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The Guardian - UK
The Guardian - UK
Politics
Andrew Sparrow

Brexit: 'Mother of parliaments shut down by father of lies', QC tells court in jibe at Boris Johnson – as it happened

The supreme court, which is currently hearing an appeal that will determine whether Boris Johnson’s suspension of parliament was lawful.
The supreme court, which is currently hearing an appeal that will determine whether Boris Johnson’s suspension of parliament was lawful. Photograph: Andy Rain/EPA

Afternoon summary

  • The supreme court has been told that “the mother of parliaments [is] being shut down by the father of lies”. (See 4.12pm.) Aidan O’Neill QC, counsel for the SNP MP Joanna Cherry and the other parliamentarians challenging the government’s decision to suspend parliament for five weeks, delivered the jibe against Boris Johnson as he wound up his speech to the court this afternoon. As well as accusing Johnson of lying, O’Neill said Johnson and his government could not be trusted not to engage in “low, dishonest, dirty tricks”. (See 3.25pm.) O’Neill’s speech was easily the most passionate and outspoken of the four submissions heard so far by the court in this case, although at times there were hints that some of the judges were finding him unduly histrionic. With just one day left of the hearing, it is hard to assess which side is likely to win. O’Neill and his team do not seem to have persuaded the court that the five-week prorogation has fatally damaged the ability of parliament to scrutinise the Brexit process; the fact that MPs passed the Benn bill, supposedly stopping a no-deal Brexit on 31 October, during the September sitting seems to have worked as an effective argument against the claim that parliament has been silenced. But interventions from judges also suggest that they are open to the argument that the PM’s power to prorogue parliament should be subject to some constraints. (See 11.02am and 11.12am.) This has fuelled speculation that the court may deliver an equivocal ruling that might effectively amount to a “don’t do it again” warning to the prime minister. (See 12.24pm.) But that is pure speculation. No one knows.

That’s all from me.

Thanks for the comments.

Updated

Sinn Fein’s deputy leader has voiced her opposition to a Stormont veto on the Irish backstop, the Press Association reports. Michelle O’Neill said her party does not support such a veto because “a backstop that can be vetoed is not a backstop”. It comes after reports that the DUP might endorse the contingency plan aimed at preventing a hard border if the devolved institutions would have a veto on future EU rules applying in the region.

Boris Johnson and Donald Trump have discussed the need for a “united diplomatic response” to the attacks on Saudi oil facilities, Downing Street said. The two leaders spoke today. A Number 10 spokesman said:

They condemned the attacks and discussed the need for a united diplomatic response from international partners. They also spoke about Iran and agreed that they must not be allowed to obtain a nuclear weapon.

Updated

Here is Aidan O’Neill’s peroration.

In his peroration, Aidan O’Neill also included a reference to the Dred Scott case. I’ve beefed up the post at 4.12pm to include that. You may need to refresh the page to get the update to appear.

Updated

'Mother of parliaments being shut down by father of lies', supreme court told

O’Neill is winding up now. He finishes with a jibe at Boris Johnson as “the father of lies”.

I say to this court, don’t let this case be your Dred Scott moment. Instead stand up for the truth, stand up for reason, stand up for unity in diversity, stand up for parliament, stand up for democracy by dismissing this government’s appeal and uphold a constitution governed by laws and not the passing whims of men.

We’ve got here the mother of parliaments being shut down by the father of lies. Rather than allowing lies to triumph, listen to the angels of your better nature and rule that this prorogation is unlawful and an abuse of power which has been entrusted to the government.

This government is showing itself unworthy of our trust as it uses the powers of its office in a manner that is corrosive of the constitution and destructive of the system of parliamentary representative democracy on which our union polity is founded.

Enough is enough. Dismiss this appeal, and let them know that. That’s what truth speaking to power sounds like.

The Dred Scott reference is provocative too. The Dred Scott case was one heard by the US supreme court in 1857 in which the court ruled that black people could not be American citizens, even if they were free.

The court adjourns until tomorrow.

Updated

O’Neill says you cannot say that, just because MPs did not pass legislation blocking prorogation in September, that means they consented to prorogation.

Updated

O’Neill says the traditional Scottish approach is that it does not matter how high you are, even if you are the king himself, you can be called before the courts. That is why James VI was so keen to leave Scotland, he says.

Updated

O’Neill says people knew that the government was planning a five-week prorogation “because we read the Observer”. He was referring to Toby Helm’s splash about what the government intended to do.

O’Neill addresses the argument that prorogation is non-justiciable because of the Bill of Rights, which prevents the courts interfering with parliamentary process. He says that argument is a complete misunderstanding of the Bill of Rights, which was about protecting the rights of parliamentarians.

As MLex’s Matthew Holehouse points out, in his written submission to the supreme court (pdf), O’Neill says the government was responsible for the leak that revealed Boris Johnson had called David Cameron a “girly swot” in a line in a document originally retracted.

O’Neill also claims that the leak highlights Johnson’s willingness to abuse power.

O’Neill said it would not be acceptable to have a situation where prorogation can be used for improper purposes.

The length of the prorogation is not the issue, he says. What matters is its purpose.

O’Neill says the supreme court must intervene to rebalance the constitution.

