Court told of 'improper' motive for Commons prorogation

Despite his claim that it was merely to tee up a new legislative session, the 11 justices were told by lawyers challenging the prorogation that the Prime Minister’s true intent had been to “silence” a Parliament he saw as “an obstacle to the furtherance of his political aims”.

However, the Government insisted Mr Johnson had been entitled to suspend Parliament, even for overly political reasons.

In another extraordinary moment, the Government’s lawyer refused to rule out Mr Johnson proroguing Parliament for a second time if the court found against him.

Lord Keen, QC, the advocate general for Scotland, gave an undertaking that Mr Johnson would abide by the court’s ruling if it found the “original” prorogation was unlawful.

But when asked if the Prime Minister would also agree not to prorogue Parliament again, Lord Keen said: “I’m not in a position to comment on that proposition at all.

That will have to be addressed by the decision-maker.”

Earlier in the day, Justice Secretary Robert Buckland had also refused to rule out a second suspension, telling Radio 4 it would be “idle” for him to speculate on what might happen next month.

The highest court in the land is being asked to give a definitive ruling on whether Mr Johnson exceeded his powers when he asked the Queen on August 28 to prorogue Parliament. 

Her agreement saw Westminster suspended on September 9 until October 14.
As a crowd of around 40 protesters waved signs outside saying “Defend democracy” and “Reopen Parliament”, the court’s president, Lady Hale opened proceedings by stressing the case was about whether the PM’s advice to the Queen was lawful, not the timing of Brexit.

READ MORE: Supreme Court urged to rule Johnson’s suspension of Parliament unlawful 

She said the bench would determine “serious and difficult questions of law”, rather than the “wider political issues” which formed the backdrop. 

Legal observers suggested the first day had gone poorly for Mr Johnson, with the justices asking for a written undertaking on what he would do if he lost. 

It was also reported that Mr Buckland had to remind the Cabinet yesterday of the importance of respecting the independence of the judiciary in these “febrile times”, further suggesting the Government is gearing up for a defeat.

They justices also appeared unwilling to accept the UK Government’s first line of defence, that the issue was a purely political one, and so outside the court’s ambit.

The High Court in London last month agreed with the UK Government on this point.
However three appeal judges at the Court of Session in Edinburgh last week took a different position, ruling that the matter was indeed ‘justiciable’, and not solely one of politics.

If the UK Supreme Court agrees with the Scottish judges on that point, they will then consider whether Mr Johnson exceeded his powers in proroguing parliament in the way he did.

The Scottish judges said the suspension was unlawful as its true intent had been to “stymie” parliamentary scrutiny of Brexit, effectively accusing the PM of misleading the Queen.

If the Supreme Court agrees, it could be fatal for Mr Johnson. The former Tory Attorney General Dominic Grieve has said that if the court implies Mr Johnson lied to the Queen it would be a resignation issue.

READ MORE: Boris Johnson tells Angela Merkel UK will work with energy and determination to get deal 'ahead of Brexit on Oct 31' 

The English case was brought by activist Gina Miller, who won a previous legal challenge to ensure MPs had a vote on invoking Article 50 to trigger Brexit and is now seeking an order to force the recall of parliament.

The Scottish case was brought by 75 MPs and peers led by the SNP MP Joanna Cherry QC.

Lord Pannick QC, for Ms Miller, said the PM’s decision was an “unlawful abuse of power”, and highlighted the government’s failure to provide a witness statement to explain its reason for shutting down Parliament for five weeks, rather than tacking a short prorogation onto to the end of the conference recess, when parliament would still have ticked over.

He said: “The exceptional length of the prorogation, in this case, is strong evidence that the Prime Minister’s motive was to silence Parliament for that period because he sees Parliament as an obstacle to the furtherance of his political aims.

“[His] reasons for advising on a five-week prorogation were improper in that they were infected by factors inconsistent with the concept of parliamentary sovereignty, in particular... concern that parliament might take steps which would undermine the government’s negotiating position with the EU.”

 Responding for the government, Lord Keen said previous prorogations had “clearly been employed” when governments wanted to “pursue a particular political objective”, adding: “They are entitled to do so.”

He said if MPs did not want Parliament to be suspended they had “adequate mechanisms” and opportunities to stop it in its tracks by passing new laws - pointing to the fact a bill to block a no-deal Brexit was passed in just two days.”

Lord Keen added: “It is not for the courts to overlay their views on when Parliament should or should not have [acted]... that would be to intrude over the boundaries of the separation of powers.”

He admitted the UK government could have opted for a short prorogation on the end of the conference recess.

He was also challenged by Lady Hale when he cited the “nakedly political” use of prorogation in 1948, when Clement Atlee’s Labour government used it twice in quick succession to overcome a hostile House of Lords blocking its legislation.
Lady Hale intervened: “It could be said it was in pursuit of democracy rather than opposed to it, to enforce the will of the House of Commons.” 

Lord Keen said it had been an example of the executive pursuing a political objective which “they are entitled to do so”.

After the hearing, Ms Cherry said she was “cautiously optimistic” about the outcome.

The court will hear more submissions on the Scottish case today and tomorrow and is expected to give a ruling next week.