Afternoon summary
- Boris Johnson has refused to rule out suspending parliament for a second time. (See 5.53pm.) He was speaking as a three-day supreme court hearing held to determine whether the current suspension (prorogation) is lawful came to an end. Lady Hale, president of the court, said it hopes to publish a decision early next week. In the final session Lord Pannick QC, representing Gina Miller, said that if the government lost parliament should reconvene next week, with the Speaker and Lord Speaker summoning MPs and peers back to work. See 4.57pm for a full summary of the day’s events in court.
- Irish premier Leo Varadkar says he will try to get a deal on Brexit when he meets Boris Johnson in New York next week. “We were in touch today. I’m going to meet him next week in New York and try to get a deal,” he said. The leaders will both be attending the UN Climate Action Summit.
That’s all from me for today.
Thanks for the comments.
Boris Johnson refuses to rule out suspending parliament again
Speaking to reporters on his visit to Wiltshire, Boris Johnson refused to rule out proroguing parliament a second time if he lost the supreme court case. Asked to rule out this option, he replied:
I have the greatest respect for the judiciary in this country. The best thing I can say at the moment whilst their deliberations are continuing is that obviously I agree very much with the master of the rolls and the lord chief justice and others who found in our favour the other day. I will wait to see what transpires.
Johnson also claimed that the government was making progress in the Brexit talks. He told reporters:
I don’t want to exaggerate the progress that we are making, but we are making progress ...
You heard Jean-Claude Juncker yesterday say that he doesn’t have any emotional attachment to the backstop. Now that is progress - they weren’t saying that a month ago.
But let’s see where we get. It’s vital, whatever happens, that we prepare for no deal.
Boris Johnson has told British troops being deployed to Mali that joining a peacekeeping mission in the area was a “good idea” in the hope that the French would be “nice to us”. As the Press Association reports, Johnson was meeting with soldiers from the British Army at the Salisbury Plain training zone in Wiltshire, to see how military spending by the government was being implemented.
After learning some were to be deployed to Mali as part of efforts by the United Nations in the African country, Johnson referred to the French President Emmanuel Macron, the Press Association reports. “Mali, that was the promise we made to the French,” Johnson said.
It was a very good idea in the hope that they would be nice to us ... We’re waiting to see how that works out, Monsieur Macron.
Updated
From my colleague Jennifer Rankin
Three British 'non-papers' have been sent to Michel Barnier's team: food-safety, animal and plant health (SPS), customs + manufactured goods.
— Jennifer Rankin (@JenniferMerode) September 19, 2019
EU diplomats not optimistic about breakthrough that has eluded everyone for two years.
Scottish government abandons 'named person' scheme
The Scottish government has scrapped one of its headline policies, its controversial “named person” scheme, only a few days after bowing to opposition demands for an inquiry into two botched hospital projects.
Its sharp reversals in two key areas on which the Scottish National party government was refusing to budge until now suggests the SNP is shoring up its policy programme in preparation for a general election.
The named person scheme, a programme where every child had a designated adult such as a headteacher to safeguard their welfare, has been dubbed a “snooper’s charter” by critics, partly since families might have no idea they were under scrutiny.
The Scottish government went all the way to the UK supreme court to defend the policy, where judges said its aim was benign but it breached the right to privacy and family life under the European convention on human rights.
It was due to be introduced three years ago. John Swinney, the education secretary, told Holyrood he had now scrapped it entirely.
Two days ago, Jeane Freeman, the health secretary, announced an independent public inquiry into the handling of contracts to build the Queen Elizabeth super-hospital in Glasgow, where two children died earlier this year, and the new Royal Hospital for Sick Children, which will open several years late next year.
With both measures, the temporary pain of a climbdown neutralises two potentially damaging lines of opposition attack in an election.
Updated
Supreme court prorogation hearing - Summary
Here are the main points from today’s supreme court hearing in the case that will determine whether or not Boris Johnson’s decision to prorogue parliament for five weeks was lawful. Today was the last day of a three-day hearing. You can read Tuesday’s highlights here, and Wednesday’s highlights here and here.
- Lady Hale, president of the court, has said the court hopes to publish its decision “early next week”. As the case concluded, Hale said: “We hope to be able to publish our decision early next week.” That implies that the court will produce a full written judgment next week - rather than a preliminary decision, with reasons to follow. Her thinking may have been influenced by the knowledge that, if the court were to find against the government, a lot would depend on exactly what it said about what should happen next. This is not at all straightforward because ...
- Boris Johnson has signalled that, even if he loses the case, he does not want to reconvene parliament before 14 October - which is when prorogation was originally due to end. In a document submitted to the court (pdf), the government has set out three options as to what might happen if Johnson were to lose. It says one option would be for Johnson to make a fresh, lawful prorogation decision, which could also delay the return of parliament until 14 October. The document acknowledges that the court order Johnson to get parliament reconvened sooner. But, in a clear hint that it wants the court to reject this option, it says that this would have “very serious practical consequences” that would, it implies, inconvenience the Queen and disrupt the security arrangements being put in place for 14 October. The document says:
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.
