That’s it from us this evening, so here’s a summary of the day’s events.
- The big story was in the supreme court. Here’s a comprehensive summary of those proceedings.
- Ruth Davidson, the former Scottish Conservative leader, has said she does not know whether or not Boris Johnson really believes in Brexit. She said: “I don’t know what’s in [Johnson’s] heart. I don’t know whether he desperately believes in Brexit or he doesn’t believe in Brexit and I’m not going to pretend that I do. But I think people can tell if politicians are basically telling the truth or not and if they can tell if they mean what they say.
- The prime minister and the German chancellor, Angela Merkel, discussed Saudi Arabia, Iran and Brexit in talks this morning. No 10 said they discussed efforts to find a new Brexit deal.
And, if you’d like to read more, my colleague Owen Bowcott has the full story:
Updated
Here are some more details on those comments from Ireland’s deputy prime minister, Simon Coveney, who has said the EU is yet to see any written UK proposals for a new Brexit deal.
There is an obligation on the party looking for change to come up with solutions that can deal with the consequences of what they are asking for. If that question can’t be answered, we will not have a deal.
If the current position from the UK side is that the backstop needs to be removed then it is a perfectly reasonable request by us to say that creates huge problems and how are you going to solve it and what are you going to replace it with?
Asked when the public would be informed of where and when checks on the border would take place, he said:
First of all, we won’t sign up to any agreement that requires checks with the UK in terms of a permanent trading relationship linked to Brexit.
Coveney said any checks would be a “temporary, emergency measure” to protect Ireland’s place in the single market. He added he would have clarity on the location of the checks before Britain leaves the EU on 31 October.
The response to a no-deal Brexit will be checks somewhere. I don’t think they will be near the border.
Updated
It is not all bad new for Boris Johnson at the moment. According to some new polling from YouGov, his favourability ratings are slightly higher than they were when be became prime minister. Rather, he is slightly less unpopular, because his net score is still negative.
That’s all from me for today.
My colleague Kevin Rawlinson is now taking over.
Simon Coveney, Ireland’s deputy prime minister, had frank discussions with the Northern Ireland secretary, Julian Smith, outlining the consequences of dropping the backstop over dinner last night.
After addressing the cabinet in Dublin again today on Brexit planning, Coveney told reporters:
The risk of a no-deal Brexit remains significant as the political situation in London continues to be very uncertain.
We and the EU, as underlined by Michel Barnier when I spoke to him yesterday and President Juncker after his meeting with Prime Minister Johnson, are open to a deal. But it must achieve the aims of the backstop through a legally operable solution. We await written proposals from the UK side. We haven’t seen any written proposals to date.
He said that if the UK wanted the backstop dropped, it was reasonable that Ireland would spell out the problems with that, especially as it took more than two years of talks to reach that original deal.
Just because Boris Johnson says the backstop needs to go does not mean everybody else will respond positively to that because there are consequences.
Updated
Supreme court's prorogation hearing - Summary of day one
The supreme court prorogation hearing will go on for three days. After day one, who’s winning? I have quoted a couple of commentators brave enough to express a view (see 2.18pm and 4.12pm) but, honestly, no one knows. That is not just because trying to assess how it’s going by following the interventions does not always work. (See 4.35pm) It is because the judges will assess the appeal to a large extent on the quality of the arguments in the paperwork, and most of that is not available to viewers, and did not get aired in court.
On the basis of what we did hear, Lord Keen, who was representing the government, was probably less compelling than his opponent, Lord Pannick. But for the supreme court to rule against the government – to side with the Scottish court of session against the English high court – would amount to a bold act of judicial assertiveness, effectively creating new law curtailing the power of the executive. It could happen, but it would not be normal.
Here are the main points from today’s hearing.
- Lord Keen, who was representing the government, told the court that Boris Johnson would comply with any declaration it made. The fact that he felt the need to say this is evidence of the extent to which trust in the government to comply with constitutional norms is breaking down. As advocate general for Scotland, Keen is a member of the government, as well as a QC. He told the court:
If this court finds that the advice of the prime minister [to the Queen saying parliament should be prorogued] was unlawful, the prime minister will take all necessary steps to comply with any declaration made by the court.
But when asked if that meant parliament would definitely reconvene, Keen said it would be up to the PM to decide. He also refused to rule out the PM requesting a second prorogation, saying again that this would be a matter for Boris Johnson, or the “decision maker”, as he called him. And when asked if Johnson would allow parliament to meet and pass new emergency legislation if it wanted, in the event of the government losing, Keen replied:
It must be for the decision maker to consider the declaration made by the court and to ensure that he proceeds lawfully thereafter.
- The court was told that Boris Johnson had abused his power to prorogue parliament more than any PM in the last 50 years. (See 10.50am.) Addressing the court on behalf on behalf of Gina Miller, Pannick said that the government had failed to explain why the prorogation needed to be so long. And he suggested that Johnson’s refusal to provide the court with a witness statement suggested he had not been telling the truth about his motives for prorogation.
Here is my colleague Owen Bowcott’s story about this morning’s proceedings.
Updated
And this is from the barrister and legal commentator Adam Wagner.
Government seems behind after today’s hearing, based on interventions by justices. But wrong to assume that a judicial intervention indicates their view. Can just be testing arguments. Key also to see how they approach Sir James Eadie’s (for govt’s) submissions.
