A bombshell Government legal document today revealed Boris Johnson could just prorogue Parliament a second time if he loses in the Supreme Court
The Prime Minister may also resist recalling MPs straight away if the crunch legal battle in Britain’s highest court goes against him and also demand the Queen’s Speech goes ahead, it has emerged.
Government lawyers have told the 11 judges who will have the final say on whether proroguing Parliament for five weeks is illegal that he could be ‘open’ to doing it again.
Boris’ top QC, ‘Treasury Devil’ Sir James Eadie has said that ‘depending on the court’s reasoning it would still either be open or not open to the Prime Minister to consider a further prorogation’.
Watch the Supreme Court case live:
Boris Johnson (right in Downing Street today) may refuse to recall MPs or prorogue again if he loses the Supreme Court case
A Government legal document reveals that Boris could still be open to proroguing again
Documents submitted to the court on Mr Johnson’s behalf reveal three possible scenarios in the event the 11 justices conclude the Prime Minister’s advice to the Queen to prorogue Parliament for five weeks was unlawful.
The first envisages a situation where the judges find it was unlawful, but their reasoning leaves open the possibility that Parliament could be prorogued for the same length of time in a lawful manner.
The document, submitted by Sir James Eadie QC and Advocate General for Scotland Lord Keen, states: ‘In that scenario, the court would and could not make any order purporting to require Parliament to be reconvened… Parliament would remain prorogued.’
The second possible outcome is that the court could find the suspension was unlawful and that the recall of Parliament before October 14 is the ‘only option lawfully open to the Prime Minister’.
In this scenario, the document states Mr Johnson would comply with the terms of the ruling, but that it would also be ‘open to the court to consider whether to make a mandatory order’.
However, Mr Johnson’s lawyers urge the court to consider the ‘very serious practical consequences’ as the recall of Parliament would require a meeting of the Privy Council and a new Queen’s Speech.
The document continues: ‘A Queen’s Speech, and the State Opening of Parliament which accompanies it, is a significant political, constitutional and ceremonial occasion, which ordinarily involves the Sovereign attending in person.
‘As the court will be well aware, the proper preparations for a Queen’s Speech are a matter of thoroughgoing importance, including in relation to the content of that Speech.
‘Extensive arrangements would have to be made, including as to security, to enable this to occur.
‘These considerations lead to the need for any order that the court makes, if necessary, to allow for these steps relating to the earlier meeting of Parliament to occur in an orderly fashion.’
In the third possible outcome, the document states the court could rule that the prorogation was unlawful, with the effect that Parliament was not prorogued and remains in session.
However, Mr Johnson’s lawyers assert that, depending on the court’s reasoning, it may the mean the Prime Minister consider a new, second, prorogation.
Arch-remainer Gina Miller arrives at the Supreme Court flanked by police and security today where she is leading the charge against the Prime Minister
It came as Sir John Major compared the Prime Minister to a lying estate agent.
Sir John, the lynchpin in the battle brought by arch-Remainer Gina Miller, says the current Tory leader unlawfully shut down the Commons for five weeks saying his reasons ‘cannot be true’.
Sir John Major prorogued Parliament in 1997, but he’s not a hypocrite, says his QC
Lord Edward Garnier, representing former British prime minister Sir John Major, said his client who once prorogued Parliament himself, believes Boris is not telling the truth
Sir John, 76, has faced accusations of hypocrisy because he prorogued Parliament in 1997 to delay publication of a report into the cash-for-questions scandal until after that year’s general election.
But his lawyer Lord Garnier QC, a former Tory Solicitor General under David Cameron, denied this and told the Supreme Court that Sir John’s decision was not done for ‘base political reasons’ so was ‘different’ to the current shut down.
Sir John prorogued Parliament himself ahead of the 1997 general election, which prevented MPs from debating a report on the cash for questions scandal. He insists it was not a political decision.