Earlier O’Neill said the documents submitted by the government to the court - the memo to the prime minister on prorogation, dated 15 August, and the PM’s handwritten response of the next day – showed that “the true dominant purpose of prorogation was, as the inner house [the senior part of Scotland’s court of session], correctly observed, to stymie parliamentary scrutiny of the executive regarding Brexit”.

He added:

Lying (albeit wholly unconvincingly) about the true reasons for exercising the prorogation power in the manner, at the time and for the period it has been exercised in this case, calls into question the lawfulness of the executive’s action.

Updated

Boris Johnson can't be trusted not to engage in 'low, dishonest, dirty tricks', court told

O’Neill says the court should not treat the documents submitted to the court by the government about the reasons for prorogation as “gospel” or the “complete truth”.

He also suggests that the document may have been written to provide “cover”, in the knowledge that a court might demand to see it.

Lord Reed says he is “looking sceptical about that suggestion”.

O’Neill replies:

There is no reason to look sceptical. You can look upset. The fact is: read the documentation, and it says: ‘We know this will potentially cause us a challenge.’ We have no affidavit that says this is true and complete. An affidavit would say this is the truth, the whole truth and nothing but the truth. One might not think that a government would engage solely in high politics as opposed to low, dishonest, dirty tricks. But I’m not sure we can assume that of this government, given the attitude that has been taken publicly by its advisers and by the prime minister himself to the notion of rule of law. So look perturbed, look upset, but don’t look sceptical. Look at the documentation.

At this point O’Neill bangs his hand on the table.

Updated

O’Neill is now talking about the memo sent to Boris Johnson by Nikki da Costa proposing the long prorogation. (Some of the text is here.)

And he refers to Boris Johnson’s reply. Johnson backed the plan, writing:

1. The whole September session is a rigmarole introduced by girly swot Cameron to show the public that MPs were earning their crust

2. So I don’t see anything especially shocking about this prorogation

3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few.

O’Neill says he cannot understand why the words “by girly swot Cameron” were redacted in the documents originally released to the court. He suggests there was no valid reason for this.

O’Neill is now talking about the government’s failure to provide a witness statement.

He cites the judgment in Das v home secretary. This is included in the Cherry team’s legal submission (pdf). The Das judgment said:

Where a secretary of state fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party … The basis for drawing adverse inferences of fact against the secretary of state in judicial review proceedings will be particularly strong, because in such proceedings the secretary of state is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, [in the words of Lord Walker of Gestingthorpe in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] Env LR 761 [para 86] ‘to cooperate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings’.

Updated

O’Neill says there was a “cunning” change in what the government decided to do.

Instead of proroguing parliament over 31 October, it decided to prorogue parliament earlier.

He says the decision to prorogue parliament between 9 September and 14 October fits with the government seeking the longest possible prorogation consistent with the Northern Ireland (Executive Formation) Act, which included requirements for the government to report to parliament on developments in Northern Ireland.

Updated

Here is O’Neill on why the PM’s lengthy prorogation of parliament was so serious.

It appears that the prime minister’s actions in proroguing parliament has had the intent and effect of preventing parliament, impeding parliament, from holding the government politically to account at a time when the government is taking decisions which will have constitutional and irreversible impacts on our country.

That fundamentally alters the balance of our constitution because it is using the power to allow the executive to govern ... at this crucial time and all without the proper constitutional accountability.

O’Neill says what matters is the principle of the PM being allowed to prorogue parliament in this way.

The amount of time lost is not relevant.

The government has argued that only seven days were lost to MPs. But O’Neill says the Benn bill, designed to stop a no-deal Brexit on 31 October, was passed in just three days. That shows how much might be achieved in seven days.

Updated

Here is the lawyer and legal blogger Adam Wagner on what O’Neill is up to.

O’Neill refers to the Sandiford case. This was a case where the supreme court rejected a challenge to the government’s refusal to use prerogative powers to fund the legal costs to defend a British woman facing the death penalty in Indonesia on drugs charges. He says this was not the court’s finest hour. Lady Hale says O’Neill knows how to make friends.

Sandiford is relevant to this case because it is about prerogative powers. As the legal submission from Joanna Cherry’s team (pdf) explains, the court of appeal ruled in Sandiford that in some circumstances prerogative decisions are justiciable. The submission says:

The court of appeal held that, although the Foreign Office’s discretion as to exercise of its prerogative powers in such a case was ‘a very wide one’ and although ‘the court cannot enter the forbidden areas, including decisions affecting foreign policy’, there was ‘no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation.

Updated

O’Neill is now turning to the legal issues at stake in the case.

He says the term prerogative powers applies to a collection of random powers.

He says simply by calling something prerogative, that does not give you any analytical heft. The powers exercised under the prerogative do not have much to do with each other.

O’Neill is now talking about Parliament Square, and what the various statues erected there say about history.

And he is talking about the buildings too.

From the BBC’s Dominic Casciani

O’Neill says he will be talking about Scottish law.

But he says he wanted to make the point about four nations because this is not a nation state. It is a state of nations.

He turns to Macbeth. It is often described as the Scottish play. But it is the British play, written to explain what was happening when a new court, the court of King James (James VI of Scotland, but James I of England), was taking over.

Updated

Here is the carpet on the floor of the supreme court that O’Neill was referring to. (See 2.15pm.)

Carpet on floor of the supreme court.
Carpet on floor of the supreme court. Photograph: Graham Turner/The Guardian

Before getting into the meat of the legal argument, O’Neill is giving a wonderful speech about history, and emblems.