— Adam Wagner (@AdamWagner1) September 17, 2019
During the morning of today’s supreme court hearing, the live stream on the court’s website was accessed 4.4m times – with 2.8m stream requests being logged in the hour before the 1pm break for lunch, PA Media reports. Typically, the live streaming service is accessed about 20,000 times a month.
Updated
The European commission has renewed its call for the UK to come up with proposals for an alternative to the backstop. This is what its spokeswoman, Mina Andreeva, told a briefing in Strasbourg earlier.
We are still waiting for concrete proposals from the UK side.
Both sides have stated that they want to have a deal. A no-deal Brexit is in nobody’s interests so clearly there is the willingness to arrive to a solution.
But, again, I think we have recalled that it’s now the UK’s responsibility to come forward with legally operational solutions that are compatible with the withdrawal agreement that are necessary in order to move the discussions forward.
Here is one view on the proceedings, from the lawyer and legal commentator Carl Gardner.
I haven't followed very closely today. I've had it on in the background. And predicting court judgments is a mug's game which is why I can't help playing it. But anyway, from what I have heard I reckon the Miller and Cherry legal huddles will be happier than the government's.
— Carl Gardner (@carlgardner) September 17, 2019
Keen is winding up now.
He says the Scottish judgment should be rejected. And, even if the supreme court endorses what it decides, he says the point about the prorogation currently being null and of no effect (see 2.32pm) should be struck out.
And he says he will discuss with Lord Pannick what form of words could be used in any written undertaking by the PM that he will abide by the court’s decision. (See 2.32pm.)
And that’s it. The hearing is over for today.
I will post a summary soon.
Updated
Keen says the Scottish court was proceeding on the basis of a misunderstanding of how parliament operates.
Making the same point a few minutes ago, he said the Scottish judgment said parliament could reconvene itself at any time during an adjournment. But it cannot, Keen said. During an adjournment, parliament can only be recalled if the government asks for that, he said.
Keen quotes from the Scottish court judgment. He reads out this passage.
Although the planned prorogation would be 34 days, the expected conference recess of three weeks would mean that only one to three days would be lost in the week commencing 9 September and four in the week commencing 7 October.
That makes a total of seven days, Keen says.
But he says elsewhere in the judgment the Scottish court says the prorogation amounted to five weeks. He says the five weeks claim is wrong. This passage shows we are only talking about seven days, he says.
A judge asks why seven days were needed.
Keen does not answer the question directly. Why not seven days, he asks? He says there is no set number of days.
Updated
Keen says he does not see how the Scottish court could produce an inference of improper motive on the basis of the evidence available to it.
A judge asks why the prorogation had to last for five weeks.
Keen says that was because it covered the party conference season. He says actually only seven sitting days are being lost.
He says the Scottish court, the inner house of the court of session, made a “fundamental misunderstanding” in assessing the significance of the length of prorogation.
Another judge asks about a Spectator article written by Nikki da Costa on 29 June. It was headlined: “Will parliament be able to stop the next PM leaving without a deal?” The article refers to prorogation as a “nuclear option”. He asks Keen if he is happy for this to be taken in to account.
Keen says, when she wrote the article, she was a private individual, not director of legislative affairs at No 10.
He says the court could look at all sorts of speculation. But it should consider the evidence submitted by the government, which explains the reasons for what happened, he says. (See 3.32pm.)
Updated
Keen now quotes from what Boris Johnson said in response to what Nikki da Costa put to him in her memo. (See 3.32pm.) Johnson replied:
The whole September session is a rigmarole introduced to show the public that MPs were earning their crust. So I don’t see anything especially shocking about this proposition.
Keen says there was correspondence between the government and Gina Miller’s team about the production of documents for the court.
He says the government legal department sent a letter saying the documents it had submitted, contemporaneous documents sent to the PM, explained the thinking for prorogation.
In the letter, the government lawyers said they had nothing further to add.
He says the documents that were produced, quite exceptionally, included a cabinet minute.
He quotes from one of the documents – a memo from Nikki da Costa, director of legislative affairs, to the PM. He reads this out.
The current session is the longest since records began, and all bills announced as part of the last Queen’s speech have now received royal assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new prime minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the house returns in the autumn.
As the first week’s business in September has already been announced, I recommend dedicating the second to wash-up on bills such as R&R [restoration and renewals]. We would then prorogue sometime between the end of Monday 9th September and Thursday 12th September, allowing for the long-standing conference recess, and return on Monday 14th October with the state opening of parliament.
A judge asks if the reference to bills being carried over shows that prorogation was being considered at this point. The memo was dated 15 August.
Keen says that, at this point after such a long session, it would be normal to think of what is coming next.
Updated
Keen is now addressing what the Scottish court of session said about Boris Johnson’s motives for prorogation.
(This might be the hardest issue for him to address. The government’s claim that it had nothing to do with limiting the opportunities available to MPs to block Brexit is not widely believed.)
Rather curiously, Lord Keen, for the government, couldn't answer the question from one of the justices, Lord Hodge, about how the government can comply with regular NI reports to Parliament if it has been forcibly closed. He says he’ll come back on that later.