He stayed away from the Supreme Court today but his blue-on-blue attack, handed to judges this morning, questions the PM’s motives and aims to deliver sledgehammer blow in the landmark legal battle.
His case is one of two historic appeals being heard at the UK’s highest court over three days with the UK’s top 11 judges expected to give their judgment next week.
Sir John Major, 76, who lost power because of eurosceptics in his party he branded b***tards’, has faced accusations of hypocrisy because he prorogued Parliament in 1997 to delay publication of a report into the cash-for-questions scandal until after that year’s general election.
But his lawyer Lord Garnier QC, a former Tory Solicitor General under David Cameron, denied this and told the Supreme Court that Sir John’s decision was not done for ‘base political reasons’ so was ‘different’ to the current shut down.
On day three of the Supreme Court case, judges heard:
- Government lawyers believe a new prorogation if the PM loses the case remains; on the table
- Lord Garnier QC, representing Sir John Major, said his client had made ‘a clear and unambiguous allegation in evidence … that the reasons (for prorogation) put before the court by the Prime Minister cannot be true’;
- Nicola Sturgeon’s top lawyer, representing the the Scottish Government, said a five-week prorogation of Parliament as ‘an abuse of executive power which calls for the intervention of the court’;
- Supreme Court president Lady Hale knocks back ‘No Deal’ fears from Northern Ireland QC Ronan Lavery and told him: ‘We are not concerned with when and how and on what terms the UK leaves the EU’;
Sir John Major cites a previous court case where an estate agent was found to be in ‘breach of fiduciary duty’ after he lied that the buyer of a new home would live there – but knew all along the property would be sold again for a profit as soon as the sale completed.
Sir John argues: ‘It could hardly be suggested that the duties of the Prime Minister to the monarch are less than those of an estate agent to a homeowner. Accordingly, if the court is satisfied that the Prime Minister’s decision was materially influenced by something other than the stated justification, that decision must be unlawful.’
The Supreme Court also heard from the Scottish and Welsh governments and Northern Ireland victims’ campaigner Raymond McCord.
The PM says he has shut down the Commons until October 14 so he can hold a Queen’s Speech laying out his new ‘bold and ambitious domestic legislative agenda’.
But critics, including Sir John, insist he broke the law and lied to Her Majesty to avoid scrutiny from MPs opposed to his promise to leave the EU on October 31 ‘no ifs no buts’.
In the papers Sir John argues that Mr Johnson’s justification, that he wanted a new Queen’s Speech legislative programme ‘makes no sense and cannot be the true explanation’.
Protesters gathered again outside the Supreme Court during a hearing on the legality of proroguing Parliament
Pro Brexit protesters were also there – but judges insist that their decision will not influence ‘how and when’ the UK leaves the EU
Sir John wrote that it would be ‘artificially naive’ for the court to accept Mr Johnson’s stated reasons for the prorogation.
He says: ‘Its effect is to deprive Parliament of a voice throughout the period of the prorogation. The inference was inescapable that the Prime Minister’s decision was motivated, or in any event substantially motivated, by his political interest in ensuring that there was no activity in parliament during the period leading up to the EU Council summit on October 17 and 18’.
‘If that conclusion were correct, the consequence would be that there is nothing in law to prevent a prime minister from proroguing parliament in any circumstances or for any reason,’ Sir John wrote.
Referring to comments by Defence Secretary Ben Wallace apparently linking prorogation to Brexit, Sir John said: ‘The court is under no obligation to approach this case on the artificially naive basis that the handful of disclosed documents, the contents of which nobody has been prepared to verify with a statement of truth, should nevertheless be assumed to be entirely accurate and complete when even members of the cabinet do not appear to believe them.’
The stinging intervention by the former Tory Prime Minister comes in legal papers submitted to the Supreme Court arguing the prorogation was unlawful – something Mr Johnson denies.
