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Tue 15 October 2019
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Court reporter James Doleman on day one of the momentous hearing at the UK’s Supreme Court to determine whether the Prime Minister acted unlawfully in advising the Queen to suspend Parliament.


Eleven judges of the Supreme Court assembled today to hear arguments in one of the biggest constitutional cases in history. Indeed, it is almost impossible to think of more consequential arguments than those they started considering today.

The three-day hearing at London’s Supreme Court – the highest appeal court in the UK – is, technically, the combination of two separate court cases in two separate legal jurisdictions: an English one, in which the High Court ruled that Boris Johnson’s prorogation of Parliament was legal; and a Scottish one, in which it was ruled that the prorogation was unlawful.

How the Supreme Court breaks that tie will have a huge bearing – not only on the course of Brexit, but on the unwritten British constitution itself.

The packed court heard first from the President of the Supreme Court, Lady Brenda Hale who said the case concerned “whether it was lawful for the Prime Minister to advise the Queen to suspend Parliament”.

“We will do right to all manner of people, without fear, affection or ill will,” she added. “We are not concerned with the wider political issue.”

That done, Lord David Pannick QC, appearing for businesswoman and campaigner Gina Miller against the prorogation, began his two-hour submission.

The Prime Minister has insisted that Parliament needed to be suspended to ensure a path to a Queen’s Speech, in order for his Government to set out its legislative plans for the year ahead. He has said that the move was unrelated to achieving Britain’s ‘do or die’ exit, with or without a deal, from the EU by 31 October.

However, Pannick suggested to the court that, rather than the official reason given for the suspension of Parliament, Mr Johnson’s aim was “to avoid the risk that Parliament would frustrate or damage his political goals”. He told the justices that, while the Government had the power to suspend Parliament, “a power can only be exercised for a proper purpose” and that “under our system, Parliament is sovereign and the Executive accountable to it”. Suspension, he said, “stands the constitutional principle on its head.”

Pannick also noted that neither Mr Johnson, nor any of his ministers, had made a sworn statement about their motives – a highly unusual move. “It is for the Prime Minister to show there was no improper motive, it is up to him to provide evidence,” he said. He suggested that Mr Johnson’s motive for not doing this was to avoid being cross-examined or even being held in contempt of court for being untruthful. “No Prime Minister has abused his powers this way in the last 50 years,” Pannick added.

The senior counsel concluded by arguing that, unlike the High Court, he believed that the decision to prorogue Parliament was ”justiciable” – an issue where a court could, and should, take a view. “No power enjoyed by the Executive can be used with the effect of undermining the fundamental principles of the rule of law,” he said. “Especially at the vital time. What happens if another Prime Minister wants to prorogue Parliament for six months, for a year?” He asked the court for a declaration “that the Prime Minister’s advice [to the Queen] was unlawful”.

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In the view of most observers, including this one, it was a powerful argument.

After lunch – during which rival groups of protesters boo’d, cheered and, in some cases, shouted “traitor” at those leaving court – proceedings resumed with another two-hour submission, this time from Lord Richard Keen QC, the Advocate General of Scotland, the Westminster Government’s representative in the Scottish legal system.

He argued that the Supreme Court should reject the decision of the highest court in Scotland, the Inner House of the Court of Session, that Boris Johnson’s advice to the Queen was unlawful. He argued that the prorogation of Parliament has no direct effect on anyone’s “individual legal rights” and that the Inner House in Scotland had “gone where the court should not go” in declaring the prorogation to be unlawful.

Keen, however, made a significant statement – one no Government spokesperson has made since the Scottish ruling. He said: “If the court declares the Prime Minister’s advice was unlawful, he will take any steps he needs to.” When pressed by Lady Hale on what this meant, he replied: “”He will do whatever if necessary.” Asked if this meant that Mr Johnson wouldn’t simply prorogue Parliament again if he loses this case, Keen said that, essentially, he didn’t know.

Keen also ran into more trouble when he argued that the courts had no role in political decisions. Asked by Lord Reid whether “if honours were being granted on the basis of bribery and corruption, would that not be improper?”, he asserted that this would be a political matter and therefore could not be declared unlawful. Keen continued by arguing that, even if the suspension of Parliament was achieved through bribery, “it would still not be a matter for this court”. This was greeted by stone cold silence.

The court was adjourned until tomorrow morning when it will hear from the counsel for the Prime Minister, Sir James Eadie QC.

It is only day one of three, but those arguing that the suspension of Parliament was unlawful will certainly be happier tonight than those backing the Government’s position.

The case continues. 

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