He points out that the decoration on the carpet of the supreme court includes the emblems of all four nations of the UK. It makes a point about how their traditions are combined, he says.

Aidan O’Neill QC starts addressing supreme court arguing prorogation unlawful

Aidan O’Neill QC has started addressing the supreme court. He will be speaking for the next two hours. He is representing Joanna Cherry and the other parliamentarians who took the case to the Scottish court of session, where they successfully argued that prorogation was unlawful.

He starts by saying that he is the first lawyer to address the court in this case who does not have a title. We have already heard from Lord Pannick, Lord Keen and Sir James Eadie.

O’Neill is a Scot (and a “double silk” – a QC at the English and Scottish bar). He says that one of the advantages of the court of session in Edinburgh is that distance from London gives a sense of perspective. He says political machinations look very different 400 miles away from London.

Aidan O’Neill
Aidan O’Neill Photograph: Supreme court

Updated

Lunchtime summary

  • The supreme court has been told that it is “untenable” to argue that Boris Johnson suspended parliament for five weeks to “stymie” MPs who might want to obstruct Brexit. This was the ruling made by the Scottish court of session. But, addressing the supreme court for the government, Sir James Eadie QC said:

Both in the briefing to [Johnson], and in the statements to cabinet, it was absolutely clear that he well understood that parliament was going to have the opportunities that it in fact had. And indeed if he had tried to say that, knowing that parliament was going to come back on 3 September and do what it in fact did, it was entirely predictable, it was either going to be a motion of no confidence or it was going to be legislation. And so the idea that parliament would be deprived of the opportunity to take whatever steps it wished in that run-up, including in relation to the sittings of parliament, is simply untenable.

Any type of Brexit – even the softest possible – will cause potentially irreparable damage to Wales and its economy. This is because Wales is heavily dependent on manufacturing and agri-food, and 60% of our exports go straight to the EU.

We will support all the efforts our colleagues in Westminster are taking to prevent the no-deal Brexit, which the prime minister and the Tory government is hell-bent on pursuing.

Alan Johnson, the former Labour home secretary who led the Labour In campaign in 2016, told the World at One the party would get “slaughtered” on the doorstep trying to defend Corbyn’s position.

In an interview with Sky News Corbyn repeatedly refused to clarify whether he would back remain or leave in a Brexit referendum he would call as prime minister. He said:

My job as prime minister would be to deliver that option that’s chosen by the British people. I will credibly present the options and say: ‘This is the option, you can remain, possibly with some reforms to the European Union, or you can leave, but you will be leaving on these terms which would protect jobs and living standards and trade.’

Pressed if he would remain neutral in the campaign, Corbyn said:

As prime minister I’m offering the people a choice – the only party that’s doing so.

There are not enough people on this ward, there are not enough doctors, there’s not enough nurses, it’s not well organised enough. The NHS has been destroyed … and now you come here for a press opportunity.”

Johnson said: “There’s no press here” but the parent gestured to cameras filming the confrontation, and said: “What do you mean there’s no press here, who are these people?”

Updated

Here is my colleague Owen Bowcott’s story about this morning’s hearing.

This is from the barrister and QC Matthew Ryder.

Nicola Sturgeon has accused anti-independence campaigners of cowardice as she marked the fifth anniversary of the 2014 independence referendum with a trip to Berlin to promote Scotland’s case for EU membership.

The pro-UK campaign Scotland in Union boasted last night that its new Survation poll had found 59% of voters (excluding don’t knows) would choose no in a second referendum, as both sides marked five years since the first vote on 18 September 2014. In that referendum, the no side won with 55.3% against 44.7% for yes.

The Survation figure, based on a leading question which asked “should Scotland remain in the United Kingdom or leave the United Kingdom?”, is an outlier. The latest polls put the yes/no divide at nearer 50:50. The first minister tweeted that if unionists really believed they would win, why not support her calls for a referendum next year.

Sturgeon is preparing for a concerted push for a second vote, hoping the Brexit crisis will push the yes vote well above 50%. Her government has put draft legislation to Holyrood setting the ground rules for future referendums and earlier this month she indicated she would ask the UK government in December for the legal powers to stage an independence poll.

This and the Brexit crisis will be the dominant themes at Scottish National party conference in October. Sturgeon is likely to double down there on her demands for a second independence vote next year; if Labour beats the Conservatives in a snap election, Corbyn may just grant her one, in exchange for SNP backing at Westminster.

Updated

Sir James Eadie QC has finished.

Aidan O’Neill QC, who represents Joanna Cherry and others who took the government to court in Scotland, goes next.

He says he wants to make two points now. He will start making his main presentation after lunch.

On “relief” (see 12.57pm), he says he would like to be consulted.

And he says in Scotland ministers do give witness statements in cases like this. He refers to a case about prisoners slopping out, and another on public procurement.

He says it was Boris Johnson who took the decision. He says a witness statement could mean the PM having to tell the truth, and the whole truth, under oath.

And that’s it for now. The court has adjourned until 2pm.

Updated

Eadie says he wants to get something in writing as to what might be done in terms of “relief” (ie, what the government would have to do if the court found against it).

He says the options available to the government would depend on the reasoning of the court.

He says the government will make a suggestion in writing, if that is not inconvenient.