Today lawyers for Sir John intervened on day three of the case that could influence whether Britain leaves the EU and Boris will be under huge pressure to resign if the court decides he lied to Her Majesty about the reasons for sending MPs home from Westminster. His pledge to deliver Brexit by Halloween would also suffer a sledgehammer blow.
Lord Garnier, QC, a former solicitor-general, appeared on behalf of Sir John to challenge Mr Johnson’s insistence that the courts have ‘no jurisdiction’ over prorogation.
He argued that a future leader ‘opposed to the idea of a standing army’ could prorogue parliament and disband the military.
Lord Garnier said his client had made ‘a clear and unambiguous allegation in evidence … that the reasons (for prorogation) set out in the documents put before the court by the Prime Minister cannot be true’.
He added: ‘Where an allegation of this kind has been made, it would be normal for there at least to be some kind of witness statement.’
Lord Garnier said prorogation did not just stop Parliament from sitting, but prevented it from carrying out other functions – including its ability to find people in contempt.
He told the court people who have been found in contempt of Parliament in recent years included Mr Johnson’s senior adviser, Dominic Cummings.
The Lord Advocate James Wolffe QC, on behalf of the SNP’s Scottish Government, has was the first to outline his arguments to the court today.
He told the judges the prorogation was taking place during a ‘time-critical period’ when the UK Government’s decisions are likely to have ‘momentous consequences’.
Mr Wolffe said that, ‘irrespective of its purpose’, any suspension of Parliament called for the ‘most cogent justification’ and required the court to subject the decision to ‘rigorous and searching review’.
Scotland’s Lord Advocate James Wolffe QC, who represents the SNP Government, tells the court a ‘fundamental principle’ of parliamentary accountability is ‘at stake’ if they side with the PM
Ronan Lavery QC, representing Northern Irish victims’ campaigner Raymond McCord, told the court that the EU was ‘a peace project’ which was ‘designed to remove the significance of national identity’
Mike Fordham QC, speaking on behalf of the Labour Welsh Government, said there are five reasons why Boris Johnson must lose the case
The Supreme Court and 11 of its 12 judges are sitting for the third and final day of the case that could decide the direction of Brexit
Ronan Lavery QC, representing victims’ campaigner Raymond McCord, told the court that the EU was ‘a peace project’ which was ‘designed to remove the significance of national identity’.
He added: ‘The Good Friday Agreement itself was premised on continuing EU membership.’
He continued: ‘The rising tide of nationalism that we are witnessing is poisoning the harmony between the EU states and it is directly effecting Northern Ireland’s ability to function.
‘Brexit has been recognised as the major impediment to the restoration of the Northern Ireland Assembly.
‘We are urging the court to look at this legal question in a way that recognises the impact of the impugned decision on Northern Ireland in particular.’
Mr Lavery said that a ‘no-deal’ exit from the EU would lead to ‘the erection of the border’ on the island of Ireland.
But Supreme Court president Lady Hale responded: ‘We are solely concerned with the lawfulness or otherwise of the Prime Minister’s advice to Her Majesty to prorogue Parliament for a period of five weeks.’
She added: ‘We are not concerned with when and how and on what terms the UK leaves the EU.’
Mr Lavery referred to Boris Johnson’s pledge to leave the UK on October 31 as ‘do or die’, submitting that ‘that battleground language’ suggested a ‘scorched earth policy in relation to Northern Ireland (which) would be oppressive and would be unconstitutional’.
Lord Wilson said he was ‘worried’ about Mr Lavery’s submissions, as people watching online may have just logged on, heard his points about Brexit and ‘may come to entirely the wrong conclusion’ that that is what the court is looking at.
Reprimanding the lawyer, the judge added: ‘Now, don’t abuse our politeness, and don’t abuse Lady Hale’s patience.’