- Lord Pannick QC, the lawyer representing Gina Miller, has told the court that if it decides prorogation was unlawful, parliament should reconvene next week. He suggested that the Speaker, John Bercow, and the Lord Speaker, Lord Fowler (Bercow’s equivalent in the House of Lords) could decide to recall parliament themselves. (See 3.08pm.) Several judges questioned whether that process would be legally watertight. Their comments were taken by some observers as a sign that the court is minded to find against the government. The questions also reflect the fact that there is some uncertainty as to what a declaration that prorogation was unlawful would actually mean, and whether it would amount to saying that prorogation never happened and parliament remained in session anyway. The government argues that, if the court rules prorogation was unlawful, it would be up to the PM to reconvene parliament, by making a request to the Queen under the Meeting of Parliament Act 1797.
- Lord Keen, the advocate general for Scotland who was representing the government, has told the court that it is not equipped to decide on whether prorogation was right or wrong. This was a political matter, not a matter for the courts, he said. It was “forbidden territory” for the court, he said. (See 2.17pm.) He went on:
In my respectful submission, the applicants and the petitioners are inviting the court into forbidden territory and into what is essentially a minefield, an ill-defined minefield that the courts are not - with the greatest of respect - properly equipped to deal with.
- Lady Hale, president of the supreme court, has stressed that the court is not deciding when or how Brexit might happen. In her final remarks, she said:
I must repeat that this case is not about when and on what terms the United Kingdom leaves the European Union. The result of this case will not determine that. We are solely concerned with the lawfulness of the prime minister’s decision to advise Her Majesty to prorogue parliament on the dates in question.
Updated
The chancellor, Sajid Javid, has been in Dublin for the third meeting with his Irish counterpart, Paschal Donohoe, since he became chancellor eight weeks ago.
It demonstrates that a direct channel of communication has been opened at a senior level in both governments despite the Brexit impasse.
Javid, who pledged to throw millions of pounds at the border issue during the Tory party leadership campaign, and Donohoe both reiterated the importance of maintaining good Anglo-Irish relations irrespective of the Brexit outcome. Javid said:
Whatever happens next year regardless of Brexit, it is essential that not only we maintain the strength of our relationship between our two great countries but we find ways to enhance that.
Updated
Gina Miller left the supreme court to cheers and boos from the large crowd waiting outside the court building. As the Press Association reports, a small group of pro-Brexit protesters shouted “shame on you” and “traitor” as she got into a waiting car.
Here are three lawyers who regularly tweet who all think it is looking bad for the government in the supreme court case.
Pannick is a cross bench peer as well as a QC. They are now hearing his submission with the weight of a parliamentarian behind it - as to the right remedy.
— Dinah Rose QC (@DinahRoseQC) September 19, 2019
I'm calling this for the Claimants. I think it's over.
Do we dare a double prediction?
— Schona Jolly QC (@WomaninHavana) September 19, 2019
I'm with Dinah...
(Noting Lady Hale expressly said we should make no assumptions) https://t.co/C5OKZYKtTq
This is a now *very* detailed discussion of remedies
— David Allen Green (@davidallengreen) September 19, 2019
Government lawyers will be squirming
Pannick also providing a practical way forward for court and parliament to sort problem out speedily, if Supreme Court goes against government
From Joshua Rozenberg, the legal commentator
It looks as if Lady Hale hopes to produce a reasonably complete judgment over the weekend representing the view of the court — or of a majority if they are split. Individual sections could be written by different justices. Much better than a bald decision with reasons to follow.
— Joshua Rozenberg (@JoshuaRozenberg) September 19, 2019
Joanna Cherry says she would like the court to be as clear as possible about what should happen next if it finds against the government. She said parliament should sit again as soon as possible.
At the moment parliament is not due to reconvene until three weeks on Monday – 14 October.
If parliament does return next week, that would clash with the Labour party conference, which starts this weekend and runs until Wednesday, and with the Conservative party conference, which starts next weekend and runs until Wednesday 2 October.
It is normal for parliament to have a recess lasting three weeks in the autumn to allow time for the Lib Dem, Labour and Conservative conferences. This has always been a point of contention with the SNP, who always hold their conference a bit later in the autumn and who do not get allocated a recess to ensure that their MPs don’t have to be in two places at the same time.
Updated
Joanna Cherry, the SNP MP who launched the legal challenge in Scotland, has just told BBC News that she was “very encouraged” by the long discussion about remedies that the court had a few minutes ago, at the end of the hearing. (See 3.08pm and 3.11pm.) She says she is “cautiously optimistic”.
The assumption is that the judges would not be taking an interest in the logistics of what might happen if they find against the government unless there is a good chance that they will.
Supreme court hopes to rule on whether prorogation lawful 'early next week', says Lady Hale
Lady Hale, president of the court, thanks the court staff and everyone else involved in the case.
She stresses what she said at the opening of the case – that this hearing will not decide whether or how the UK leaves the EU.
She says the court hopes to be able to publish its decision “early next week”.
And that’s it.
I will post a summary shortly.
Updated
Pannick refers to paragraph 17 of the government’s remedies paper.
The court may find that it would be unlawful for parliament to remain prorogued for any further period and that advising the sovereign to bring forward the meeting of parliament pursuant to the Meeting of Parliament Act 1797 is the only option lawfully open to the prime minister. In that event, a declaration would be sufficient on the basis that the prime minister would comply with the terms of a judgment having that effect. It would of course be open to the court to consider whether to make a mandatory order or interlocutor requiring the prime minister so to advise Her Majesty. However, the grant of mandatory relief is in the discretion of the court, and that discretion is to be exercised having regard to the facts as they stand now and the practical consequences of any order.