Lady Hale, the president of the court, says it will be inconvenient if the court does not have it by tomorrow afternoon.

Eadie says he wants to provide it overnight.

Lord Reed says the issue of “relief” is a very difficult question. Any help Eadie can give the court as to what the options are would be appreciated, he says.

Updated

Lord Kerr asks if it is accepted that there was a political advantage to the government from having a five-week prorogation.

Eadie says he cannot answer that.

But he says there is an advantage to the government from having a “clear space” ahead of the Queen’s speech.]

Q: But what about the argument that this reduced scrutiny by MPs.

Eadie refers the judge to what is said in the government documents about the reasons for prorogation.

The judge says those documents may not tell the whole story.

Eadie says his case is that, even if there was a political advantage, that was not improper.

Lord Kerr
Lord Kerr Photograph: Supreme court

Updated

Claim that PM prorogued parliament to 'stymie' MPs 'untenable', court told

Eadie says the government has, exceptionally, provided a cabinet minute explaining the prorogation decision.

Lord Wilson points out that they do not have a witness statement (saying that the prorogation was not intended to limit the opportunities for MPs to frustrate Brexit).

Eadie accepts the court does not have a witness statement of the kind it would accept. But he says the other documentation sets out the government’s position.

Another judge asks about the suggestion that the PM should have signed an affidavit, and submitted himself to cross-examination.

Eadie says he has never encountered a case where that happened. He has never been involved in a judicial review where the minister involved gave a witness statement.

Q: What about the cabinet secretary giving a witness statement and submitting to cross-examination?

Eadie says, if that request had been made, it would have been resisted with fury.

He says the suggestion that the PM was operating in a way designed to “stymie” parliament was untenable. He says the documents submitted by the government showed that the PM anticipated MPs being able to pass Brexit legislation in September, as they went on to do.

  • Eadie says claim that PM prorogued parliament to “stymie” parliament is “untenable”.

“Stymie” is the word used in the judgment from the Scottish court of session.

Updated

Eadie says he now wants to turn to some issues that he summarises under the heading “lawful in any event”.

He says parliament has been considering Brexit for many months.

And it passed the Northern Ireland (Executive Formation) Act, which contained provisions to ensure that parliament did sit periodically during the autumn.

Updated

Eadie addresses the question of whether the executive might want a very long prorogation. (See 11.12am.)

He says this prorogation only lasts for five weeks.

But, in any event, if a government tried to prorogue parliament for a long period of time, it would run into other problems, he says. For example, it needs parliament to approve spending decisions.

He refers to paragraph 92 of the government submission (pdf) which says:

There are, in any event, for the reasons given by Dicey (pp.297-299) real practical impediments to the government proroguing parliament in the extreme circumstances relied on by the appellant. These include the fact that authorisation to appropriate money from the consolidated fund, to charge income and corporation tax, and to maintain discipline over the armed forces must be authorised by parliament annually. No government could in practice continue in office without parliament sitting regularly.

And he also refers to paragraph 76, which also includes these two quotes from The Law of the Constitution, the seminal work by AV Dicey. Dicey wrote:

Suppose that parliament were for more than a year not summoned for the despatch of business. This would be a course of proceeding of the most unconstitutional character. Yet there is no court in the land before which one could go with the complaint that parliament had not been assembled ...

No rule is better established than that parliament must assemble at least once a year. This maxim, as before pointed out, is certainly not derived from the common law, and is not based upon any statutory enactment. Now suppose that parliament were prorogued once and again for more than a year, so that for two years no parliament sat at Westminster. Here we have a distinct breach of a constitutional practice or understanding, but we have no violation of law.

Updated

These are from the BBC’s Laura Kuenssberg.

This assumption from Number 10 as to how the case may unfold seems highly plausible. In fact, I was speculating along these lines BTL just a couple of hours ago. This was in response to a question from Shoobedydedoop about whether the supreme court’s decision might end up being equivocal.

User avatar for AndrewSparrowReplies Guardian staff

I think that is possible.

Perhaps a declaration that there are limits to the PM's prorogation power, but that in this case it was okay?

Gina Miller et al would count that as a partial victory - although it would not change much.

But that's just a guess

Eadie says even Lord Pannick, who represents Gina Miller, accepts that it can be legitimate for the executive to obtain political advantage from prorogation.

If this is the case, how can a court decide what level of political advantage is acceptable, and what level is not.

He refers again to the judgment from the English high court (pdf), which he wants the supreme court to uphold. He refers to paragraph 55 which says:

Prorogation has been used by the government to gain a legislative and so political advantage. One of the most notable examples of that was its use to facilitate the speedy passage of what became the Parliament Act 1949. Under section 2 of the Parliament Act 1911 a non-money bill could only be enacted without the consent of the House of Lords if it was passed in three successive sessions by the House of Commons. In order to procure the speedy enactment of the 1949 Act the government arranged for a session of minimal length in 1948. Parliament was prorogued on 13 September 1948 to the following day. Following the passage of the parliament bill by the House of Commons, it was then prorogued again on 25 October 1948. Accordingly, even if the prorogation under consideration in the present case was, as the claimant and the interveners contend, 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 with judicial review.

(This reference rather supports David Allen Green’s analysis. See 11.59am.)

This is from the FT’s legal commentator, David Allen Green.