Box after box of legal documents are wheeled into the Supreme Court today for the third and final day of the crunch court battle
The 11 Supreme Court judges hearing the case. Top row from left: Lord Sales, Lady Arden, Lady Black, Lord Kerr; middle row: Lord Hodge, Lady Hale, Lord Kitchin, Lord Lloyd-Jones; bottom row: Lord Carnwath, Lord Wilson, Lord Reed
Mr Johnson was branded the ‘father of lies’ yesterday over his decision to suspend MPs from Parliament.
Judges at the Supreme Court were urged to ‘stand up’ to the Prime Minister and rule he acted unlawfully when he advised the Queen to prorogue Parliament for five weeks, and that he did it for ‘improper’ political advantage.
In an extraordinary personal attack on Mr Johnson, Aidan O’Neill QC, representing a pro-Remain Scottish MP, said: ‘What we have with prorogation is the mother of parliaments closed down by the father of lies.
‘Rather than allow lies to triumph, this court should … rule that this prorogation is an unlawful abuse of the power of prorogation which has been entrusted to the Government.’
Ministers are braced for the Supreme Court to limit Mr Johnson’s ability to suspend Parliament in future, Government sources said yesterday.
Downing Street had been confident of outright victory in the landmark hearing into whether the Prime Minister broke the law by proroguing Parliament for five weeks.
But a Government source said that, following the line of questioning from some judges, Ministers are now concerned the court could use the case to fire ‘warning shots’ over the PM’s powers.
The source said: ‘No 10 thinks the Supreme Court will say prorogation is justifiable in principle … and they will fire warning shots about how a government shouldn’t use this to close Parliament illegitimately.’
Such a ruling could prevent Mr Johnson from suspending Parliament again next month to prevent MPs blocking a No Deal Brexit – something he has refused to rule out.
Showdown: Britain’s 11 most senior judges hear submissions in the Supreme Court yesterday in a case that could change the direction of Brexit
Former chancellor George Osborne said: ‘What’s at stake here is not really whether this prorogation should be cancelled … but whether it can be extended or used in future to force a No Deal.’
Stanley Johnson insists his son is not a liar and always tells the truth as he ‘sees it’
Stanley Johnson (pictured on Good Morning Britain today) says his son’s plan on Brexit is ‘going smoothly’
Stanley Johnson has defended his son Boris and insisted he has no ‘secret plan’ to deliver Brexit.
He also denies the Prime Minister is a liar.
He said: ‘We all say the truth how we see the truth and I think Boris does that’
The environmentalist was also asked whether or not he knew his son’s ‘secret plan’ for Brexit after reports emerged the PM was keeping cards close to his chest.
He said: ‘I think he’s getting on fine everything is going completely smoothly as far as I can see’.
Mr O’Neill addressed the Supreme Court on behalf of the SNP MP Joanna Cherry, who successfully challenged the Government over prorogation in the Scottish courts – which ruled Mr Johnson’s advice to the Queen was unlawful.
Mr O’Neill said Downing Street memos from August proved the prorogation was intended to avoid Parliamentary scrutiny of ministers over Brexit, and not related to the Queen’s Speech, as the Government had argued.
He told the panel of 11 Supreme Court justices: ‘One might think that a government would engage solely in high politics as opposed to low, dishonest, dirty tricks. But I’m not sure we can assume that of this government.’
The three-day emergency hearing at the Supreme Court follows two separate cases, brought in England and in Scotland, which saw senior judges make contradictory rulings.
While Scotland’s highest court ruled that the Prime Minister effectively misled the Queen, the High Court in London ruled it was ‘purely political’ and not a matter for the courts.
Representing the Prime Minister, Sir James Eadie QC, said courts should not get involved in ‘high policy’, and argued MPs still had time to vote and pass legislation ahead of the Brexit deadline on October 31. The hearing will finish today.
Some legal pundits speculate that the pointed questions from the 11 justices so far signal that they might rule against the Government.
The Supreme Court is unlikely to hand down a ruling immediately, given the complexity of the case.
