The Brexit legal battle over Boris Johnson’s decision to shut down Parliament for five weeks starts in the Supreme Court today where 11 judges will have the final say on whether the Prime Minister broke the law and misled the Queen.
Britain’s highest court will sit for the next three days where arch-remainers including Gina Miller and Sir John Major will argue that Mr Johnson is trying to ‘stymy’ scrutiny of his Brexit policy to force through No Deal.
But the Prime Minister said last night it was ‘claptrap’ that he had stopped MPs having their say on Brexit and said a Queen’s Speech was required to end the longest Parliamentary session since the English civil war ended in 1651.
Over the next three days the Supreme Court in London will hear appeals from two separate challenges brought in England and Scotland to the prorogation of Parliament and will return verdicts in both by next week.
On the same day last week an Edinburgh court ruled it was unlawful while the High Court in London disagreed and said the decision was ‘purely political’.
What the 11 Supreme Court judges finally decide will have huge implications for Boris Johnson’s premiership and could even influence whether Britain manages to leave the EU or not.
The justices, led by president Lady Hale, will grapple with whether the PM’s decision about the length of the prorogation is not a matter for the courts – or unlawful.
The Prime Minister told the BBC last night he had the ‘greatest respect for the judiciary’ and asked if he would recall MPs if he lost the case he added: ‘I think the best thing I could do is wait and see what the judges say.’
Boris Johnson’s Brexit strategy could be saved or completely unravel if the Supreme Court sides with remainers including Gina Miller who say prorogation of Parliament was unlawful
Protesters outside the Supreme Court today where the three-day hearing is due to begin at 10.30am
Members of the public queue to enter the court along with one woman who has gagged herself and carried a sign reading ‘No Parliament, no voice’
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.
John Major will take to the stand to give evidence
John Major will take the stand in the case against Boris Johnson’s decision to suspend Parliament, it emerged last night.
In an unprecedented development, the former Conservative leader will appear at the Supreme Court on Thursday in a case which will decide whether Mr Johnson acted illegally by proroguing Parliament earlier this month.
Sir John will be a lynchpin in the case brought by pro-Remain businesswoman Gina Miller, who said the Prime Minister may have breached ‘the legal principle of Parliamentary sovereignty’ and that the act represented an ‘abuse of power’.
Yesterday, another former Tory prime minister, David Cameron, accused Mr Johnson of ‘sharp practice’ for proroguing Parliament.
But Mr Johnson said it was ‘claptrap’ for people to say he had stopped MPs having their say on Brexit.
He told the BBC: ‘All this mumbo jumbo about how Parliament is being deprived of the opportunity to scrutinise Brexit.
‘What a load of claptrap. Actually, Parliament I think has lost about four or five days.’
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.
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.
The High Court in London dismissed the case brought by businesswoman and campaigner Gina Miller – who previously brought a successful legal challenge against the Government over the triggering of the Article 50 process to start the Brexit countdown – finding that the length of the prorogation was ‘purely political’.
Giving reasons for their ruling on September 11, three of the most senior judges in England and Wales said: ‘We concluded that the decision of the Prime Minister was not justiciable (capable of challenge). It is not a matter for the courts.’
But, on the same day, the Inner House of the Court of Session in Edinburgh ruled that Mr Johnson’s decision was unlawful because ‘it was motivated by the improper purpose of stymying Parliament’.
Lord Carloway, Scotland’s most senior judge, said: ‘The circumstances demonstrate that the true reason for the prorogation is to reduce the time available for parliamentary scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance, given the issues at stake.’
Following that ruling, a Downing Street source suggested the MPs and peers who brought the legal challenge ‘chose the Scottish courts for a reason’ – prompting criticism from Scottish First Minister Nicola Sturgeon, who branded the comments ‘deeply dangerous’, as well as Justice Secretary Robert Buckland.
Boris Johnson’s description of former Prime Minister, David Cameron, as ‘a girly swot’ in unredacted cabinet papers disclosed to court
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
Mrs Miller’s challenge was supported by former prime minister Sir John Major, shadow attorney general Baroness Chakrabarti and the Scottish and Welsh governments, who are all interveners in the Supreme Court case.