Pannick suggests this might be the best approach.
Hale says the court will decide what to do. “None of this is easy,” she says.
Pannick says he hopes it will not be necessary to apply for further relief (ie, to go back to court again.)
Updated
Lord Kerr puts it to Pannick that, if the advice to prorogue parliament was unlawful, any action taken upon that advice had no effect.
Pannick says he assumes the court will give a judgment, and produce its reasons later (a standard court procedure).
“Make no assumptions,” says Lady Hale.
Pannick says he is asking for a declaration that the PM’s advice was unlawful. But if the advice was unlawful, the order in council that followed proroguing parliament was also unlawful, he says.
Pannick says, if court rules prorogation unlawful, Speaker should be entitled to reconvene Commons
Lady Hale asks if the PM needs to do anything to ensure parliament meets next week.
Pannick says it could be the case that the Speaker and the Lord Speaker could take action if the court were to rule prorogation unlawful.
Then parliament could decide how it should proceed, he says.
He says in his view that would be the best way forward. Parliament itself should decide what would happen next.
Lord Kerr asks Pannick to clarify that, following a ruling from the supreme court, parliament could meet without the PM having to reconvene it.
Pannick says that is his submission. MPs and peers would ask the Speaker and the Lord Speaker to reconvene parliament, so parliament could then decide.
All that would stand in the way of that would be the PM refusing to take action.
He says his argument is that, if the PM did not act, the Speaker and the Lord Speaker could act.
Another judge says, even if the court ruled prorogation unlawful, it would still stand prorogued, unless there were a proclamation under the Meeting of Parliament Act 1797 initiated by the PM.
Pannick says his submission is that parliament could meet. He says that would be a proceeding of parliament, not subject to legal challenge.
Another judge says the court needs a bit more clarity than that.
Lady Hale, the president of the court, says the court will address this. She says:
This court will produce an answer as soon as it humanly can.
Updated
Here is the text of the government’s remedy document (pdf), which has just been formally published on the government’s website.
Pannick says parliament should resume 'as soon as possible next week' if government loses
Pannick says the court should make a declaration as soon as possible.
He says, if the government loses, parliament should resume “as soon as possible next week”.
Pannick says the supreme court should do in this case what it does in other public law cases – apply constitutional principles to the facts of the case.
And then, giving the PM a “broad margin of discretion”, the court should ask if the PM went beyond his powers.
He says the court does not need to decide exactly what powers the PM does have over prorogation.
He refers to the supreme court’s ruling on employment tribunal fees in the Unison case. In that case the court ruled that the fees were excessive – without trying to determine at what level they should be set.
Updated
Pannick says the government is arguing that this case is not justiciable, and that there is no element of constitutional law involved.
But, Pannick says, he is arguing that constitutional law is engaged - and that the issue is justiciable.
The executive, “the junior partner” in the constitution, cannot claim an unfettered power to close down the legislature, the “senior partner”, he says.
Pannick says he would invite the court to draw the inference that the length of the prorogation was influenced by the PM’s desire to stop parliament obstructing his policies.
There is no other rational reason for the length of the prorogation, he says.
And he says that amounts to an improper purpose.
Lord Pannick sums up case against government
Lord Pannick QC, who represents Gina Miller, is summing up the case against the government now.
He says the government has not explained why it needed a five-week prorogation.
He says the effect of the prorogation has been to shut down scrutiny of the government by parliament, particularly by select committees.
He refers to what Boris Johnson said in a note disclosed to court about the September sitting just being a “rigmarole ... to show the public that MPs were earning their crust”.
He says Keen said a few minutes ago that the court should look at the government documents with an open mind. Pannick says he is asking them to do no more than that, and to think about what it means.
In September bills were still going through parliament – including a courts bill that Lord Keen himself had been working on, Pannick says.
Updated
This is what the Press Association has filed about the government’s remedy document. (See 12.04pm and 12.27pm.)
Parliament may remain suspended even if Boris Johnson loses at the supreme court.
Documents submitted to the court on his behalf on Thursday 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 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, 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, Johnson’s lawyers assert that, depending on the court’s reasoning, it may still be open to the prime minister to consider a further prorogation.
Updated
Keen has now finished.
Keen says, even if prorogation unlawful, supreme court should not decide what happens next
Keen is now addressing the issue of “remedy” (ie, what might happen if the court rules against the government).
He says he contends that a determination from the court that prorogation was unlawful would suffice.
He says it should then be up to the government and parliament to decide how to respond; ie, it would not be for the court to decide what should happen next.
A judge asks how parliament can respond if it is not sitting.
Keen says in the first instance it would be for the government to respond.
Keen says the government thinks the Commons will have a chance to debate all the statutory instruments required for Brexit before 31 October.
And he says some of the five Brexit bills yet to be passed by parliament do not have to be passed by 31 October.
Keen says Aidan O’Neill QC, who represents Joanna Cherry and the other parliamentarians bringing the legal challenge in Scotland, was “discourteous, incendiary and wholly unwarranted” in what he said about Boris Johnson yesterday.
O’Neill, you may remember, branded Johnson “the father of lies”.
Keen says the government documents about the reasons for prorogation should be read with an open mind.
Keen tells supreme court judges they are not 'properly equipped' to rule on prorogation
Keen says prorogation can have political purposes.
