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Court Reporter James Doleman on day two of the momentous Supreme Court hearing on whether Prime Minister Boris Johnson acted unlawfully in advising the Queen to suspend Parliament.
The Supreme Court was urged not to allow “the mother of Parliaments to be shut down by the father of lies” in the second day of the landmark case examining Boris Johnson’s proroguing of Parliament.
The statement, made by Scottish QC Aidan O’Neill, came at the conclusion of his impassioned two-hour submission, in which the advocate described the Supreme Court – the highest appeal court in the UK – as “the last constitutional actor still standing” and asked the 11 judges hearing the case to reject the Government’s appeal.
The court is dealing with two linked appeals: 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.
Earlier, the assembled justices had heard from Sir James Eadie, on behalf of the UK Government, who argued that the “the power to prorogue has been reserved, by Parliament, to the Government”. “It would not be constitutional for the court to judge [on the matter] as the separation of powers is a fundamental principle,” he argued. In response to questions on the matter, he added: “There is no use just turning up and shouting about parliamentary sovereignty.”
But sovereignty was still the key issue. Eadie was quizzed by one of the judges, Lady Jill Black, on how – since proroguing “removes Parliament from the picture” – MPs could keep a check on the executive over Brexit? The Government counsel responded that “Parliament could respond beforehand and afterwards”, although Lady Black then wondered: “How does afterwards help?”
Asked about the absence of any sworn witness statement from the Prime Minister about what his motives to suspend Parliament were, Eadie replied: “We expect the court to operate on the basis of the documents that have been produced.”
Eadie concluded by saying that Parliament will sit again on 17 October, leaving it with 17 days before the Brexit withdrawal date of 31 October. He asked the justices to dismiss the verdict of the Scottish court and uphold that of the English High Court.
The Government’s counsel was followed by Aiden O’Neill, who holds the rare distinction of being a “double silk” – a practicing QC in both the Scottish and English courts.
O’Neill apologised to the judges for his written argument being so long, quipping that he “didn’t have time to write a shorter one” and that “it had been optioned as a screenplay for Braveheart 2.” He submitted that the prorogation of Parliament had been carried out for an improper purpose and had been done in bad faith. He also returned to the issue of the lack of a sworn statement from Boris Johnson.
“We have no affidavit, we have no evidence,” he told the court. He also noted that, while the Scottish court was told that redactions had been made to the documents given to it for legal reasons, it transpired that one redaction was a handwritten comment from Boris Johnson calling David Cameron a “girly swot”. O’Neill said that the court should now demand the full, unredacted versions of the Government documents presented to it.
In his impassioned conclusion, O’Neill urged the judges to uphold the decision that the prorogation was based on illegal advice to the monarch. “They think they can do anything until they get stopped, that’s not how it works, everyone is subject to the law, no-one has absolute power,” he remarked of the Government.
“Stand up for truth, stand up for reason, stand up for democracy, a constitution based on laws not the passing whims of men,” O’Neill told the judges, concluding that “this Government has shown itself as unworthy of our trust.”
The court was adjourned until tomorrow morning for the last day of arguments, with a verdict expected late this week or early next.