But judges will be aware Britain is only six weeks from Mr Johnson’s ‘do or die’ Brexit deadline.
The 11 Supreme Court judges set to rule on the key Brexit case
Lady Hale, Lord Reed, Lord Carnwath, Lord Lloyd-Jones, Lord Hodge, Lord Wilson, Lady Arden, Lady Black, Lord Sales, Lord Kerr and Lord Kitchin will make the final ruling in the Supreme Court (pictured top left to bottom right)
These are the 11 Supreme Court judges who will consider legal challenges to Prime Minister Boris Johnson’s decision to suspend Parliament:
– Lady Hale, 74, was appointed the first female president of the Supreme Court in 2017 after a varied career as an academic lawyer, law reformer and judge.
A long-standing champion of diversity in the judiciary, she became the first female justice of the court in October 2009, and was appointed deputy president in June 2013.
During her time as deputy president, Yorkshire-born Lady Hale ruled on numerous high-profile cases, including the Brexit appeal.
– Lord Reed, 63, was appointed deputy president of the Supreme Court in June last year and will replace Lady Hale when she retires in January.
One of the court’s two Scottish justices, he previously served as a judge in Scotland and sometimes sits as a judge at the European Court of Human Rights and the Hong Kong Court of Final Appeal.
He was educated at the universities of Edinburgh and Oxford before qualifying as an advocate in Scotland and a barrister in England and Wales.
– Lord Kerr, 71, is the first justice of the court to come from Northern Ireland, where he served as Lord Chief Justice from 2004 to 2009.
Educated at St Colman’s College, Newry, and Queen’s University, Belfast, he was called to the Bar of Northern Ireland in 1970, and to the Bar of England and Wales in 1974.
– Lord Wilson, 74, was appointed in 2009, having previously been a judge in the High Court’s family division and the Court of Appeal.
– Lord Carnwath, 74, studied at Cambridge and was called to the Bar in 1968. He served as Attorney General to the Prince of Wales from 1988 to 1994.
While a judge of the Chancery Division, he was also chairman of the Law Commission and, between 2007 and 2012, was Senior President of Tribunals.
– Lord Hodge, 66, the court’s other Scottish justice, was previously the Scottish judge in Exchequer Causes, one of the Scottish intellectual property judges, a judge in the Lands Valuation Appeal Court and a commercial judge.
– Lady Black, 65, a justice since 2017, carried out a broad range of civil and criminal work during her early career as a barrister before specialising in family law.
She has served as a High Court judge and Lady Justice of Appeal.
Lady Black taught law at Leeds Polytechnic in the 1980s, was a founding author of the definitive guide to family law practice in England and Wales, and continues to serve as a consulting editor.
– Lord Lloyd-Jones, 67, was born and brought up in Pontypridd, South Wales, where his father was a school teacher, and is the court’s first justice to come from Wales.
A Welsh speaker, he was appointed to the High Court in 2005, and acted as adviser to the court in the Pinochet litigation before the House of Lords.
– Lady Arden, 72, who grew up in Liverpool, began her judicial career in 1993 after working as a barrister, QC, and Attorney General of the Duchy of Lancaster.
She became a member of the Permanent Court of Arbitration in The Hague in 2011, and sits as a judge of the European Court of Human Rights in Strasbourg.
– Lord Kitchin, 64, was called to the Bar in 1977 and his practice covered intellectual property, including patents, trademarks, copyright, designs and trade secrets.
He has also served as a High Court judge and as a Lord Justice of Appeal.
– Lord Sales, 57, is the youngest of the court’s justices and was appointed in January, having worked as a barrister and QC before his appointment to the High Court in 2008.
He was vice-president of the Investigatory Powers Tribunal, served as deputy chairman of the Boundary Commission for England and was appointed as a Lord Justice of Appeal.