If parliament wants to block prorogation, it can move a motion of no confidence. That will be debated, if it is tabled by the leader of the opposition.
Keen says this did not happen in September.
Lord Kerr suggests that might be because the opposition did not see it as being politically advantageous.
Keen says that is the point he was about to make.
He says, in practice, prorogation is very similar to dissolution. And dissolution is non-justiciable.
(Prorogation is what happens before a new session of parliament, normally once a year. Dissolution is what happens before a general election, in theory every five years.)
Keen says prorogation is “forbidden territory” for the court.
He says it is for parliament and the executive to determine whether prorogation is proper. And parliament has the “tools available” (ie, a no confidence motion).
He says that, if the court were to start ruling on prorogation, it would be entering “a minefield”. He goes on to say it is “an ill-defined minefield that the courts are not – with the greatest of respect – properly equipped to deal with”.
How in the context of that political minefield is the court to opine on the issue of purpose or improper purpose, or legitimate political purpose or illegitimate political purpose? How are these concepts to be defined and applied in this context?
In my respectful submission, the applicants and the petitioners are inviting the court into forbidden territory and into what is essentially a minefield, an ill-defined minefield.
Updated
Lord Keen sums up for government in supreme court
Lord Keen, the advocate general for Scotland, is now summing up for the government at the supreme court.
He says the court is being determined to rule on how long prorogation should last.
But this is a matter for constitutional convention, not statute, he says.
He says parliament has not legislated on this matter - even though it could have done over the last 300 years.
In an interview with a group of journalists in Warsaw today, the Polish foreign minister, Jacek Czaputowicz, ruled out his government blocking a potential British request for an article 50 extension.
Some hardline Brexiteers had hoped either Poland or Hungary, who have their own adversarial relationships with Brussels, could be persuaded to block the extension that Boris Johnson is legally required to ask for if he doesn’t negotiate a deal. Earlier this week, Hungary’s foreign minister Péter Szijjártó ruled out a similar move from Hungary.
Tory MP Daniel Kawczynski said previously he had spoken to his friends in the Polish government asking them to block any Brexit extension, but Czaputowicz said this would not happen. “I can exclude the situation that we would veto - we would react positively to [an extension] request from the British government,” he said.
The Brexit secretary, Steve Barclay, was in Warsaw last week and met with ministry officials, meetings he described on Twitter as “constructive”. But Czaputowicz said he had “no information” about any specific British proposals to bring a deal closer.
Updated
The Brexit department has now released the full text of Stephen Barclay’s speech in Spain this morning.
I have already quoted Barclay saying the EU must “compromise” if a no-deal Brexit is to be avoided. (See 9.36am.)
In the full speech Barclay also urged EU leaders to take inspiration from de Gaulle.
Now as a business audience, I am sure you recognise that in growing a business you’re required to take risk.
Those who refuse to take any risk with their business will not succeed.
Great political leaders have always respected the need to take risk.
Indeed It was General De Gaulle, who said “a true statesman is one who is willing to take risks”.
Yet a refusal by the commission to accept any risk would be a failure of statecraft.
And put at risk the future relationship of the UK and the EU because of a lack of flexibility, creativity and indeed pragmatism.
Leadership requires more than remaining within a safety net.
So whilst we seek a deal, we recognise that we may not be able to agree a deal and in that instance we will leave with no deal.
Updated
Here is an extract from what Lord Garnier QC told the supreme court when he was making a submission on behalf of Sir John Major this morning. Garnier said:
One of the central points of the present case – and the reason why these proceedings are necessary at all – is that the power of prorogation subverts the possibility of control by political means.
Its effect is to deprive parliament of a voice throughout the period of the prorogation.
There is no possibility of political control except in the limited sense that a prime minister who exercises the power in a damaging way might face political consequences at some later date, when parliament is permitted to reconvene.
But where the effect of the prorogation is to prevent parliament from discharging its role during a time-critical period, there is no possibility of meaningful political control of that decision until after the damage has been done.
Updated
This is what Jolyon Maugham, the barrister leading the legal challenge against prorogation in Scotland, told Sky News about the government’s remedy document. (See 12.04pm and 12.27pm.)
There’s a great big fuss about these submissions, because quite remarkably the government is not willing to release them to the media. But the normal rule is that once they are mentioned in open court they are available to be published. So I’ve published them.
I can tell you what they say. They contemplate a world where the supreme court rules this prorogation unlawful – the government is plainly contemplating in that world, continuing the prorogation until October 14th. So their very delicate, thorough submissions [are] seeking to persuade the supreme court to leave that door open to the government. That’s striking stuff.
Updated
And here is an extract from Sir John Major’s submission (pdf) arguing that, if the supreme court does not draw a negative conclusion from Boris Johnson’s failure to produce a witness statement saying prorogation had nothing to do with silencing parliament over Brexit (the negative conclusion being, it was, and Johnson has not been truthful), then that would only encourage other ministers to mislead courts in the same way.
The scope for such an inference [a negative inference from the failure to produce a witness statement] in the present case is if anything greater in view of the requirements of the duty of candour. The prime minister is under a duty “to explain the full facts and reasoning underlying the decision challenged”: AHK v secretary of state for the home department [2012] EWHC 1117 (Admin) at §22. His failure or refusal to do so is conspicuous, and there has been no proper explanation for it. The only conceivable explanation is that the true reasons if disclosed would be adverse to his case. If the court proceeded on any basis other than by drawing an adverse inference to that effect, the result would be to incentivise the non-provision of proper explanations of decisions in future cases.
