Boris Johnson yesterday warned Britain’s most senior judges not to intervene in his decision to suspend Parliament, as Government lawyers admitted he could do it again.
The Prime Minister has given an undertaking to comply with any ruling by the Supreme Court to recall MPs.
But Lord Keen QC, a justice minister who is representing Mr Johnson at the Supreme Court, refused to rule out a second prorogation of Parliament if the court decides the first was unlawful.
Earlier, Justice Secretary Robert Buckland also declined to eliminate the possibility of a second suspension – an idea raised by the Prime Minister’s chief adviser Dominic Cummings last week.
Showdown: Britain’s 11 most senior judges hear submissions in the Supreme Court yesterday
Remain campaigners accused Mr Johnson of using ‘weasel words’ as it was revealed he told Supreme Court judges they had no jurisdiction over the prorogation and risked ‘entering the political arena’ if they blocked it.
Mr Johnson’s decision to advise the Queen to prorogue Parliament for five weeks was yesterday challenged in the highest court in the country, where lawyers for anti-Brexit activists said it was the greatest abuse of power by a Prime Minister in five decades.
The legal showdown will decide two separate cases, brought in England and in Scotland, against the suspension, which saw senior judges make opposing rulings.
Scotland’s highest court ruled that the Prime Minister effectively misled the Queen and that the suspension was unlawful, while the High Court in London ruled it was ‘purely political’ and not a matter for the courts.
Mr Johnson’s decision to advise the Queen to prorogue Parliament for five weeks was yesterday challenged in the highest court in the country
In a written submission to the Supreme Court, lawyers for Mr Johnson and Lord Keen said it would be inappropriate for Britain’s top judges to intervene.
Lord Keen, the Advocate General for Scotland, told the court the Government was entitled to prorogue Parliament, and said suspensions had previously been used for political reasons in Britain’s history.
He said Mr Johnson would comply with the Supreme Court’s ruling even if it concluded the suspension was unlawful. But he warned that such a decision would be ‘constitutionally inappropriate’ and would ‘drag the courts into areas of the most acute political controversy’.
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 has insisted he has the ‘greatest respect for the judiciary’ and said the independence of the courts was ‘one of the glories of the UK’.
But Labour’s shadow attorney general, Shami Chakrabarti, said his assurances were ‘weasel words’ from a Prime Minister desperate to avoid scrutiny. She accused Mr Johnson of operating in a ‘bizarre dystopian universe’ in which ministers felt they were above the law.
Former attorney general Dominic Grieve, one of 21 rebel Tories who backed a law to stop No Deal, said: ‘The Prime Minister should stop trying to find ways of slipping around the law and just obey it.’
Remain campaigner Gina Miller – backed by Sir John Major – took the case to the Supreme Court after she lost a High Court challenge
How Parliament was shut down at outbreak of WW1
The suspension of Parliament has been used for political reasons during key moments in Britain’s history, lawyers for the Government argued yesterday.
Rebuking the claims of campaigners, the Government cited how Parliament was broken up – or ‘prorogued’ – for weeks at the outbreak of the First World War in 1914.
Legal submissions setting out Boris Johnson’s case said ‘the history of the power to prorogue Parliament supports the fact that it has been used for political purposes’.
The document said prorogation had been used at times of ‘political importance’.
This included ‘restricting the time otherwise available to debate legislation’, as well as occasions when the ‘Government of the day lacked a majority in the House of Commons’. Lord Keen, the Advocate General for Scotland, representing the Government, said Parliament was prorogued from September 18 until October 27, 1914, shortly after the outbreak of war. He told the Supreme Court: ‘That clearly was not for the purpose of the King’s Speech.’
The written submissions noted that the King’s Speech on prorogation at the time called for ‘action not speech’.
Lord Keen said the Government arranged for two one-day prorogations in 1948 to force through legislation on how the House of Lords could block bills. ‘This last example was clearly for a party political purpose,’ he added. ‘It was a naked political reason.’
Remain campaigner Gina Miller – backed by Sir John Major – took the case to the Supreme Court after she lost a High Court challenge. Her lawyer Lord Pannick QC yesterday said the suspension was the biggest abuse of power by a Prime Minister for 50 years.
He told the court that Mr Johnson had advised the Queen to prorogue Parliament because he feared MPs would ‘frustrate or damage’ his Brexit plans.