Eadie asks how a court could be expected to judge what length of prorogation might be reasonable or unreasonable. He cites approvingly paragraph 54 of the English high court judgment (pdf) on this. It says:

All of these arguments face the insuperable difficulty that it is impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure. There is no legal measure of the length of time between parliamentary sessions. There is not even a constitutional convention which governs the matter, albeit that constitutional conventions are not justiciable: see Miller No 1 at [136] and following. The skeleton argument for the prime minister notes that there have been a number of occasions in modern times during which parliament was prorogued for a lengthy period. It was, for example, prorogued on 1 August 1930 until 28 October 1930; on 18 September 1914 until 27 October 1914 and then further prorogued until 11 November 1914; and on 17 August 1901 until 5 November 1901.

Updated

From the Daily Telegraph’s political editor, Gordon Rayner

A judge asks Eadie if he accepts that five Brexit bills have fallen as a result of the decision to prorogue parliament.

Eadie says he does not have a complete answer on this. But his main point is that, if parliament needs to pass these bills in a hurry, it can act accordingly.

Updated

Eadie is now on to his final reason as to why a decision to prorogue parliament should be seen as a non-justiciable matter.

He says this is not a matter of individual rights, as in some other legal cases relating to prerogative powers.

He says any decision to prorogue will reduce the time available for debate in parliament.

He says Lord Pannick is not criticising the right of the government to prorogue parliament in all circumstances. He is just objecting to how the decision was taken in this case.

He says this means Pannick cannot object to the consequences of prorogation, on improper motive grounds, if he is not objecting to the fact of prorogation.

Updated

A judge asks if it is the government’s position that the Queen has the discretion to refuse a request from the prime minister to prorogue parliament.

Eadie refers to comments from Jacob Rees-Mogg, the leader of the Commons. This was cited yesterday. Rees-Mogg told the BBC that the Queen had no option but to do what the PM requested.

Eadie says he is not making submissions on this point.

When pressed, he says there is some uncertainty as to quite what the Queen’s powers are in this case.

The government says more on this in its submission (pdf), at paragraph 35. It says:

Contrary to the suggestion at §8 of the appellant’s written case, it is not (and never has been) asserted that Her Majesty enjoys no personal prerogative in this context or that she is obliged to accept the advice of the prime minister. However, this is not an issue which arises for determination on the present appeal. Nor is it a matter for the court. Whether Her Majesty enjoys a personal prerogative in any particular case is a question of constitutional convention, not law. For the reasons given below, the courts have no jurisdiction to determine the scope of, or to enforce constitutional conventions.

Eadie is now making other arguments as to why a decision to prorogue parliament should be seen as a non-justiciable matter.

He says prorogation is a decision about the business of parliament, when it sits.

And he says prorogation is also very similar to dissolution – a decision that is non-justiciable.

(Prorogation is what happens when parliament gets suspended before a new Queen’s speech. It normally happens once a year. Dissolution is what happens when parliament gets suspended before a general election. In theory that should only happen every five years.)

Updated

Here is the passage from the government’s submission giving other examples of prorogation being used for political purposes. This is the paragraph Eadie referred to a moment ago.

The history of the power to prorogue parliament supports the fact that it has been used for political purposes, including for the purpose of restricting the time otherwise available to debate legislation, and for prolonged periods, including at moments of political importance and when the government of the day lacked a majority in the House of Commons:

(1) On 18 September 1914, shortly after the outbreak of the first world war, parliament was prorogued until 27 October, with the King’s speech on prorogation noting that the circumstances “call for action not speech”. On 16 October 1914, parliament was further prorogued by proclamation until 11 November 1914. In total, parliament was prorogued for a period of 53 calendar days during wartime.

(2) On 1 August 1930, parliament was prorogued until 28 October, a period of 87 days. This was during the onset of the great depression following the 1929 Wall Street Crash and when the then government of James Ramsay MacDonald did not command a majority in the House of Commons.

(3) Under s.2 of the Parliament Act 1911 as enacted, a non-money bill could only be enacted without the consent of the Lords if it was passed in three successive sessions by the Commons. As noted below, each session of parliament conventionally lasts for approximately a year. To facilitate the speedy passage of the Parliament Act 1949, the government arranged for a session of minimal length in 1948. Parliament was prorogued on 13 September 1948 to the following day. Following the passage of the parliament bill by the Commons, it was then prorogued again on 25 October 1948. The King’s speech which closed the session expressly noted that “The two houses have again failed to agree on the bill to amend the Parliament Act, 1911.”

Updated

Eadie says a decision to prorogue parliament is “fundamentally political”.

He says the government has given examples, in paragraph 71 of its submission (pdf).

Lord Wilson asks if the court is being asked to intervene in a political decision, or to decide if it clashes with a precious legal principle.

Eadie says sometimes precious principles of public law need to give way when the prerogative is being exercised.

Q [From Wilson]: I was thinking of a bigger purpose. If anyone is well placed to defend parliamentary sovereignty, it is us here. Does the use of the prerogative here collide with a principle that we are obliged to uphold?

Eadie says of course parliamentary sovereignty is important. But it depends on what it means. “Paradigmatically” it can make and unmake its own laws, he says.

He says he will argue that the phrase “parliamentary sovereignty” should not be too widely bandied about without people saying what it means.

Lord Kerr asks what would happen if a PM did want to stifle debate. If he decided to prorogue for one year, would that be appropriate?