The morning hearing is now over. The court will sit again at 2pm.
Here is an extract from the submission (pdf) from Sir John Major’s team illustrating how a PM could abuse the right to prorogue parliament if the supreme court decides this matter is not justiciable (open to legal challenge).
If that conclusion [ie, the prorogation is not justiciable] 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.
In the context of constitutional settlement in which parliament is acknowledged to be sovereign, that would be a remarkable position for the courts to endorse. It would follow that the courts would not intervene even if, for example:
parliament wished to abolish the power of prorogation, and a bill to that effect passed both houses, but before it could receive royal assent the prime minister prorogued parliament so as to prevent it from becoming law;
a prime minister philosophically opposed to the idea of a standing army prorogued parliament during the period leading up to the statutory expiry of the relevant Armed Forces Act, with the result that the act expired and the armed forces were required to disband; or
a prime minister prorogued parliament before the outcome of a confidence vote which his whips had calculated he would lose, for no reason other than to prevent it from being recorded that he had lost the confidence of the house such that he would need to resign.
On Sky News the lawyer Jolyon Maugham says the government’s remedy document that he disclosed (see 12.04pm) shows the government is considering continuing prorogation until 14 October even if it loses. “That’s striking stuff,” he says.
Updated
Here is the BBC’s Dominic Casciani on Edward Garnier’s submission.
His submissions are a great read. Here are his examples of what a future dodgy PM could to if the Supreme Court does not intervene and rule this prorogation unlawful: pic.twitter.com/M0PFc6ht4r
— Dominic Casciani (@BBCDomC) September 19, 2019
Later he cites an important case from the New Zealand Supreme Court (international cases are commonly referred to at this level) which was about a dodgy estate agent who misled a client - his point being that Prime Minister Johnson has a duty to be at least better than that.
— Dominic Casciani (@BBCDomC) September 19, 2019
And so, based on the available evidence - and the lack of a witness statement - Lord Garnier says Mr Johnson's reasons for the 5-week prorogation cannot be true.
— Dominic Casciani (@BBCDomC) September 19, 2019
This is the judgement of one British Conservative Prime Minister, John Major, about the motivations and alleged machinations of another, Boris Johnson.
— Dominic Casciani (@BBCDomC) September 19, 2019
Lord Garnier for Sir John: We do not believe the documents given to the court provide the true reason for prorogation. In those circumstances it would be justifiable for the court to infer his true intentions.
— Dominic Casciani (@BBCDomC) September 19, 2019
Updated
PM floats possibility parliament could remain suspended until 14 October even if government loses case
On Monday Lord Keen, who was representing the government, told the supreme court that if it found against the government, Boris Johnson would “take all necessary steps to comply with any declaration made by the court”.
But it has now emerged that, even if he loses, Johnson does not want to recall parliament before 14 October – the day it is due to come back.
According to the government’s remedy document published by the lawyer Jolyon Maugham (see 12.04pm), the government is saying that, if the court declares prorogation unlawful, it cannot at this point say what it will do without knowing what the court will advise.
It says that, if the court just says prorogation was unlawful, it could be open to Johnson to request another prorogation, lawfully, for the same period of time.
The document says the court could also require Johnson to request a recall of parliament from the Queen. But the document also says this would have “very serious practical consequences” because the timing of the Queen’s speech would have to be brought forward. “Extensive arrangements” have to be made, it says, implying that this would be undesirable.
Updated
Garnier is now summarising some of the arguments in the written submission.
Supreme court hears John Major's case against Boris Johnson's prorogation decision
Lord Garnier QC is now addressing the court on behalf of Sir John Major. (See 9.19am.)
His written submission is here (pdf).
Jolyon Maugham, the barrister and director of the Good Law Project who led the legal challenge against prorogation in Scotland, has just tweeted the statement from the government about its proposed remedy if it loses the case - ie, what it will do to put the matter right. See 11.44am.
Here is the Government's Submissions on Remedy, just mentioned. 1 of 2 pic.twitter.com/98fMWa48un
— Jo Maugham QC (@JolyonMaugham) September 19, 2019
And 2 of 2. pic.twitter.com/cHw2akfwus
— Jo Maugham QC (@JolyonMaugham) September 19, 2019
I now understand that the Government is refusing to disclose these to the media. My understanding of the law is that once the submissions are mentioned in open court they can be disclosed. Neither my legal team, or another with whom I have checked, are aware that they were...
— Jo Maugham QC (@JolyonMaugham) September 19, 2019
UK says it has now shared 'non-papers' on its plans for alternative to backstop with EU
Turning away from the hearing for a moment, the UK government has announced that it has now shared “technical non-papers” with the EU about alternatives to the backstop. A government spokesman said:
We have been having detailed discussions with the [European] commission’s taskforce 50 in recent weeks. We have now shared in written form a series of confidential technical non-papers which reflect the ideas the UK has been putting forward. We will table formal written solutions when we are ready, not according to an artificial deadline, and when the EU is clear that it will engage constructively on them as a replacement for the backstop.
A non-paper, apparently, is a paper that does not represent a formal government position.
