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Tue 17 September 2019
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Court reporter James Doleman on explosive revelations from Scotland’s Court of Sessions as Boris Johnson faces a legal challenge over proroguing Parliament.


Previously secret documents, revealed in court today, show that Prime Minister Boris Johnson was plotting to suspend Parliament while publicly denying it.

A memo dated 4 August suggesting the move, written by his legal advisor Nikki De Costa, was ticked by Johnson who added the handwritten word “yes”. He followed this up with a handwritten note stating: “The whole September session [at Westminster] is a rigmarole introduced to show the public that MPs are earning their crust.”

The documents came to light in Scotland’s Court of Session in a case in which MPs are asking a judge to halt the proroguing of Parliament, having been delivered to the petitioners at 10.55pm last night.

“We have a Prime Minister seeking to hold office without accountability, power without responsibility”

Aiden O’Neill QC

The court was told that this was the latest episode in what QC Aiden O’Neill called a further sign of the Prime Minister’s “incontinent mendacity”.

In a blistering opening speech, O’Neill attacked Johnson for not submitting a sworn statement, accusing him of treating the court with contempt, arguing that “the executive’s power can never be used to defeat rights granted by Parliament,” including the European rights that would be lost in a ‘no deal’ Brexit.

He told the court that the plan to suspend Parliament showed “we have a Prime Minister seeking to hold office without accountability, power without responsibility” and said the Royal Prerogative, which had been used to suspend Parliament, was “the relic of a bygone age”.

The QC then urged the court to pass an interdict – an injunction in English law – saying that the court was the “guardian of the constitution and the rule of law” and that “the only constitutional actor still standing”.

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Responding for the Government, David Johnson QC argued “this is not something that should be in the courts”, saying that the case was “academic” as it applied to a political matter that was “non-justiciable”.

He told the presiding judge, Lord Doherty: “We are not facing an out of control executive trying to remove the franchise, we are talking about five weeks of prorogation.” O’Neil responded: “How long is acceptable, five weeks? Five months? Five years?… The Government’s decision is not only unconstitutional, it is inept.”

Doherty told the court that he would attempt to make his decision overnight and give a verdict tomorrow. Whatever his verdict, what seems certain – if not overtaken by events in Westminster – is that the case will soon be heading to the Supreme Court for a final decision.

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