Eadie says this was the question Lord Pannick raised yesterday. He says he will come back to this. But part of the answer is to remind the court of what the Canadian supreme court said about how you should be very careful about testing principles against extreme cases.

Kerr says this is not an unreasonable question.

Eadie says there are political controls in place. Ultimately it is for parliament to exercise controls

Sir James Eadie QC
Sir James Eadie QC Photograph: BBC

Updated

The lawyer and legal commentator Schona Jolly thinks the Lord Kerr questioning (see 10.55am) was significant.

Lord Kerr asks Eadie if he accepts that it is up to the court to decide the limits of prerogative powers.

Eadie says he does.

Q [From Kerr]: And do you accept that prerogative powers can be limited by fundamental rights?

Eadie does accept that.

He says it is for the court to decide all sorts of issues relating to the prerogative, including its limits.

Q [From Kerr]: Do you accept that the exercise of the prerogative to prorogue parliament can limit the ability of parliament to scrutinise the effective?

Eadie says prorogation “has the effects that it has”.

But he would argue this is a “well-established constitutional function”, exercised and to be exercised by the executive.

My submission will be that, despite those features, this is a well-established constitutional function, exercisable and to be exercised by the executive ...

[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.

He says he wants to analyse whether it is possible to apply standards to the way prorogation is used, and whether it is proper for the courts to intervene.

Q [From Kerr]: So you do not accept the argument that the prorogation in this case went beyond the proper use of this power.

Eadie says he does not accept that. He says it was a political judgment.

Updated

Eadie cites approvingly paragraph 47 in the judgment (pdf) from the high court in London, which ruled that the prorogation decision was non-justiciable. He says he particularly recommends the second sentence (which I’ve marked in bold).

Almost all important decisions made by the executive have a political hue to them. In the present context of non-justiciability, the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the executive’s decision or action. That is reflected in the last sentence of the passage from Lord Bingham’s speech in A v Secretary of State just quoted. It was stated more directly in the joint judgment of Lord Neuberger, Lord Sumption and Lord Hodge in Shergill v Khaira [2015] AC 359 at [40]: “The issue was non-justiciable because it was political. It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political.”

Lady Hale, the president of the court, intervenes. She says her computer isn’t working. So, she tells Eadie, if he starts citing documents, she may be in trouble.

From the legal commentator Joshua Rozenberg

Eadie is running through some of the cases cited in the government’s written submission (pdf) about how certain decisions are not justiciable.

He has just quoted from a judgment by Lord Bingham cited in paragraph 66. Bingham wrote.

It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain.

Updated

Sir James Eadie QC has started making his case.

He will be running through arguments set out in the government’s written submission (pdf).

Government QC James Eadie addressing supreme court

Sir James Eadie, who is representing the government, is addressing the court this morning. He will be arguing that the courts do not have the right to rule the suspension (prorogation) of parliament unlawful because Boris Johnson was using a prerogative power that is not justiciable (subject to adjudication by the courts).

Turning back to the European parliament for a moment, here is the text of the Brexit motion that MEPs will be voting on.

And here is an extract from what it says about a no-deal Brexit.

The European parliament ...

Notes that there can be no transition period in the absence of the withdrawal agreement nor any ‘mini-deals’ put in place to help mitigate the disruption of a disorderly withdrawal of the UK from the EU;

Stresses that further negotiations between the EU and the UK after the UK has withdrawn from the EU without a deal can only take place on condition that the UK honours its obligations and commitments in respect of citizens’ rights, the financial settlement and the Good Friday agreement in all its parts;

Notes that in the case of a ‘no-deal exit’, the UK’s financial and other obligations will still exist; affirms that in such a case it will refuse to give consent to any agreement or agreements between the EU and the UK unless and until the UK honours its commitments;

Recalls that, once such commitments are met, future EU-UK relations negotiations will require strong safeguards and level playing field provisions with a view to safeguarding the EU’s internal market and avoiding placing EU firms at a potential unfair competitive disadvantage; reiterates in that respect the conditions set out in its resolution of 14 March 2018 not least as regards ensuring high levels of environmental, employment and consumer protection; notes that any free trade agreement that fails to respect such levels of protection would not be ratified by the European parliament.

Updated

Supreme court hearing - What you need to know

I posted a version of this yesterday. But I will use it again, because it contains links that you may find useful if you are following the supreme court hearing in detail.

Judgments from the lower courts

Courts in England, Scotland and Northern Ireland have already ruled on prorogation and Brexit.

Last week the Scottish court of session ruled that prorogation was unlawful. What is really at issue today is whether the supreme court backs this decision or overturns it.

Here is a summary of the Scottish judgment. And here is the 68-page full judgment (pdf).

But the high court in London rejected a very similar claim, on the grounds that prorogation was a political matter and that it was not for the courts to decide whether or not it was proper. Here is a summary of that high court judgment (pdf). And here is the full judgment (pdf).

On Thursday, the high court in Belfast also found in favour of the government, but on a challenge claiming a no-deal Brexit would breach the Good Friday agreement. You can read that judgment here (pdf), but it is not central to the supreme court case.

Timetable

Here is the timetable for hearings on the court sittings page on the supreme court’s website.

Written submissions

The supreme court has also published the written submissions from the parties.

Here is the 25-page one from Gina Miller (pdf).

