Boris Johnson’s QC today told the Supreme Court his decision to prorogue Parliament is ‘fundamentally political’ and ‘is not territory a court can enter’.
Sir James Eadie told the 11 senior judges who will rule on the landmark case that Mr Johnson’s advice to the Queen to shut down the Commons for five weeks until October 14 was not illegal.
The Government’s top barrister, known as the ‘Treasury Devil’, said any suggestion the Prime Minister’s intention was to ‘stymy Parliament’ is ‘untenable’.
The legal drama came on day two of the historic legal battle spearheaded by arch-remainer Gina Miller to decide if the Prime Minister broke the law and lied to Her Majesty.
But Supreme Court justice Lord Kerr hit back: ‘What if he decided to prorogue for one year? That is exercising me’ and questioning the PM’s motive he added: ‘Scrutiny of the Government’s actions coming up to Brexit is reduced. Can it be [anything] other than the case that that represents a political advantage?’
Sir James insisted the Prime Minister has the right to close Parliament even if it stops MPs scrutinising his plan to leave the EU ‘with or without a deal’ on October 31.
He said: ‘Even if the prorogation in the present case was 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’.
He said in 1949 when the Labour Government led by Clement Atlee did it to stop MPs and the House of Lords blocking its legislation.
Boris Johnson’s QC Sir James Eadie today said his decision to prorogue Parliament is his political right
‘Treasury Devil’ Sir James (pictured standing up on the left) said that ruling a prorogation is illegal ‘is not territory a court can enter’
Remain campaigner Gina Miller arrives at the Supreme Court in London with bodyguards and police– and backed by Sir John Major is trying to get judges to deem the prorogation of Parliament before Brexit illegal
Box after box of legal documents are wheeled into the Supreme Court today for the second day of the crunch
Supreme Court case so far and what happens next
Tuesday, September 18
Morning: Lord Pannick QC, Gina Miller’s lawyer launched appeal against her High Court loss arguing that Boris Johnson had abused power and acted illegally by proroguing Parliament for five weeks
Afternoon: 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 – but said the PM would abide by any ruling.
Wednesday, September 19
Sir James Eadie, QC for Boris, argued that the Supreme Court has no jurisdiction to rule on the lawfulness of the length of prorogation.
Lawyers for SNP MP Joanna Cherry will argue why judges in Scotland were right to rule the PM acted illegally.
Thursday, September 20
Ex-Tory PM Sir John Major will give evidence to undermine Boris Johnson’s case.
Tuesday September 24
Predicted date for judgment to be laid down by 11 judges.
He added: ‘Parliament has been considering Brexit for months and years. It has had the opportunity to make whatever legislative provisions it has wished over that period and it has, in fact, made a plethora of legislative provisions – including and starting with the authorisation of the giving of the Article 50 notice.’
Fellow judge Lord Wilson then laid into Boris Johnson for not giving a witness statement and said: ‘Isn’t it odd that nobody has signed a witness statement to say this is true?’.
But Sir James Eadie said it was ‘not at all’ unusual and revealed any application made by arch-Remainer Gina Miller’s legal team to cross-examine Mr Johnson would be ‘resisted like fury’.
Opening the Government’s case today Sir James said that a decision to prorogue is ‘inherently and fundamentally political in nature’.
Sir James also admitted that prorogation has the potential to ‘undermine’ Parliament’s ability to scrutinise those in power – but added: ‘Despite those features, this is a well-established constitutional function, to be exercised by the executive’.
And pointing the finger at MPs opposed to Brexit he added that Parliament could have taken ‘nuclear’ option of a No Confidence vote to sink the Government before the Commons was shut down.
He submitted: ‘They will involve considerations about how most effectively and efficiently to manage the conduct of the Government’s business, including specifically its legislative agenda in Parliament.’
He added: ‘(The issue is) whether it is appropriate for those controls to be exercised by the courts as opposed to Parliament. My submission is that these are political judgments.’
Lord Kerr demanded to know why the PM had not given a witness statement to the court and asked: ‘What if he decided to prorogue for one year? That is exercising me’
Sir James said the court was being invited to judge ‘political’ issues which would require ‘the formulation of legal controls’ to assess ‘the length of the prorogation’ and ‘whether this political juncture warrants a longer or a shorter prorogation’.
Boris Johnson (pictured at Whipps Cross University Hospital today ) will comply with the law if the Supreme Court rules against him in the landmark case on his decision to prorogue Parliament – but could try again before Brexit
He continued that the court would need to judge ‘whether Parliament would wish to legislate, what range of legitimate purposes for a longer or shorter prorogation there might be (and) what types or species of political considerations or advantages might operate as legal controls’.
He added that the court was effectively being invited to move ‘straight into the territory of political and parliamentary controversy’.