— Dominic Casciani (@BBCDomC) September 17, 2019
Keen refers to what Lord Carloway, the lord president of the court of session in Scotland, said in his judgment (pdf) about prorogation. Carloway said “decisions which are made on the basis of legitimate political considerations alone are not justiciable”.
But that raises the questions as to what political considerations are not legitimate, Keen says. He says the Scottish court did not answer this.
Updated
Back in the supreme court Lord Keen says parliament anticipated this autumn that it would be adjourned after the September sitting. That is why it passed the Benn act quickly, he suggests.
Here is my colleague Peter Walker’s story about Jo Swinson’s speech at the Lib Dem conference. Swinson is still speaking, but the text has been released to reporters in advance.
In the supreme court Keen runs through various previous examples of prorogation.
And he mentions the prorogation in 1948, which was for a party political purpose.
That prorogation took place when the Parliament Act allowed the House of Lords to block a bill for two sessions of parliament. At the time the Attlee government wanted to amend this. A bill to amend the act had already been defeated once in the Lords. According to a Commons library note (pdf), this is what happened next.
Parliament was first prorogued by commission on 13 September 1948 and a King’s speech was delivered on 14 September 1948. The Commons had ten sitting days (the Lords only five) before parliament was again prorogued by commission on 25 October 1948. A further King’s speech was made on 26 October 1948.
The period of prorogation in those instances was unusually short by the standards of the UK parliament (being just one day on both occasions). The second Parliament Act eventually received royal assent in December 1949, just over two years after it first passed second reading in the House of Commons.
Lady Hale questions this example, saying that this case involve prorogation being used to enforce the will of parliament, not to frustrate it.
Updated
At the Lib Dem conference in Bournemouth Jo Swinson has just started her leader’s speech.
There is a live feed here.
Keen says the power to prorogue parliament is not there just to allow a Queen’s speech.
He says Lord Pannick did not mention the Prorogation Act 1867.
And he says there are times when prorogation has taken place for political purposes.
PM will take 'necessary steps' to comply with any declaration from supreme court, court told
Keen says he will not accept that the Scottish court of session had the right to declare prorogation null and void.
For reference, this is what the Scottish court said in its summary of its judgment:
The court will accordingly make an order declaring that the prime minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.
Keen says William IV was the last monarch to prorogue parliament in person.
Now it is done by a royal commission.
He says, under the Bill of Rights, the courts do not have the right to question proceedings in parliament.
He says the Scottish court ruling saying prorogation is null and void must be rejected.
And he says the PM “will take all necessary steps to comply with any declaration of the courts”.
Lady Hale says the question of whether prorogation is actually a proceeding of parliament is a matter for the court to decide. The fact that the royal commission sits in parliament does not make it a proceeding in parliament, in terms of the Bill of Rights.
Another judge, Lord Kerr, asks what would happen if the supreme court finds against the government.
Keen says he has given “a clear undertaking that the prime minister will respond by all necessary means” to the supreme court’s decision. That would mean parliament sitting again, he implies.
Kerr goes again. But is it possible the PM could prorogue parliament again?
Keen says he is not able to answer that. That would be a decision for the PM, he suggests.
He repeats the assurance he is able to give. If the court finds that the advice of the PM to the Queen about prorogation was unlawful, “the prime minister will take the necessary steps to comply with any declaration made by it”.
Updated
From the Spectator’s James Forsyth
On the government side, concern about which way the Supreme Court will go is up following this morning’s session. Readers of the legal tea leaves reckon that the thrust of Lady Hale’s questioning was not good for HMG
— James Forsyth (@JGForsyth) September 17, 2019
Keen says the Scottish court accepted that the principle of non-justiciability does apply. What is at stake is whether the decision to prorogue is justiciable.
Keen starts by saying he agrees with the inner house of the court of session about this case not hinging on any particular aspect of Scots law. He says in this case the relevant constitution law applies to the UK as a whole.
Updated
Lord Keen starts making government's case at supreme court
Back in the supreme court the afternoon proceedings are starting.
Lord Keen QC, the advocate general for Scotland, is speaking now for the UK government. He is asking the court to reject the judgment of the inner court of Scotland’s court of session.
Updated
Former Scottish Tory leader Ruth Davidson says she does not know if Boris Johnson really believes in Brexit
Ruth Davidson, the former Scottish Conservative leader, has said she does not know whether or not Boris Johnson really believes in Brexit. In an interview with ITV’s Lorraine, asked about David Cameron’s claim that Johnson only joined the leave campaign to further his own career, she said:
I don’t know what’s in [Johnson’s] heart. I don’t know whether he desperately believes in Brexit or he doesn’t believe in Brexit and I’m not going to pretend that I do. But I think people can tell if politicians are basically telling the truth or not and if they can tell if they mean what they say.
Davidson said that one of the reasons she quit as Scottish Tory leader was because she found it hard to reconcile her political view that, in the light of the referendum result, Brexit should go ahead with her personal opposition to leaving the EU.
She also said she did not know why Johnson has prorogued parliament for so long. Asked about this, she said:
I think it was done in a bad way but the idea that a prime minister doesn’t suspend parliament in order to bring forward a Queen’s speech and a legislative agenda – up until recently that happened almost every year.