The reference to an “artificial deadline” is prompted by Finland’s prime minister, Antti Rinne, saying yesterday that the UK needed to submit proposals to the EU by the end of this month. Rinne was speaking out because Finland currently holds the rotating presidency of the EU.
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In his written submission (pdf) Fordham says there are five reasons why the PM’s decision to prorogue parliament is justiciable. The high court in England concluded that it wasn’t.
Here are Fordham’s five reasons.
First, because the analysis of justiciability should be integrated with consideration of the legal merits and not addressed in rigid isolation from them ...
Secondly, because the principled scope of judicial review, foundationally underpinned by courts identifying what the rule of law requires, secures that executive action be accountable for its compatibility (a) with contextually calibrated public law standards and in particular (b) with established constitutional principles and values ...
Thirdly, because “political” subject matter is, by reference to established constitutional values, a basis for principled judicial restraint – where the applicability of grounds for judicial review may be cautiously and contextually calibrated – but it is not a basis for executive immunity and judicial abdication ...
Fourthly, because the divisional court was incorrect (DC judgment §67) to rely on the case of Bobb v Manning [2006] UKPC 22, where the prime minister of the Republic of Trinidad and Tobago was “entitled to exercise his informed and political judgment” in deciding not to call for a dissolution of parliament, as supporting its conclusion on the non-justiciability of such decisions ...
Fifthly, because it is unsound to rest an adverse conclusion on justiciability upon whether the exercise of the power affects an individual ...
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Now Michael Fordham for Welsh government
— David Allen Green (@davidallengreen) September 19, 2019
Fordham is the author of the most detailed practitioner guide on judicial review https://t.co/P89njEPbHi
He may be only barrister to have read and considered every single judicial review case ever
Ubergeek
Hence why this is case-heavy
Fordham says a form of “remedy” has been proposed to the court.
This is a reference to a statement from the government explaining what the government will do if the court finds that prorogation was unlawful. In the hearing yesterday Lady Hale said she would like to see such a statement before the end of today’s hearing.
But Fordham does not say what the government’s proposition is, other than that it is a “species of declaration”.
Mike Fordham QC is now speaking on behalf of the Welsh government.
Here is his written submission (pdf).
Lavery says his client’s son was murdered because of conditions in Northern Ireland at the time. That is why he feels strongly about this, and why he wants the supreme court to intervene.
On that point Lavery winds up.
From David Allen Green, the FT’s legal commentator
If I were Lavery, I would sit down now
— David Allen Green (@davidallengreen) September 19, 2019
Regardless of the merits of his points, there's no coming back from that
Lord Wilson intervenes. He says he is worried that people be watching Lavery’s submission will conclude that the points he is making – about Brexit’s impact on Northern Ireland and the Good Friday agreement – are at the heart of the case. But they are not. He tells Lavery:
Don’t abuse our patience and don’t abuse Lady Hale’s patience.
The intervention does not seem to have much impact on Lavery, who is just ploughing on.
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Lord Sales tells Lavery his arguments are “completely irrelevant” to the issues being determined by the court.
Once again, the court getting frustrated with Ronan Lavery. Lord Sales: “I fail to see how any of this has anything to do with the prorogation of Parliament.
— Lewis Goodall (@lewis_goodall) September 19, 2019
“I’m afraid this strikes me as completely irrelevant to the legal questions we have to decide.”
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In his written submission (pdf) Lavery argues that prorogation has already had “a much greater impact on the rights of people in Northern Ireland” than on the rights of people in the rest of the UK. He says victims of the Troubles have lost the chance to have their concerns debated in parliament.
He justifies this point by saying that the Northern Ireland (Executive Formation) Act requires regular debates to be held on certain issues. On Monday 9 September there were motions for five separate debates on the Commons order paper. But four of those debates, covering gambling, human trafficking, payments to victims and historical institutional abuse, were cancelled because prorogation meant other matters needed to be debated instead.
Lady Hale, president of the court, says the issues raised by Lavery are not relevant to this case. The court is not looking at the rights and wrongs of Brexit. It is just looking at whether the decision to prorogue was justified.
Lavery says if the decision to prorogue was taken for the wrong reasons, the court should intervene.
Ronan Lavery QC is now speaking at the supreme court on behalf of Raymond McCord, who brought a legal challenge against the government’s Brexit policy in Northern Ireland.
McCord’s son was killed by loyalist terrorists in 1997. He took the government to court on the grounds that its Brexit strategy could undermine the Good Friday agreement. But his challenge was rejected by the high court in Belfast.
Lavery says it is important to understand that the EU is a peace project in terms of the effect it has had on relations between Ireland and the UK.
Wolffe says he wants to make two points from a Scottish perspective.
First, he says this case does not turn on any special feature of Scots law.
And, second, he refers to statutory instruments (SIs). The UK government will only pass SIs in relation to Scotland with the approval of the Scottish parliament.
He says, as of yesterday, there were only six outstanding SIs relating to Scotland that needed to be made before 31 October. Only two had been made by an emergency procedure that allows them to be made without scrutiny by parliament.
This issue is relevant because one argument against prorogation is that it has limited the time available for parliamentary scrutiny of SIs. This submission (pdf) to the court, by the Public Law Project, goes into this in more detail.
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Wolffe says, if the UK government’s claim that prorogation is non-justiciable is correct, then it would be open to a prime minister to prorogue parliament as soon as he took office.
Wolffe says what’s at stake in this case is parliamentary accountability.