During a brief discussion about what relief the court should provide in the event it concludes the prorogation was unlawful, Lord Reed said the issue could be a ‘very difficult question’ for the judges.
Earlier Gina Miller was shepherded into the Supreme Court by bodyguards and police today for day two of the historic legal battle to decide if the Prime Minister broke the law and lied to the Queen by proroguing Parliament for five weeks.
The anti-Brexit figurehead, who believes Boris Johnson has abused his power, was again cheered by her supporters as she entered Britain’s highest court.
Mr Johnson yesterday warned Britain’s 11 most senior judges not to intervene in his decision to suspend Parliament, as Government lawyers admitted he could do it again if they find against him.
The UK’s highest court is hearing three days of historic appeals from two separate challenges brought in England and Scotland to the prorogation of Parliament.
Their ruling due next week 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.
Sir James Eadie was outlining the Prime Minister’s case and said: ‘We are dealing with a prerogative power. It is a prerogative power that has been expressly preserved by Parliament.’
He said the power was preserved in specific legislation, including the Fixed Term Parliaments Act, before highlighting aspects of case law.
Mr Johnson says the five-week suspension is to allow the Government to set out a new legislative agenda in a Queen’s Speech when MPs return to Parliament on October 14.
But those who brought legal challenges against the Prime Minister’s decision argue the prorogation is designed to prevent parliamentary scrutiny of the UK’s impending exit from the EU on October 31.
Showdown: Britain’s 11 most senior judges hear submissions in the Supreme Court today in a case that could change the direction of Brexit
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.
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.
What are the two Brexit cases the Supreme Court will rule on this week?
Gina Miller v The Prime Minister
Gina Miller is appealing against a ruling at the High Court in London where she lost last week.
Leading English judges declared that the courts have no right to interfere with Boris Johnson’s suspension of Parliament.
They said the Prime Minister’s decision to prorogue Parliament is a political matter and nothing to do with the law.
The High Court judges, led by Lord Chief Justice Lord Burnett, said the bid to overrule Mr Johnson by anti-Brexit campaigner Gina Miller, backed by former prime minister Sir John Major, relied on a ‘hitherto unidentified power’ of the law and would wreck the balance between politicians and the courts.
‘This is territory into which the courts should be slow indeed to intrude by recognising an expanded concept of Parliamentary Sovereignty,’ the three judges ruled.
Joanna Cherry v Advocate General for Scotland
The Government is appealing against a ruling made at the Court of Session in Edinburgh that declared Boris Johnson has acted unlawfully in shutting down Parliament for five weeks.
Scotland’s highest civil court said the Prime Minister had ordered parliament to be prorogued for five weeks in order to ‘stymie parliamentary scrutiny’ of Brexit.
The court said the prorogation was ‘unlawful’, and suggested the PM had misled the Queen over the reasons for the suspension when she was asked to sign it off earlier this month.
Critics, including former Tory attorney general Dominic Grieve, said Mr Johnson would have to resign if it was found that he had ‘misled the Queen about the reasons for suspending parliament’.
Downing Street said it was ‘disappointed’ with the verdict and lodged an immediate appeal with the Supreme Court.
At least 40 people were already queuing to watch the second day’s proceedings at the Supreme Court at around 8am.
Two men at the front of the queue said they had been waiting since 6.30am.
There is also a strong police outside the court building in Parliament Square in central London.
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.
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’.
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. 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.
Mr Johnson’s lawyer Lord Keen QC (right of picture), Advocate General for Scotland, would not rule out the PM trying to shut down the Commons again
Constitutional QC Lord Pannick, who is representing Gina Miller (pictured left behind him, and right outside court), accused Boris Johnson of abusing his power as Prime Minister to try to force Brexit
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
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.’
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.’
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 today, 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.
What happens next in the Brexit crisis?
Here is how the coming weeks could pan out:
September 14-17: Lib Dem conference takes place in Bournemouth
September 17: Supreme Court hears case on whether prorogation of Parliament was illegal.
September 21-25: Labour conference in Brighton
September 29-October 2: Tory conference takes place in Manchester, with Mr Johnson giving his first keynote speech as leader on the final day. This will be a crucial waypointer on how Brexit talks are going.
October 14: Unless it has already been recalled, Parliament is due to return with the Queen’s Speech – the day before Mr Johnson had hoped to hold a snap election.
October 17-18: A crunch EU summit in Brussels, where Mr Johnson has vowed he will try to get a Brexit deal despite Remainers ‘wrecking’ his negotiating position.
October 19: If there is no Brexit deal by this date Remainer legislation obliges the PM to beg the EU for an extension to avoid No Deal.
October 21: Decisive votes on the Queen’s Speech, which could pave the way for a confidence vote.
October 31: The current deadline for the UK to leave the EU.
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.
– 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.