…and the key players in the high profile Brexit legal battle
As the Supreme Court considers legal challenges to Prime Minister Boris Johnson’s decision to prorogue Parliament, here is a look at the key players in the case before the UK’s highest court.
The court hears appeals on cases of the greatest public importance where it is considered there is an arguable point of law.
Now the Supreme Court, which will sit as a panel of 11 justices for only the second time in its 10-year history, must reconcile contradictory judgments issued by the English and Scottish courts.
– Gina Miller
The investment fund manager and campaigner first came to public prominence in 2016 when she launched a legal challenge to then prime minister Theresa May’s decision to use the royal prerogative to trigger Article 50, starting a two-year countdown to the UK’s departure from the EU.
The High Court ruled that the prime minister did not have the power to trigger Article 50 without the authority of Parliament, a ruling ultimately upheld by the Supreme Court in January 2017.
– Boris Johnson
Mr Johnson was appointed Prime Minister on July 24, after refusing to rule out proroguing Parliament during the contest to succeed Mrs May as leader of the Conservative Party.
The Queen prorogued Parliament, on Mr Johnson’s advice, on August 28 after Commons Leader Jacob Rees-Mogg, Lords Leader Baroness Evans and chief whip Mark Spencer flew to Balmoral for a Privy Council meeting.
A handwritten note of Mr Johnson’s dated August 16, replying to advice on prorogation, said Parliament sitting in September was a ‘rigmarole introduced … to show the public that MPs were earning their crust, so I do not see anything especially shocking about this prorogation’.
An unredacted version of the note leaked to Sky News revealed Mr Johnson wrote that the ‘rigmarole’ had been ‘introduced by girly swot (former prime minister David) Cameron’.
– Joanna Cherry QC MP and others
SNP MP Joanna Cherry, pictured at the Supreme Court on Tuesday, described the ruling as ‘historic’ and ‘fantastic’
Joanna Cherry, a barrister-turned-MP and the SNP’s justice and home affairs spokeswoman, is the lead claimant in the proceedings brought in Scotland.
The case is brought by a total of 79 petitioners, including Lib Dem leader Jo Swinson, Green Party MP Caroline Lucas and Plaid Cymru’s Westminster leader Liz Saville Roberts.
– Sir John Major
Sir John served as prime minister between 1990 and 1997, taking over from Margaret Thatcher and defeating Labour leader Neil Kinnock in the 1992 general election before losing to Tony Blair’s New Labour in 1997.
In July, after Mr Johnson refused to rule out prorogation, Sir John told BBC Radio 4’s Today programme that it would be ‘utterly and totally unacceptable’ for any British premier to shut down Parliament.
The former prime minister said he would bring a judicial review against any attempt to do so and intervened in Mrs Miller’s High Court case in September.
His lawyers have been given permission to make oral submissions at the Supreme Court hearing.
However, Sir John himself controversially prorogued Parliament ahead of the 1997 general election, which prevented a report on the cash for questions scandal being considered by MPs.
– Baroness Chakrabarti
The peer (below left) was director of civil liberties organisation Liberty from 2003 to 2016, during which time she was described by the Sun newspaper as ‘the most dangerous woman in Britain’.
Following her appointment in 2016 as the chairwoman of an inquiry into anti-Semitism in the Labour Party, Baroness Chakrabarti was nominated to the House of Lords and subsequently appointed Labour’s shadow attorney general.
MP Shami Chakrabarti and Raymond McCord at the Supreme Court this week
– Raymond McCord
The victims’ rights campaigner (above, right), whose son was murdered by loyalist paramilitaries in 1997, is one of three individuals bringing a legal challenge in Belfast, arguing that a no-deal Brexit would damage the Northern Ireland peace process.
Unlike in England and Wales and Scotland, cases in Northern Ireland cannot leapfrog straight to the Supreme Court, so Mr McCord’s case was heard by the Court of Appeal in Belfast on Monday – and he has also been given permission to intervene at the Supreme Court.