This is what he says in his written submission (pdf).
It is a fundamental principle of the UK’s constitutional democracy that the executive is accountable to parliament – that the government’s policies and actions are subject to scrutiny in parliament by the elected representatives of the people. That principle – the principle of responsible government – is “no less fundamental to our constitution” than the legal doctrine of the sovereignty of parliament. It applies to the relations between the UK government and the UK parliament, and is reflected in the constitutional arrangements set out in the devolution statutes. The purposes served by that principle include: (i) subjecting the policies of the executive to consideration by the representatives of the people; (ii) promoting transparency of executive action by requiring the government to report, explain and defend its actions; and (iii) protecting citizens from the arbitrary exercise of executive power. In a society governed by the rule of law, that constitutional principle must be, and is, recognised by the law.
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Supreme court hears submission from Scottish government
James Wolffe QC, the lord advocate, the Scottish government’s chief law officer, has just started making his statement on behalf of the Scottish government.
I’ve taken down an earlier post saying it was James Mure. (The supreme court website said Wolffe would be represented by James Mure.)
Here is his written submission (pdf).
The supreme court hearing is about to resume.
This is from the BBC’s Andrew Kerr.
Final day of Supreme Court hearings into the legality of Parliamentary suspension. A top source from the UK Government said: “we’re stuffed”. The other side remain optimistic - thinking it might go their way with 7/4 or 8/3 judge majority in their favour.
— BBC Andrew Kerr (@BBCandrewkerr) September 19, 2019
Omar Salem, the Labour activist who confronted Boris Johnson about conditions in a hospital that the PM was visiting yesterday, has defended the BBC’s political editor, Laura Kuenssberg, for tweeting about his Labour background.
@bbclaurak is doing her job without fear or favour, which is a vital part of democracy.
— Omar Salem (@OmarSalem) September 19, 2019
I don’t think “Labour activist cares about NHS” is a huge scoop though... https://t.co/GiSeSmzZ7m
Kuenssberg’s tweet yesterday provoked a storm of outrage on social media from people who claimed that it was evidence of bias. Personally I thought the reaction was unpleasant and unfair. To point out that someone is a party activist is not to say that their complaint has no merit, and the criticisms I read of Kuenssberg all failed the ‘what if it was the other way round?’ test. If Jeremy Corbyn got berated by a member of the public in a newsworthy encounter, and he turned out to be a Tory activist, what would you think if the BBC failed to mention it?
Downing Street does not always respond well when Johnson has difficult encounters with members of the public, but on this occasion it said the right things. Here is HuffPost’s Paul Waugh on what Number 10 was briefing.
No.10 source on hospital father being Labour activist: “That doesn’t change a thing. He’s the parent of a child going through NHS treatment.
— Paul Waugh (@paulwaugh) September 18, 2019
"If he’d been a Tory blue voting for 10 yrs, if you’d a poor experience of your child in the NHS I’m pretty sure you’d feel the same way” https://t.co/W1V9GS2Xuv
And this is what Johnson himself put on Twitter.
I’ve been PM for 57 days, part of my job is to talk to people on the ground and listen to what they tell me about the big problems. It doesn’t matter if they agree with me.
— Boris Johnson (@BorisJohnson) September 18, 2019
I’m glad this gentleman told me his problems. This isn’t an embarrassment this is part of my job. https://t.co/j60ODrROXi
By the way, do read this article on this story from my colleague Matthew Weaver. He has written up what a doctor at the Whipps Cross hospital who wanted to remain anonymous told him about conditions there and about the Johnson visit. Here is an excerpt.
I’ve been thinking about it all day and felt I had to say something because NHS hospitals today can be unsafe places. Whipps Cross [in Leytonstone, north-east London] is particularly understaffed and under-resourced so people don’t get the care that they need as promptly as they need.
And this visit was not reflective of the realities of working at this hospital. Johnson was taken to the nicest ward in the hospital; there were flowers on display and classical music was playing in the background. I wish the prime minister could have seen some of the other wards, which are nothing like what he saw today. He should come on a night shift and see how everything doesn’t function at two in the morning.
I’m disappointed with the care I can give patients. I work in acute adult medicine and I constantly feel that I am doing a disservice to patients and their families.
And here is the full article.
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Blair says Lib Dems now looking like 'much more serious group of people'
The new Lib Dem leader, Jo Swinson, firmed up her party’s position on Brexit at her party conference this week, saying that if the Lib Dems won a majority in a general election (quite a colossal if), they would cancel Brexit altogether. At least some voters are impressed. This morning a YouGov poll in the Times (paywall) puts the Lib Dems on 23%, up four points from the previous week and ahead of Labour, which is down two points on 21%.
And in an interview on the Today programme this morning, to mark John Humphrys final day as presenter, the former Labour prime minister Tony Blair said the Lib Dems were looking increasingly serious as a political option. Blair said that the two-party system might collapse “if it becomes clear that the two main parties have moved so far away from the centre that the gap in the centre has to be filled in order to be representative of the state of opinion”. He went on:
One of the things that troubles me most about politics today is I can’t tell you the number of young people, in the 20s and 30s, really intelligent young people, politically committed, - a) they’ve got no home and b) they look at the state of the two main parties and say: ‘I couldn’t join either of them.’