I was quite close to David Cameron and Theresa May, I’m not close to Boris Johnson, I’m not going to pretend that I’ve ever been part of his inner circle – I haven’t – so I don’t know why the government chose to do that and that’s one of the things the judges are going to be deciding, and what the Scottish case looked at.
Updated
Sir Edward Leigh, the veteran Conservative, has sent an email to MPs explaining why they should vote for him as next Speaker. He would treat them as grown-ups, he says.
I would be strictly impartial and deaf to any partisan influence. I would, in quiet dignity, dress, and demeanour, model myself on the present Lord Speaker. We should treat MPs as grown-ups and let them know when they will be called at the beginning of debates. The Speaker must always be scrupulously fair and polite to colleagues, speaking only to effect and briefly and submerge his personality into the role.
I would want to be a Speaker who seeks to unite the house in robust scrutiny. A Speaker who speaks only to good and powerful effect and who is the calm, self-effacing voice of the house.
Leigh also says he would be in favour of abolishing September sittings – which might get him Boris Johnson’s vote, in view of the fact Johnson thinks these are an unnecessary “girly swot” initiative.
Updated
Wake Up and Vote, a campaign that tried to increase the youth turnout in the EU referendum, has been fined £1,800 by the Electoral Commission for not submitting a full spending return. It said that it spend £66,383 during the campaign. But it also jointly funded an advertising campaign with DDB UK, which cost a total of £75,813, and under electoral rules it should have including the joint spending in its own campaign spending return.
Here is my colleague Owen Bowcott’s story about the opening of the supreme court prorogation case.
And this is how it starts.
Boris Johnson’s motive for proroguing the Commons for five weeks was “to silence parliament for that period”, the supreme court has been told at the opening of an emergency appeal.
The prime minister’s extended suspension of debate was carried out for an “improper purpose” in order to “avoid the risk of parliament undermining the policies of his executive”, said Lord Pannick QC, who was representing the businesswoman and legal campaigner Gina Miller.
Before the arguments formally began in central London, Lady Hale, the president of the supreme court, said it was facing “serious and difficult questions”. That was evidenced, she said, “by the fact that three senior judges in Scotland have reached a different conclusion to three senior judges in England and Wales”.
Johnson tells Merkel UK working 'with energy and determination' to get Brexit deal
Boris Johnson spoke to Angela Merkel, the German chancellor, this morning, Downing Street has said. They spoke about Saudi Arabia and Iran, but also about Brexit. According to Number 10, this is what was said on that topic.
On Brexit, the prime minister reiterated that the UK and the EU have agreed to accelerate efforts to reach a deal without the backstop which the UK parliament could support, and that we would work with energy and determination to achieve this ahead of Brexit on 31 October.
Number 10 said Johnson and Merkel would speak again at the UN general assembly in New York next week.
Updated
Victory for government could enable a future PM to prorogue for a year, court told
Pannick says, if this issue is not justiciable, people have to ask what might happen if another PM were to prorogue parliament for six months or for a year.
And he says it is no good referring to Dicey for guidance on this because he was writing in another era. And Dicey said something like that would be most unconstitutional.
Pannick says this is a legal question. And legal questions are for the courts to determine.
He says the only remedy he is seeking is a declaration that the PM’s advice was unlawful.
He says the government, in its submission, says the PM will comply with the declaration of the court.
Pannick concludes by apologising for over-running his time by a few minutes, eating into the time available for lunch.
And now the court adjourns until 2pm.
Pannick says it is more difficult to apply a Padfield principle to a prerogative power than to a statutory power.
But it is still possible, he says.
And he says there is an important principle at stake - whether the exercise of such a power frustrates the purposes for which such a power applies.
Updated
In the supreme court Pannick is winding up.
These are from the BBC’s Dominic Casciani and the legal commentator Joshua Rozenberg.
In final 10 minutes of session, Lord Pannick turns to government’s key argument - that the case cannot even be considered by judges. Tactically, he is trying to diminish its importance - he wants the court to focus on PM’s intention and its effect on Parliament’s sovereignty.
— Dominic Casciani (@BBCDomC) September 17, 2019
No surprise, he cites lots of case law arguing judges have the power to scrutinise ministerial prerogative powers which are not limited by clear acts of Parliament.
— Dominic Casciani (@BBCDomC) September 17, 2019
Pannick is rattling through some decided cases (“authorities”) that the PM relies on, not remotely thrown by the fact that he has just a few minutes left. When questioned, he can tell you exactly what these cases decided.
— Joshua Rozenberg (@JoshuaRozenberg) September 17, 2019
The prime minister’s spokesman said the supreme court case was mentioned by Boris Johnson during this morning’s cabinet meeting. “He mentioned the fact that the court case was ongoing and that we are confident in our arguments,” the spokesman said.
As the Press Association reports, asked whether Johnson should either give evidence or submit an affidavit to the court, the spokesman said:
I am not going to comment on an ongoing court case. The way court cases begin is that one side will set out their position and then there will be a response for the government. The court is the right forum for this to take place.
Pannick says the PM cannot have discretion as to the depth of the powers he enjoys.
Lady Arden says the Fixed-term Parliaments Act allows for prorogation.
Pannick says he is not challenging the power of the government to prorogue. But, given the junior role of the executive, he is arguing that it is implicit in the power of the executive that it will not remove the power of scrutiny other than for a legitimate purpose.