That was an ‘improper purpose’, Lord Pannick said, adding: ‘The Prime Minister’s motive was to silence Parliament for that period because he sees Parliament as an obstacle for the furtherance of his aims.’ Both QCs faced pointed questions from the 11 Supreme Court justices who heard the case. Lord Reed, the Supreme Court’s deputy president, asked if Parliament could have blocked the prorogation by passing a motion of no confidence in the Government.
Lord Pannick replied saying the court had to decide if Mr Johnson’s advice to the Queen was legal, and said it was for the court to hold him to account. Lord Keen, for the Government, said Parliament could have chosen to block the prorogation, but failed to do so. He said MPs had ‘adequate mechanisms’ and opportunities to pass new laws to prevent suspension.
Earlier, the president of the Supreme Court, Lady Hale, said the outcome of the case would have no effect on Britain leaving the EU. She told the packed courtroom: ‘The determination of this legal issue will not determine when and how the United Kingdom leaves the EU.’
Protesters outside included a man wearing an Incredible Hulk costume with a Johnson-esque floppy blond wig – a reference to the Prime Minister’s remarks that the UK would break out of the EU’s ‘manacles’ like the cartoon Hulk.
Millions watched proceedings live on the Supreme Court website. The live-stream page usually gets around 20,000 hits a month, but was viewed 4.4 million times yesterday morning.
A Government insider last night said: ‘We are not going to prorogue again unless there is some extraordinary circumstance.’
Earlier, Justice Secretary Robert Buckland also declined to eliminate the possibility of a second suspension – an idea raised by the Prime Minister’s chief adviser Dominic Cummings last week
Supermarkets to quiz Gove on No Deal plan
Supermarket bosses will meet Michael Gove today for a No Deal summit in their first showdown following a row over food shortages.
The British Retail Consortium previously criticised Mr Gove after he dismissed talk of Brexit supply problems. They said his comments were ‘categorically untrue’.
A source said: ‘What the supermarkets are worried about is that two days after a No Deal Brexit, with shortages in the shops, the Government will turn round and say [stores] did not do enough to prepare.
‘Supermarkets have been clear that they can stockpile some items, but that’s not an option for imports of fresh food.’ Bosses of Waitrose, Aldi and online grocer Ocado have all said there was ‘no one in the industry who can guarantee’ there would not be random shortages.
Ocado yesterday said it had switched suppliers on a string of fresh goods from Europe back to the UK.
Last week MPs forced the Government to publish its Operation Yellowhammer contingency plans on the potential impact of a No Deal Brexit on October 31. It said the fresh food supply ‘will decrease’.
The Cabinet Office has been contacted for comment.
Why in God’s name is a former Tory PM trying to disgrace a serving one?
We live in tumultuous times. Nevertheless, I don’t believe that any former prime minister has ever taken the stand to inflict damage on an existing PM of the same party.
But that is what is expected tomorrow, when Sir John Major may step forward in the Supreme Court in the action he’s bringing against Boris Johnson over the prorogation of Parliament.
Why is he doing it? Let’s give Sir John the benefit of the doubt, and accept that he is a principled Remainer who believes a No Deal Brexit would be a disaster for the British economy.
But that is what is expected tomorrow, when Sir John Major may step forward in the Supreme Court in the action he’s bringing against Boris Johnson over the prorogation of Parliament
In fact, judging by his statements over recent years, he thinks Brexit in any shape is a very bad idea, and bitterly regrets the 2016 referendum result.
Sir John has long been strongly pro-EU and, as a Conservative Prime Minister in the Nineties, successfully fought off attempts by Tory backbench Eurosceptics to scupper the Maastricht Bill, which significantly enlarged the powers and scope of the EU.
All this is fair enough. Sir John is entitled to his views, which have the virtue of being consistent and deeply felt. Whatever else, his behaviour is neither cynical nor self-serving.
But why in God’s name is he doing his utmost to disgrace a Tory Prime Minister, and thereby possibly pave the way for a hard-Left government led by Jeremy Corbyn? For that would be a likely outcome of the case he and anti-Brexit campaigner Gina Miller are bringing.
For that would be a likely outcome of the case he and anti-Brexit campaigner Gina Miller are bringing
Imagine, for a moment, that the 11 judges of the Supreme Court decide that Mr Johnson’s prorogation of Parliament was illegal. Most observers think this eventuality unlikely, but only a fool would rule it out. After all, three senior Scottish judges have already come to this conclusion.
Being only human, the 11 judges can’t fail to be impressed by the role of a former prime minister in this case. With Sir John on board, the arguments against Boris Johnson will surely be more formidable than they would have been if made by Gina Miller alone.
