from a blog written by Professor Mark Elliott from the University of Cambridge, which argues that “the non-justiciability doctrine has no relevant application” in this case, adding: “the suggestion by the divisional court that the “political” nature of the issue shields it from judicial review is entirely wide of the mark.”

“Whether the supreme court will be prepared to treat the matters before it as justiciable remains to be seen, but there is no good legal reason for treating them as non-justiciable,” writes Elliott.

12.14pm Suspension ‘diminishes parliament’s sovereignty’

 Miller’s lawyer said proroguing parliament “cannot be constitutionally correct”. “To subscribe to such reasoning diminishes parliament’s sovereignty,” he added.

He added that the “basic principle” of the UK constitution is that parliament is “supreme” over the government.

Asked whether, if parliament has “held its hand”, should the courts intervene, Lord Pannick added argued that the government must answer to the courts on matters of law.

“I respectfully submit this court is simply not concerned with whether or not the PM could command the confidence of the House of Commons whether a vote of no confidence could have been brought what the consequence of it could have been,” he said.

12.05pm Parties release key papers in Brexit battle

Both sides – the government and Gina Miller’s QC have made their written arguments made available for viewing. You can check them out here.

11.40am Prorogation stops parliament from scrutinising government, says Pannick

Lord Pannick tells the 11 judges that the five-week prorogation “in effect prevents parliament from performing its scrutiny functions over the activities of the legislature”.

He added: “It means Parliament cannot legislate and it cannot inform itself for the purposes of legislating by the asking of parliamentary questions.”

11:35am ‘Damaging impact’

“Parliament is closed. You cannot ask any question…”

“The Prime Minister’s decision to close parliarment for five weeks inevitably has a very damaging impact on the ability of legislature to scrutinise the actions of the executive,” he adds.

Quizzed about this Pannick adds that the team is “not wedded to a solution that involves a finding of a wrongful motive. We have put the case in both ways.”

11:17am Crying Out Loud

Lord Pannick is criticising Boris Johnson for not having supplied a witness statement.

He notes “it would have had legal consequences” – namely to have allowed for cross examination, opening him up to possible accusations of contempt of court.

But, he adds: “This case cries out for an answer in a witness statement to the allegation made against the PM. In the absence of [that…] we say the court should infer that there is no answer.”

Pannick argues that Johnson would not have sought such a long prorogation if it had not been for his desire to frustrate parliament.

This was an “improper motive”, he says.

10:44am Pannick stations

Lord Pannick QC, speaking on behalf of Gina Miller, sets out their case based on three arguments.

He claims that “No Prime Minister has abused his powers in the manner we allege for at least 50 years”

Here are some other key highlights

“Parliament is sovereign and the executive is answerable to parliament… to seek to evade control by parliament stands the basic principles of constitutional law on their head.”

“We say it is an improper purpose for the Prime Minister to use prorogation because he wants to avoid risk of parliament undermining executive during the relevant period”

“The length of prorogation is important… not because prorogation may only be for one week, or three weeks [but because it] is strong evidence that the Prime Minister’s motive was to silence parliament for that period, bc he sees parliament as an obstacle to furtherance of his political aims”

10:32am Supreme Court hearing begins

Lady Hale, the president of the supreme court, opened by saying: “This is a serious and difficult question of law is amply demonstrated by the fact that three senior judges in Scotland have reached a different conclusion to three senior judges in England and Wales.”

She notes that given the proceedings are being live streamed it will give people an opportunity to see what the case is here to consider “and what it is not”.

“We are not concerned with wider political issues,” she adds, pointedly saying this case “will not determine when and how the UK leaves the EU”.

10.32am: Follow the hashtag #SupremeCourtFact

For people growing tired of the constant developments in the UK’s long-running Brexit saga, a new hashtag on Twitter seems to offer some salvation.

Barristers and political commentators are having fun this morning on the hashtag #SupremeCourtFacts, coming up with some weird and wonderful (and fake) bits of information about the Supreme Court judges.

For the curious among you, tidbits include each of the 11 Supreme Court judges overseeing today’s case entering court to their own Diana Ross song.

The judges also apparently play a drinking game – every time a barrister passive aggressively says “my learned friend”, they down some beer.

Twitter legal expert David Allen Green chimed in with his own football-inspired ‘fact.

“Eleven of the twelve judges sitting are the first team,” he tweeted.

“The twelfth sits in a dugout out of camera view fully kitted up and ready to deputise, and is formally known as Justice Supersub.”

10am: Avengers Assemble

The legal battle that could see Boris Johnson’s decision to prorogue parliament ruled unlawful is set to kick off at 10:30am this morning. The key players, including Gina Miller, have already started to arrive.

There are two cases being heard – one brought by Miller and one brought by SNP MP and QC Joanna Cherry.

Two extra courts have been opened because of wider public interest in the cases.

And the hearing is taking place outside usual sitting time because of its constitutional significance.

The government goes into the showdown 2:1 up, with Belfast and London ruling that the prorogation sat outside legal jurisdiction; however a Scottish court ruled that it was unlawful.

The Supreme Court is expected to hear the cases until Thursday, with no verdict due before Friday. Former Prime Minister John Major will give a verbal submission on Thursday.

Read more: Boris’ Brexit blindside: What the hell just happened?

Miller, who challenged Theresa May over her decision to invoke Article 50 without parliamentary consent, has issued a statement:

“The reason given for the prorogation was patently untrue and, since then, the refusal to come clean or provide any of the disclosures we have asked for has compounded the deception.

“It is my view – and the view of a great many others – that Mr Johnson has gone too far and put our parliamentary sovereignty and democracy in grave danger by his actions.”

9:30am Protesters gather at Supreme Court

We are watching proceedings in Westminster this morning, where protesters are gathering ahead of the hearings. There appeared to be plenty of people representing both Leave and Remain sides, as has been the case on College Green for some months.

9:15am Buckland’s broadcast round

Justice secretary Robert Buckland – who stepped in to defend the impartiality of UK courts after a rogue source told The Sun newspaper they were biased – has been pitch-rolling this morning. But while he has stressed the government believes in the rule of law (because that, apparently, now needs to be said), he did not rule out a second attempt at proroguing parliament, if the decision goes against the government today. Read the full details here.

Main image: Getty