He says ending one session and starting another is a legitimate purpose.
But he says it is not proper to prorogue for so long as to frustrate scrutiny. He says in this case prorogation had the effect of “frustrating the constitutional principle of parliamentary sovereignty and supremacy over the executive”.
Lord Hodge asks if obtaining political advantage automatically makes a motive improper.
Pannick says if the purpose is to prevent scrutiny by the executive, then the purpose is improper.
But he says there is nothing wrong with proroguing just to have a Queen’s speech.
Updated
Pannick quotes from this blog by Prof Mark Elliott, professor of public law the the University of Cambridge. He only quotes briefly from what it says - the judges have the whole thing in their bundle - but here is a passage summarising Elliott’s argument.
Far from requiring the court to determine whether the duration is excessive, the issue in Cherry and Miller (No 2) requires the court only to determine whether, to begin with, prorogation was undertaken for a purpose that was legally impermissible because it lies outside the range of purposes for which the power can lawfully be deployed. This is a crisp question of constitutional law concerning the scope of the discretionary power to prorogue, as distinct from a question about whether discretion has been lawfully exercised. Such a question of law, about the scope of the executive’s legal powers, is manifestly one that lies within the field of matters with which courts can properly deal.
The result is that to approach Cherry and Miller (No 2) in terms of whether the courts can stretch the bounds of justiciability in a way that facilitates judicial scrutiny of the exercise of the prorogation prerogative is misconceived. It is misconceived because the legal issue at stake is not one upon which the non-justiciability doctrine can properly bite. That doctrine is concerned with limiting judicial involvement in the evaluation of the exercise of governmental powers whose use is capable of giving rise to questions that are unsuited, under the separation of powers, to analysis by courts on legal grounds. The justiciability doctrine is, however, logically incapable of biting upon questions about whether a given power exists and, if so, what its legal boundaries are. Questions about the purposes for which legal powers can and cannot lawfully be used are legal questions about the scope of such powers. It is questions of precisely that nature which are raised by the Miller (No 2) and Cherry cases. Consequently, the non-justiciability doctrine has no relevant application — and the suggestion by the divisional court that the “political” nature of the issue shields it from judicial review is entirely wide of the mark. Whether the supreme court will be prepared to treat the matters before it as justiciable remains to be seen, but there is no good legal reason for treating them as non-justiciable.
Pannick is turning to the third of his three main arguments, relating to justiciability. (See 10.41am.)
This is probably the most important aspect of this case. If Pannick cannot convince the supreme court that the PM’s decision to prorogue was justiciable, it will throw out the case, as the high court in London did.
Pannick says examples of long prorogations given by the other side in this case relate to the first half of the 20th century, when conditions were very different.
Updated
A judge puts it to Pannick that, if parliament wanted to hold the government to account in September, it could have held a no-confidence vote.
Pannick says the executive is answerable to parliament on matters of politics, and answerable to the courts on matters of law.
He says whether or not parliament wanted to hold a no-confidence vote in September is not relevant to the legality of what the PM did.
Updated
Pannick describes prorogation as a “pre-emptive strike” that “takes parliament out of the game” for the whole period of prorogation.
He says the sovereignty of parliament is the principle underlying the whole constitution.
But the PM’s prorogation sought to undermine this sovereignty, he says.
Pannick says the junior body in the constitution, the executive, cannot remove the power of the senior partner, parliament, to do its job, particularly when that job is scrutinising the executive.
Updated
Pannick refers the court to what Lord Drummond Young said about the role of parliament in paragraph 99 of the Scottish judgment (pdf). This is what that paragraph says:
Parliament has a second equally important function, namely that of holding the executive to account. The policies and actions of the government are subject to scrutiny in parliament by members of parliament. The United Kingdom operates by a system of representative democracy, and it is members of parliament, representing the interests of their constituents and the wider interests of the country, who are responsible for ensuring that the executive operates in the national interest. In particular, parliament is responsible for ensuring that the policies of the executive are properly considered in a democratic body, and that the actions of the executive are subject to critical scrutiny, with representatives of the government reporting on and explaining those actions. In this way parliament performs the fundamental role of protecting the country from the arbitrary exercise or abuse of executive power. The importance of the latter function is obvious, both in the abstract and in the light of the events during the 17th century that gave rise to the principle of parliamentary sovereignty.
Updated
Pannick is still addressing the argument that a power can only be used for its proper purpose.
He says, in constitutional terms, ministers are the junior partner. Parliament is the senior partner, he says.
Back to the supreme court, and this is from David Allen Green, the FT’s legal commentator.
Note how Pannick has not yet even covered the justiciability point yet
— David Allen Green (@davidallengreen) September 17, 2019
Skilful
By drawing the justices in to the substance of the case (and the justices are very engaged), he makes the justiciability issue seem unimportant
Sequencing in advocacy can matter
26.
And this is from the BBC’s Dominic Casciani.