A cross-party group of around 75 MPs and peers, led by SNP MP Joanna Cherry QC, was responsible for the Scottish challenge and the appeal against the Court of Session’s decision is being brought by the Advocate General for Scotland, on behalf of the Westminster Government.
Victims’ campaigner Raymond McCord – who brought separate proceedings in Belfast, arguing that a no-deal Brexit would damage the Northern Ireland peace process – has also been given permission to intervene in the Supreme Court case.
In a statement ahead of the hearing, Mrs Miller said: ‘As with my first case, my Supreme Court case is about pushing back against what is clearly a dramatic overreach of executive power.
‘This is an issue that cuts across the political divides – and the arguments about the EU – and it has united remainers and leavers and people of all political complexions and none in opposition to it.
‘The precedent Mr Johnson will set – if this is allowed to stand – is terrifying: any prime minister trying to push through a policy that is unpopular in the House and in the country at large would from now on simply be able to resort to prorogation.
‘No one could ever have envisaged it being used in this way: this is a classic power-grab.’
She added: ‘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.’
SNP MP Joanna Cherry, pictured centre in Edinburgh after her win, described the ruling as ‘historic’ and ‘fantastic’ but the Supreme Court will have the final say
Mr Johnson advised the Queen on August 28 to prorogue Parliament for five weeks from the week of September 9.
The Supreme Court judges will hear submissions from the parties and interveners from Tuesday to Thursday, but it is not clear when they will give a ruling.
Yesterday, another former Tory prime minister, David Cameron, accused Mr Johnson of ‘sharp practice’ for proroguing Parliament.
But Mr Johnson said it was ‘claptrap’ for people to say he had stopped MPs having their say on Brexit.
He told the BBC: ‘All this mumbo jumbo about how Parliament is being deprived of the opportunity to scrutinise Brexit. What a load of claptrap. Actually, Parliament I think has lost about four or five days.’
And senior Tories last night claimed that the Prime Minister is ready to ignore a controversial law pushed through Parliament forcing him to seek another Brexit delay if a deal is not reached by October 19 – even if it means he is dragged to court.
Mr Johnson yesterday said another extension would be ‘crackers’ and insisted the law would not stop him taking the UK out of the EU next month – with or without a deal.
Eleven supreme court justices will today begin to hear the claim that Mr Johnson acted unlawfully in advising the Queen to suspend Parliament for five weeks in order to stifle debate over the Brexit crisis.
Documents published by the Supreme Court yesterday show how the Prime Minister’s team will argue decisions to prorogue are a matter of ‘high policy’ and not law – meaning the courts should not intervene. They revealed Sir John will make an ‘oral intervention’ for up to 20 minutes on Thursday. The former prime minister is listed as an ‘intervener’ on Miss Miller’s case, alongside Labour’s Baroness Chakrabarti.
Miss Miller’s written case said: ‘The Prime Minister’s advice to Her Majesty to prorogue Parliament for a period of five weeks is an unlawful abuse of power, because there has been no prorogation for longer than three weeks in the past 40 years and prorogation is typically for a week or less.
‘To prorogue Parliament for such a lengthy period removes the ability of Parliament to take such action as it sees fit… relating to the arrangements for the UK to leave the EU when time is very much of the essence…’
It adds that Mr Johnson’s reasons for advising the prorogation were ‘improper’ and influenced by ‘his concern that Parliament might take steps which would undermine the Government’s negotiating position with the EU’.
The case will be led in court by Lord Pannick, who led Miss Miller’s previous successful case forcing the Government to give MPs a vote on triggering Article 50.
The documents reveal Mr Johnson’s case is that the claims are ‘non-justiciable’ – meaning they are not within the scope of the courts.
The PM’s case points out that MPs could have legislated to ensure that Parliament continued to sit during the prorogation – but it did not do so.
And it highlighted that the Queen is under no obligation to accept the advice of the Prime Minister.
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.