It doesn’t matter what I say, what anyone else says. You only have to look at the Liberal Democrats now and their party conference. For the first time in long time, they are looking a much more serious group of people. Why is that? Because people have come from the Labour party, come from the Conservative party, and they have got a coherent argument. If I was the two main parties at the moment, I would worry about that.
Asked if the Lib Dem argument was one that he agreed with, Blair replied:
It is an argument I agree with. I’m very tribally and deeply attached to the Labour party. But if over a long period of time someone from outside your political party is making an argument you think is more sensible, it starts to pull you in the opposite direction.
Humphrys then asked if Blair was going over to the Lib Dems. But Blair would not give him a scoop on his final day in the office. He replied:
No, you shouldn’t read that into it. It just suggests a deep level of frustration about where the Labour party is and where the Conservative party has gone to.
If Blair is not joining the Lib Dems, what about Tom Watson, Labour’s deputy leader? That sounds like a daft proposition, but the New Statesman’s George Eaton has just published a very long and fascinating profile of Watson that includes this nugget.
Watson has long been viewed as one of Labour’s most tribal politicians. But [former Labour MP Michael] Dugher, one of his closest friends, suggests that he could yet join his past enemies: the Liberal Democrats. “If you’d said to me two years ago, would Tom ever countenance doing anything with the Lib Dems, I would have said ‘no chance’. Now I’d say ‘who knows?’”
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Brexit secretary Stephen Barclay says EU has to 'compromise' if no deal to be avoided
Stephen Barclay, the Brexit secretary, has said Brussels needs to show more flexibility in its approach to Brexit negotiations. Speaking to business leaders while on a visit to Spain, he said:
A rigid approach now at this point is no way to progress a deal and the responsibility sits with both sides to find a solution.
We are committed to carving out a landing zone and we stand ready to share relevant texts. But it must be in the spirit of negotiation with flexibility and with a negotiating partner that itself is willing to compromise.
John Major tells supreme court it would be 'naive' to believe Boris Johnson on prorogation
As a Daily Telegraph columnist in the 1990s Boris Johnson was one of the many journalists on the Tory right who used to treat the then prime minister, John Major, with scorn. More than 20 years on Major finally has the chance to get his own back because we are going to witness the extraordinary spectacle of a former Conservative prime minister going to court to argue that the current Conservative prime minister has not been telling the truth. The word extraordinary is cropping up rather frequently in Brexit coverage at the moment, but it is very hard to think of a precedent for this.
Major will not actually be addressing the court himself. The supreme court is an appeal court, and it does not take evidence from witnesses. But Edward Garnier QC, now Lord Garnier, a former Tory solicitor general, will be making a submission on his behalf. It is not clear yet whether or not Major himself will be in court to listen to the proceedings.
The supreme court has overnight published Major’s 10-page submission (pdf) on its website. Drafted by Garnier and two legal colleagues, it argues, on behalf of Major, that the PM’s decision to prorogue parliament should be justiciable - ie, subject to legal challenge; the government says it shouldn’t, because this is beyond the remit of the courts – and that Johnson’s decision to prorogue was at least “substantially motivated” by the desire to limit the chances for MPs to interfere with Brexit.
The government has refused to accept that this was Johnson’s motive. But Major argues in his submission that the supreme court would be “naive” to believe him. Referring to the fact that the government only produced a limited number of documents about how the prorogation decision was taken, and not a proper witness statement saying the move was not motivated by the desire to silence parliament, the submission says:
The current factual picture, on the material which is available and with regard to the absence of evidence which ought to be available but has not been provided, is deeply concerning. The court is under no obligation to approach this case on the artificially naïve 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 ... It would also be wrong to proceed on that basis, because it would mean that the real issue that has arisen on the facts would not be resolved.
Here is the agenda for the day at the supreme court, where the hearing starts at 10.30am.
10.30am: James Mure QC speaks on behalf of the Scottish government.
11am: Ronan Lavery QC speaks on behalf of Raymond McCord, who launched a legal challenge against a no-deal Brexit in Northern Ireland.
11.40am: Mike Fordham QC speaks on behalf of the Welsh government.
12.10pm: Lord Garnier QC speaks on behalf of Sir John Major, the Conservative former prime minister.
2pm: Lord Keen QC sums up for the government.
2.30pm: Lord Pannick sums up for Gina Miller
And here are other items on the agenda for the day.
11am: Boris Johnson holds a meeting with military service chiefs in Downing Street.
Sajid Javid, the chancellor, is in Dublin today for a meeting with his Irish counterpart, Paschal Donohoe. And the Commons Brexit select committee is also in Dublin for private meetings with Irish ministers.
As usual, I will be covering breaking political news as it happens, as well as bringing you the best reaction, comment and analysis from the web, although I will mostly be focusing on the supreme court hearing. I plan to publish a summary when I wrap up.
You can read all the latest Guardian politics articles here. Here is the Politico Europe roundup of this morning’s political news. And here is the PoliticsHome list of today’s top 10 must-reads.
If you want to follow me or contact me on Twitter, I’m on @AndrewSparrow.
I try to monitor the comments below the line (BTL) but it is impossible to read them all. If you have a direct question, do include “Andrew” in it somewhere and I’m more likely to find it. I do try to answer questions, and if they are of general interest, I will post the question and reply above the line (ATL), although I can’t promise to do this for everyone.
If you want to attract my attention quickly, it is probably better to use Twitter.
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