This is a really good point. The PM’s best argument is that the court has no role in considering how Parliament is prorogued. Lord Pannick has ignored it & cracked on with a story of Boris Johnson and Brexit skullduggery: https://t.co/O9AjQmGNvF
— Dominic Casciani (@BBCDomC) September 17, 2019
Turning away from the supreme court for a moment, Michael Gove, the Cabinet Office minister in charge of no-deal Brexit planning, has been asked to explain to MPs the differences between Operation Yellowhammer documents. As the Press Association reports, Hilary Benn, the Labour chair of the Brexit select committee, said the papers the committee received described a “reasonable worst case scenario”, whereas a version obtained by the Sunday Times was called a “base scenario”. He urged Gove to share further documents about no-deal preparations with parliament. In a letter to Gove, Benn wrote:
I would be grateful if you could explain why the document we received is entitled the ‘reasonable worst case scenario’, whereas it has been reported that a very similar if not identical version obtained by the Sunday Times was entitled the ‘base scenario’.
Could you set out and explain any difference between the two documents.
Benn also called on Gove to release papers, which he had told the committee he would, about revised assessments for a no-deal Brexit.
Here is the text of Benn’s letter.
Benn could also have asked Gove why he described the Operation Yellowhammer assessment last week as a “reasonable worst case scenario”, when Boris Johnson, in his article in the Daily Telegraph yesterday (paywall), described it as “a very worst case scenario”. That implies something different.
Updated
Lady Hale asks which bills were lost during prorogation.
Pannick says he will find out.
(There is a list here, on the parliament website. Look for the government bills in the 2017-19 session that did not get royal assent, If they did get royal assent, that is indicated by the purple circle with RA on it.)
UPDATE: There is a good BBC article on the bills that were lost here.
Updated
Pannick says the five-week prorogation meant parliament could not legislate during this period, and it could not ask questions of ministers during this period, or hold debates.
A judge asked if there was any evidence that questions could not be asked. Pannick says that is how parliament operates; there are no questions during prorogation.
He refers the court to a House of Commons briefing paper (pdf). And he reads out this extract from it.
During prorogation parliament does not meet. This means that legislation cannot be considered or introduced by MPs and peers. Debates in the chambers or in Westminster Hall are not held, written and oral parliamentary questions cannot be asked, and committees do not carry out their usual business of inquiries and evidence-taking.
This temporary suspension of activity is not normally significant, as a new session typically begins shortly thereafter. For a longer prorogation, however, this suspension of activity weakens the ability of parliamentarians to hold the government to account.
Updated
From the BBC’s Dominic Casciani
Bit early to read the runes, but we've had three interventions/questions so far from Lords Carnwath and Reed. They were two of the three dissenting judges in the court's decision that Parliament, not the PM, has the power to trigger Art 50 and leaving the EU.
— Dominic Casciani (@BBCDomC) September 17, 2019
Pannick is now addressing his second main argument - that it is “elementary in public law” that a power can only be used for its proper purpose.
He says this principle goes back to the 17th century.
And he says this was backed up by a House of Lords judgment in 1968 - the Padfield case.
Pannick says this judgment said ministers should not use powers under an act of parliaement to frustrate the purposes of the act.
During the day I will be beefing up some of the earlier posts with direct quotes from the Press Association wires. If you want to read them, you may need to refresh the page.
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Pannick is summing up the first of his three main arguments. (See 10.41am.)
He says the PM would not have gone for such a long prorogation if it had not been for his desire to frustrate parliament.
This was an “improper motive”, he says.
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Pannick says Boris Johnson's refusal to provide witness statement should be held against him by court
Pannick says this case “cries out” for an answer from the PM in the form of a witness statement as to why he prorogued parliament.
He says, without a witness statement, the court should infer that the desire to frustrate parliament was a factor in prorogation, he says.
The courts in addition should be prepared in the circumstances to draw an inference from the absence of any evidence on the government’s side by way of a witness statement.
We submit that on all the material the court should conclude that, but for the prime minister’s wish to avoid parliamentary control, he would not have recommended to Her Majesty a prorogation for a period of longer than five weeks, but he would have recommended a substantially shorter period ... as had occurred on every occasion ... in the last 40 years.
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Boris Johnson has not explained why prorogation had to be so 'exceptionally long', court hears
Pannick says the PM has not made a witness statement giving his reasons for proroguing parliament. He refused, even though his motives were key to this case.
Pannick says if the PM had provided a witness statement he would have been open to cross-examination.
The production of a witness statement from the prime minister, or indeed anyone else, setting out the reasons for advising on a prorogation as long as five weeks would have had legal consequences.
The legal consequences of such a witness statement would have been, almost inevitably, an application to cross-examine.
The legal consequences would be that it would be a contempt of court, of course, for such a witness statement not to tell the truth.
Our submission is that the documents [before the court] pose more questions than they answer, as the inner house [of the court of session in Scotland] has pointed out, and in any event the production of those documents is no substitute for evidence from the prime minister or someone on his behalf stating to the court in terms why he thought prorogation for the exceptionally long period of five weeks.
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Pannick says he wants to bring up two additional pieces of evidence that back up the idea that the PM prorogued parliament to frustrate it.
He quotes from an interview Boris Johnson gave to Sky News after the prorogation announcement in which he said:
The best way to leave with a deal is if our friends and partners over the channel don’t think that Brexit can be blocked by parliament.
And Pannick quotes from a BBC interview in which Johnson made the same point.
Pannick says he is not interested in whether Johnson was right. He is citing these quotes as evidence of the PM’s motive for proroguing parliament.
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Pannick says he has finished his introduction.
Now he is turning to his first main argument – the facts of this case. (See 10.41am.)