Here is the 93-page one from Joanna Cherry (pdf).

Here is the 46-page one for the prime minister and the advocate general for Scotland (pdf).

Barnier says even with no deal, UK and EU will still have Brexit problems to resolve

And here are some more extracts from what Michel Barnier, the EU’s chief Brexit negotiator, told MEPs in his speech. Some of the extracts I have translated using DeepL.

  • Barnier said that, even if the UK were to leave the EU without a deal, the problems at the heart of the Brexit talks would still have to be addressed. He said:

We want this agreement to protect the rights of the 4.5 million European citizens in the United Kingdom and British people in the 27 member states.

We want to secure the future for all project leaders who benefit from European funds in the territories. That is why we have decided with the United Kingdom that everything that was decided at 28 should be well paid, to the end, at 28.

We want to ensure peace and stability in Ireland.

And at the end of the day, we want to create the conditions of trust necessary to build our future relationship, as outlined in the political declaration.

If the United Kingdom leaves without agreement, all these issues will not disappear. We will have to resolve them in any event, prior to a future partnership with the United Kingdom.

  • He said the EU’s commitment to the backstop was “not ideological” but “totally pragmatic”. He said it was designed to achieve three things.

We do not want a physical border to return to the island of Ireland. We want to protect the Good Friday agreement in all its dimensions.

We must preserve the integrity of the single market.

We want to maintain the “all-island economy” and North-South cooperation provided for in the Good Friday agreement. Our mapping exercise with the British authorities shows how much this north-south cooperation is governed by law, supported by European policies and budgets from the beginning.

He said that UK government had said what it did not like about the backstop, but that that on its own was not enough. The EU needed “legally operational solution”, he said.

  • He urged people not to underestimate the consequences of a no-deal Brexit. He said:

I would recommend nobody underestimates the consequences of no-deal for UK first and foremost, but for us as well ... The consequences of Brexit are not theoretical. They are considerable.

Michel Barnier speaking to the European parliament.
Michel Barnier speaking to the European parliament. Photograph: Patrick Seeger/EPA

Updated

The European commission has just released the texts of the speeches by Jean-Claude Juncker and Michel Barnier. They are in the original French. English versions should be available later.

Updated

'Very little time remaining' - Summary of Juncker's Brexit speech to MEPs

Here is a fuller account of what Jean-Claude Juncker, the European commission president, told the European parliament in his speech earlier. (See 8.17am.)

  • Juncker said that the risk of a no-deal Brexit was palpable. He said that there was “very little time remaining” and that he was not sure the UK and the EU could reach a deal. Referring to his meeting with Boris Johnson in Luxembourg on Monday, he said:

The prime minister assured us that he continues to want an agreement. But, whatever happens, the United Kingdom will leave the European Union on 31 October with or without an agreement. That is why the risk of a no deal is palpable ...

The commission is prepared to work day in day out, morning until night - with a few breaks - to try to find the technical and political solutions we need but I am not sure that we will get there.

There is very little time remaining but what I do know is that we have to keep trying.
  • He said whether or not there was a deal would come down to decisions taken by the UK.
  • He confirmed that he was open to an alternative to the backstop. But he said that no real progress had been made in the talks with the UK, because they had not tabled an alternative plan. He said:

I said to to Prime Minister Johnson that I had no emotional attachment the safety net, to the backstop, but I stated that I stand by the objectives that it is designed to achieve. That is why I called on the prime minister to come forward with operational proposals, in writing, for practical steps which would allow us to achieve those objectives. Now, until such time as those proposals have been presented, I will not be able to tell you, looking your straight in the eye, that any real progress has been achieved.

  • But he also described his talks with Johnson as “in part positive”. He said:

What I can tell you [about the lunch with Johnson] is - and this perhaps runs counter to many press articles that have appeared in the UK - I can tell you that the talks we had were friendly, constructive and in part positive.

  • He signalled that the EU would not abandon Ireland as the talks continued. He said:

The EU has shown great unity of purpose, with solidarity with the member states most affected. This unity is our most precious resource and our greatest asset. It will continue to guide me over the next weeks and I’m sure it will continue to guide this house also in the future.

Jean-Claude Juncker speaking in the European parliament.
Jean-Claude Juncker speaking in the European parliament. Photograph: Vincent Kessler/Reuters

Updated

Farage claims UK and EU now 'very close' to deal

Nigel Farage, the Brexit party leader, is speaking in the debate now. He says Jean-Claude Juncker’s “emollient” tone suggests the UK and the EU are “very close” to agreeing a deal at next month’s EU summit. But, even without the backstop, this is a very bad deal, he says.

He says the UK cannot now rely on the “good faith” of the EU. That was illustrated by the behaviour of the “pipsqueak prime minister of Luxembourg”, he says. He says Xavier Bettel, the PM of Luxembourg, set out to “humiliate” Boris Johnson on Monday. And yet Xavier was “greeted like a hero” when he visited President Macron in Paris the following day, Farage says.

He says the only solution is a clean-break Brexit. Then the two sides can have a grown-up conversation about the future, he says.

The only way forward now is to deliver on the referendum is for a clean break Brexit. Once we have done that we will have a grown-up conversation about trade and about the way forward.

Nigel Farage speaking in the European parliament.
Nigel Farage speaking in the European parliament. Photograph: Patrick Seeger/EPA

Updated

These are from my colleague Jennifer Rankin.