Easy though it may be to poke fun at Sir John as an ineffectual prime minister, his mere holding of the office will undoubtedly lend him stature in the eyes of the judges. The involvement of the ex-PM could be decisive.
It is galling to watch a former proroguer such as Sir John Major getting on his high horse to claim that Boris Johnson has done something inexcusable when he has been guilty of exactly the same behaviour
If the judgment goes against Mr Johnson, his already precarious position would be undermined. The Opposition would re-double its accusation that he is riding roughshod over the British constitution, and bending the rules to his political advantage. In short, that he is not to be trusted.
I expect the Prime Minister would survive such an outcry, at any rate in the short term. But the likely consequence is that he and the Government would be gravely weakened, and that the prospects of a Corbyn-led government would be much enhanced.
Doesn’t Sir John Major fear that? Presumably as a life-long Tory he won’t relish the idea of self-declared Marxist John McDonnell being put in charge of the economy. I’ve little doubt he recognises that such an outcome could be catastrophic.
One can therefore only suppose that he believes Mr Johnson’s prorogation of Parliament – which has resulted in the loss of only between five and seven days of sittings – was such an unprecedented outrage that it trumps all other considerations.
In that case, Sir John must be a huge hypocrite. Although it appears to have slipped his memory, he was himself responsible for proroguing Parliament for 19 days as Prime Minister in 1997.
That suspension had the effect of delaying a highly critical report into Conservative MPs taking bribes until after the general election. In the event, Sir John and the Tories were wiped out by Tony Blair’s New Labour, but he cannot have known this would happen when he prorogued Parliament.
Of course, we can’t be certain this was the reason for Sir John’s prorogation. It’s an intelligent surmise – just as it is an intelligent surmise that Mr Johnson prorogued Parliament partly because he would like a Queen’s Speech and a new legislative programme, but also because he wants to stymie disputatious Remainer MPs for a short while.
In both instances, prorogation was a matter of politics. One can decry this. Or one can say this is the way governments operate. In 1948, Clement Attlee’s Labour administration prorogued Parliament in order to sideline Tory peers who had opposed a key Bill.
It is galling to watch a former proroguer such as Sir John Major getting on his high horse to claim that Boris Johnson has done something inexcusable when he has been guilty of exactly the same behaviour.
Interestingly, his former No 10 spokesman, Sir Christopher Meyer, yesterday teased him on Twitter, wondering what the Supreme Court judges would make of these inconsistencies. He expected them ‘to have the wit to put him through the wringer’.
There’s nothing wrong, of course, with Sir John being a convinced Remainer. What’s hard to swallow is his apparent concealment of his motives in legal rigmarole and moral grandstanding.
Incidentally, Sir John was so ill-prepared for his case that in July he compared Boris Johnson to Charles II, who he claimed came unstuck when he prorogued Parliament ‘in the 1640s, and it didn’t end well for him’.
In fact, it was his father, Charles I, who came unstuck – ending up being beheaded – after suspending Parliament in 1629. For 11 years. Not just for a few days, as Mr Johnson has done, and which has led Lib Dem leader Jo Swinson to describe him as a dictator. What madness! Sir John is not just guilty of gargantuan hypocrisy, and potentially opening the door to a Corbyn government, whose policies would, in the view of many observers including myself, make No Deal seem like a picnic.
The Supreme Court case is also sucking up government time and energy when Mr Johnson and his colleagues should be straining every sinew to negotiate a deal that will honour the outcome of the referendum while safeguarding the economic interests of this country.
And if the judges should rule against the Government, what likelihood is there that it would be able to pick up the pieces and get the show firmly back on the road? Very little, I should have thought.
It challenges credulity that Sir John, of all men, should show such little sympathy for Mr Johnson’s predicament. For months, he and his government were besieged by Eurosceptic guerrillas in the Commons attempting to defeat the Maastricht Bill.
Now the former victim of parliamentary ambushes turns out to be more ruthless and unforgiving than his erstwhile most merciless persecutors. Why can’t he find it within himself to give Boris a chance?
Because he is a Remainer, I suppose. But not a generous, open-hearted one. Not an imaginative figure attempting creatively to plot a way through our dreadful difficulties, but a destructive and divisive force.
When he might be playing the part of an elder statesman, trying to bridge the huge gulf that separates our country, this former prime minister has confirmed his reputation as a man who is both irredeemably petty and partisan.