This is the argument that prorogation was designed to frustrate parliament.
He says he backs the arguments made by the court of sessions on this. In particular, he refers the judges to this passage from the Scottish judgment.
Here is an excerpt from one of the paragraphs in the judgment (pdf) that Pannick refers to.
In neither the memorandum nor the prime minister’s comments is any actual reason for the prorogation given other than a desire to begin a new session of parliament with, as is customary, a Queen’s speech in which the government’s legislative programme is set out. Reference is made to the fact that the legislative programme for the present session of parliament is nearly at an end, which would provide a valid reason for starting a new session. No attempt is made, however, to explain why a prorogation of five weeks is necessary at a time of acute national controversy. The critical complaint about the prorogation is not the fact that it occurred; short prorogation is regularly used to start new parliamentary sessions. The complaint rather relates to the length of the period during which parliament is to be prorogued, without any power to resume sitting during that period.
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Pannick now reads out the quote. Jacob Rees-Mogg told the Today progamme that the Queen had no discretion over prorogation. She had to do as the government advised, Rees-Mogg says.
Pannick says he is making no criticism of the Queen in these proceedings.
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Pannick is now trying to find a quote from Jacob Rees-Mogg, the leader of the Commons, on the Today programme.
But the judges cannot find it in their bundle of court documents, not all of which seem to be marked up in the same way.
Boris Johnson has abused his powers on prorogation more than any PM in last 50 years, court told
Pannick quotes paragraph 77 from the government’s case (pdf). It says:
There is no authority (domestic or decided in any country operating a Westminster system of government) which supports the proposition that the exercise of a power to prorogue the legislature is amenable to judicial review.
Pannick says his case is that what the government is doing is exceptional. He says:
No prime minister has abused his power in the manner in which we allege in at least the last 50 years.
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Pannick says the government has also argued that parliament did sit in September, and will sit again on 14 October. And during the September sitting it legislated, the government has argued (implying that prorogation did not frustrate parliament).
But Pannick says it is not for the court to argue what parliament might or might not do when it is sitting.
If the PM acted for an improper motive, it is not open to him to say now that his fear was mistaken.
He says parliament may wish to impose further obligations on the period up to the EU summit in October.
The issues in these proceedings are “very far from academic”, he says.
Pannick says the government has argued that there are legislative provisions that relate to parliamentary sittings, such as the Northern Ireland (Executive Formation) Act.
He says these provisions do not invalidate the point that parliament should not be prorogued for an improper motive.
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Pannick turns to three arguments advanced by the government.
The government is arguing that there are no legal rules relating to prorogation, only conventions.
Pannick says he is not arguing that prorogation has to last for a maximum amount of time.
He says what matters here is intention. And in this case the length of the prorogation suggests that the PM’s motive was to “silence parliament” during this period.
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Lord Pannick QC is now speaking.
He is speaking on behalf of Gina Miller.
He says he wants to make three main arguments.
First, he says, he is arguing that the prime minister opted for a five-week prorogation to limit the opportunity of parliament to frustrate his government’s policies.
Second, he says, he is arguing that it is “elementary in public law” that a power can only be used for its proper purpose. That applies to prerogative powers as well, he says.
He says for the executive to use a prerogative power to evade the scrutiny of parliament stands the principles of constitutional law on its head.
He says he will argue that the government is arguing the “constitutional novelty” that the powers of the legislature to scrutinise the executive are subject to powers exercised by the executive.
And, third, he says, he will argue that the high court was wrong to argue that the decision to prorogue was not justiciable (subject to adjudication by the courts). He says he is not arguing how long prorogation should be.
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Lady Hale, the president of the supreme court, starts.
She says this is a difficult case because senior judges in England and Scotland have reached different conclusions.
She says this case will not decide how and when the UK leaves the EU.
She says these appeals have been heard at very short notice.
As usual, these proceedings are being live-streamed so that anybody who wishes to do so... can watch the arguments as they unfold.
This is a very important aspect of open justice and we hope that it will enable many people to understand what these appeals are all about and, just as importantly, what they are not about.
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The 11 supreme court judges hearing the case are now taking their seats.
That means all but one of the 12 judges on the court are here - an indication of how important this case is seen.
Supreme court hearing
The supreme court hearing is about to start.
There is a live feed at the top of the blog.
You can tell the supreme court hearing is important because David Dimbleby has turned up. According to the Press Association, the broadcasting veteran has been speaking to those queuing to get into the court hearing. Dimbleby told PA:
I lived through Suez, the miners’ strike, I lived through the poll tax debate and the trouble then. I lived through the Iraq demonstrations - I’ve never seen the country so divided as this ...
The prime minister is accused of lying to the Queen – let’s put it bluntly – and getting parliament suspended without good reason and that’s big potatoes, it has to be.
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Supreme court hearing - What you need to know
To make sense of any court hearing, you need to have the relevant paperwork to hand. Here is a guide to the background information you need to make sense of today’s proceedings.
A good starting point is my colleague Owen Bowcott’s guide to the issues at stake.
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
ITV’s Robert Peston has posted on Twitter a guide to what will be happening when during the three-day supreme court hearing.
was unlawful. See attached for the details of this legal and constitutional blockbuster pic.twitter.com/agyIopeyAM
— Robert Peston (@Peston) September 16, 2019
There is a bit more detail 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).