EU facing 'more, rather than less, uncertainty' since Boris Johnson became PM, MEPs told

The European parliament debate was opened by the Finnish European affairs minister Tytti Tuppurainen. She was there to represent the European council, because Finland holds the EU presidency.

She said the EU was facing a “rather bleak situation”. She went on:

In July the UK got a new government and a new prime minister. Unfortunately it is increasingly clear that it has not helped to clarify the situation or the UK’s negotiating position.

When it comes to the most difficult questions - such as the Irish border - the UK has not tabled any new concrete proposals yet.

She said the UK parliament remained divided and the UK government was still insisting on its negotiating red lines.

We are faced with more, rather than less, uncertainty.

And she also said a no-deal Brexit remained “a quite likely outcome”.

Tytti Tuppurainen
Tytti Tuppurainen Photograph: European parliament

Updated

Geoffrey Van Orden, the leader of the British Conservatives in the European parliament and a member of the European Conservatives and Reformist Group, is speaking now. He says the UK government wants a deal, but it must leave on 31 October.

He criticises the European parliament’s Brexit steering group, which is headed by Guy Verhofstadt. He says it is not representative of the parliament.

Geoffrey Van Orden
Geoffrey Van Orden Photograph: European parliament

Marco Zanni, the Italian League MEP leader of the far-right Identity and Democracy group in the European parliament, defends Brexit. He says the EU should respect the decision taken by Britain, which has one of the oldest democratic parliaments in the world.

Philippe Lamberts, co-leader of the Greens-European Free Alliance in the European parliament, told MEPs that if the UK requested a Brexit extension, the EU should be willing to grant it.

Guy Verhofstadt, from the liberal Renew group in the European parliament, says Brexit has led to support for the EU going up.

He criticises the way the UK is handling the rights of EU nationals in Britain. There are examples of EU nationals being refused settled status even though they have been living in the country for one or two decades.

He says Boris Johnson likes to compare himself to movie characters, like the Incredible Hulk. But he should choose another role model, Verhofstadt says. He says Johnson should act like the nanny in Mrs Doubtfire.

He says he knows the British worry about the backstop. But if they don’t like it, perhaps they should give it a different name - like the safety net.

He says it would not work if one side could leave unilaterally.

He says some in the UK think that the EU will back down at the last moment. But that

We are not stupid. It means we will not kill our own companies. We will defend our own companies ... We will never accept what people call a Singapore by the North Sea.

Verhofstadt says that Brexit has caused deep divisions in the UK. But the EU will not let itself be divided in the same way, he says.

Updated

In the debate Iratxe García-Pérez, the head of the socialist group in the European parliament, said that MEPs would be open to the UK holding a second referendum. And she criticised the UK home secretary, Priti Patel, for saying that free movement would end immediately after 31 October.

Manfred Weber, leader of the centre-right EPP group in the European parliament, said in his speech that Brexiters claimed that Brexit would weaken the EU. But three years on, the EU remains strong, he said. He said it was the UK that was losing out, because jobs were leaving.

This is from Bloomberg’s Nikos Chrysoloras.

Barnier says no one should underestimate the costs of a no-deal Brexit.

He says he wants to create the conditions necessary to build a future relationship.

If the UK leaves without a deal, these questions do not disappear. They still remain - issues like peace in Ireland, citizens’ rights, budgetary issues. They would all need to be settled before the UK and the EU could agree a future relationship.

He says, three years after the EU referendum, we should not be “pretending to negotiate”. We need to move forward, he says.

Turning to the future relationship, Barnier says the political declaration opens up a path towards a future relationship of broad cooperation.

He says it currently points towards a free trade agreement. But the text would also allow a closer relationship, he says.

He says the UK wishes to revist the commitments made by Theresa May about maintaining a level playing field after Brexit (ie, remaining aligned to EU regulations.)

Barnier says the level of ambition reached by the EU will depend on the guarantees it gets from the UK, referring to things like social, environmental and competition law.

Michel Barnier
Michel Barnier Photograph: European parliament

Barnier says the EU is willing to work “day and night” to get a deal with the UK.

Michel Barnier, the EU’s chief Brexit negotiator, is speaking in the debate now.

He says Ireland is the big problem in the Brexit talks, because that is where Brexit could do most harm.

He says the UK has said what it does not like about the backstop. But is has not proposed an operable alternative.

He gives an example of the problem. Any cattle, or other animals, entering Ireland through Northern Ireland enter the whole of the EU single market. He says the EU has a long memory of potential safety problem (a reference to BSE, presumably). That is why health checks are so important.

Juncker says risk of no deal 'palpable' as MEPs debate UK's departure from EU

Good morning. It is day two of the supreme court hearing to decide if Boris Johnson’s five-week suspension (prorogation) of parliament was lawful, and I’ll be covering the hearing in detail when it starts at 10.30am. Here is our overnight story about yesterday’s hearing.

The UK parliament is not sitting at the moment, but the European parliament is and this morning it has just started a debate on Brexit. Jean-Claude Juncker, the president of the European commission, has just finished his speech. He said that the risk of a no-deal Brexit was “palpable” but that his talks with Boris Johnson on Monday were constructive. He said:

I can tell you that the talks we had were friendly, constructive and, in part, positive.

I will post more from his speech soon.

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.

Updated

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