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A revived Stormont assembly could be part of the Brexit solution, the Northern Ireland secretary, Julian Smith, has said.
In Dublin, where he met the deputy prime minister, Simon Coveney, and a delegation from Sinn Féin, Smith was asked if Stormont would have a say on regulatory alignment on both sides of the border if Brexit talks collapsed. He replied:
I think it would be very helpful if the assembly was back up and running. I think there are opportunities through the consent mechanisms from the Good Friday agreement and I think the assembly and executive up and running could be part of that.
However, he declined to say whether the mechanism would require consensus from Stormont or a majority vote, which raises concerns that the Democratic Unionist party could block regulatory alignment. He went on:
I think you are now drawing me into an area which I am not responsible for. The Brexit negotiations are being led by the prime minister.
The Irish government has said a veto for any Stormont party would not be acceptable to the EU. It has also warned that a deal centring on agri-food alignment only would be doomed to failure as it only accounts for 30% of border trade and does not address other political and cultural issues in the backstop.
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Joanna Cherry, the Scottish National party MP who led the legal challenge against prorogation at the Scottish court of session, told BBC Radio Scotland this morning she was “cautiously optimistic” about winning at the supreme court. She said:
I’m cautiously optimistic that [the Scottish ruling] will stand.
I think that Scotland’s supreme court reached the right decision here for the right reasons and I’m cautiously optimistic that at least a majority of the UK supreme court justices will follow.
I think Scotland does have a unique constitutional tradition but I think the way in which Scotland’s supreme court decided this case could easily be followed by the UK supreme court. And I think the heart of the matter was set out very well by Lord Drummond Young in Scotland when he said it’s not the job of the courts to subject government to political scrutiny, that’s the job of parliament, but where government prevents parliament from doing that job of scrutiny, the courts can step in to make sure that parliamentary democracy is restored.
I think that’s the heart of the Scottish judgment and I think that sets out the constitutional position as it should be and as I believe it is across the UK and that’s why I’m cautiously optimistic that the UK judges will follow the Scottish courts.
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Gina Miller, the businesswoman and campaigner who brought one of the cases being decided by the supreme court, has issued this statement ahead of today’s hearing.
As with my first case, my supreme court case is about pushing back against what is clearly a dramatic overreach of executive power.
This is an issue that cuts across the political divides – and the arguments about the EU – and it has united remainers and leavers and people of all political complexions and none in opposition to it.
The precedent [Boris] Johnson will set – if this is allowed to stand – is terrifying: any prime minister trying to push through a policy that is unpopular in the House and in the country at large would from now on simply be able to resort to prorogation.
No one could ever have envisaged it being used in this way: this is a classic power grab.
The reason given for the prorogation was patently untrue and, since then, the refusal to come clean or provide any of the disclosures we have asked for has compounded the deception.
It is my view – and the view of a great many others – that Mr Johnson has gone too far and put our parliamentary sovereignty and democracy in grave danger by his actions.
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Here are some pictures from outside the supreme court.
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Given the wider context, Downing Street might have thought twice before deciding today was the day to send Robert Buckland, the attorney general, out into the studios to promote a plan for longer jail sentences for people who break the law. But that is what he was doing on the Today programme when he refused to rule out Boris Johnson suspending parliament for a second time before the Brexit deadline on 31 October. Asked if it was even “remotely conceivable” that Johnson might suspend (prorogue, to use the technical term) parliament again (MPs are due to return on 14 October), Buckland did not say no. Instead he replied:
Well, you know, it feels in politics, Harold Wilson said a week is a long time in politics, it seems like an hour is a long time in politics at the moment. For me to sit here and imagine what might happen at the end of October, I think, is idle. What I do know is, if we are able to, we will have a Queen’s speech in mid-October, there will be debate during that time, and a vote as well, perhaps a series of votes.
In an interview with the BBC’s Laura Kuenssberg yesterday, Johnson himself also refused to rule out suspending parliament again when asked directly to do so.
Joe Moor, who was the director of legislative affairs at Downing Street when Theresa May was prime minister, explained in an article in the Sunday Telegraph two days ago (paywall), that if the government wins the supreme court case starting today, it would be possible for Johnson to suspend parliament again after it returns on 14 October, at least until 6 November. It would have to be sitting on those two days because of an amendment passed to the Northern Ireland (Executive Formation) Act, Moor explained.
All of which is why today’s supreme court hearing is so important.
Here is my colleague Owen Bowcott’s overnight preview story.
And here is his analysis of the issues at stake.
There is a live feed of the hearing, so I will be covering it in detail. Undoubtedly it is likely to be heavy going – the supreme court is not the Old Bailey, and if you are not interested in arcane points of constitutional law, it might be a day to tune into the Lib Dem conference instead – but this is a case that could reset the boundaries between parliament and the executive, and curtail or expand Johnson’s Brexit options, so it is clearly of the utmost importance.
Here is the agenda for the day.
9.30am: Boris Johnson chairs cabinet.
10.30am: The supreme court begins the three-day hearing to decide whether Johnson’s lengthy suspension (prorogation, to use the technical term) of parliament was unlawful.
2.10pm: Jo Swinson, the Lib Dem leader, winds up her party conference with her keynote speech.
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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