Boris Johnson's suspension of Parliament probed in Supreme Court
All rise: our live coverage is wrapping up after an eventful day in the UK Supreme Court.
Thanks for getting lost in the weeds of British constitutional law with us -- you can follow the developments on Thursday here.
A second day of the blockbuster Supreme Court hearing on Boris Johnson's suspension of Parliament has drawn to a close.
It was no less fascinating than the first. Scottish advocate Aidan O'Neill, acting for the claimants in Scotland, took a decidedly more colorful and less forensic approach than the the one employed on Tuesday by Lord Pannick, his English counterpart, deploying references to everything from Shakespeare to Braveheart to the pattern of the carpet in the chamber.
Earlier, government barrister James Eadie was more measured, concerning himself with the central question of justiciability; namely that the prorogation of Parliament is a political decision that has no business in the courts.
By any measure, Eadie had the rougher time – the judges pressed him hard on whether the Queen could have said no to Johnson's request to suspend Parliament. And he came under considerable pressure over why no senior member of the government, beyond the Treasury solicitor, had provided sworn statements in the case.
But it would be unwise to draw any inference from the questioning – UK Supreme Court justices are notoriously inscrutable.
The court will return on Thursday morning for a third day of arguments and a decision in the case could come towards the end of the week. But, given the complexities of the arguments and the fact that two appeals are being heard at once, judges may need more time to deliberate.
So how will it go? Only a fool would make a prediction, but, broadly speaking, there are three paths they could take.
- Uphold the London ruling: In this scenario, the Supreme Court would side with the High Court decision that prorogation is in all cases a political matter, and not one that can be ruled on by the courts. This would be a big win for Boris Johnson's government, and could set a significant precedent that limits the role of the judiciary in British democracy.
- Uphold the Scottish ruling: This would mean agreeing both that the courts have a role in reviewing prerogative powers, and that Johnson's exercise of them in this case was unlawful. That would be a huge blow for the Prime Minister, as it would essentially rule that he had lied to the Queen. The Supreme Court would find itself at the center of a bitter and undoubtedly ugly argument over whether the justices had overstepped their powers.
- Land somewhere in the middle: If they wished, the justices could take elements of each ruling. They could accept the argument that courts can in principle rule on matters such as prorogation – but that Johnson's government had acted lawfully in this case. That would essentially be a warning shot to future governments that if they try to limit the supremacy of Parliament in a more egregious way, the courts could step in.
The court has risen after hearing a second day of evidence, and will return tomorrow at 10:30 a.m. (5:30 a.m. ET).
In the Supreme Court, lawyer Aidan O'Neil has launched a stinging attack on the UK government as part of his statement to the eleven judges -- interspersed with yet more references to British political and cultural history.
Regarding the lack of witness statements from the government, an issue which has been raised several times over the past two days, O'Neil said observers might assume that a government "would engage solely in high politics, as opposed to low, dishonest, dirty tricks, but I’m not sure we can assume that of this government in the attitude that has been taken publicly by its advisers and the Prime Minister himself to the notion of the rule of law."
In his written argument, O'Neil adds that a memo to Boris Johnson on August 15 and the Prime Minister's response the following day showed that "the true dominant purpose of prorogation was, as the Inner House correctly observed, to stymie parliamentary scrutiny of the executive regarding Brexit".
"Lying (albeit wholly unconvincingly) about the true reasons for exercising the prorogation power in the manner, at the time and for the period it has been exercised in this case, calls into question the lawfulness of the executive's action," he added.
Boris Johnson was heckled during a hospital visit in London on Wednesday, in another awkward public outing for the prime minister.
Omar Salem, a Labour activist, stopped Johnson as he walked down the hospital's corridor, telling him the National Health Service has been "destroyed" by cuts in funding and mismanagement.
"It's been destroyed, and now you've come here for a press opportunity," the man says.
Remarkably, Johnson replied: "Well actually, there is no press here," despite a press pack standing feet away and the encounter being filmed by a Reuters camera reporter.
"What do you mean there's no press here, who are these people?" Salem responded, gesturing to the press.
Salem said on Twitter that he was at the hospital with his ill seven-year-old daughter.
Responding to Salem's comment that there were not enough doctors and nurses on his ward, Alan Gurney, chief executive of Whipps Cross hospital, told the PA news agency: "We are constantly reviewing staffing levels on our wards to ensure our patients are safe at all times, but occasionally - as in fact happened on this ward last night -- an unexpected emergency in one part of the hospital can cause a temporary pressure elsewhere."
Back at the Supreme Court, lawyer Aidan O’Neil argues that the thrust of the debate is not how long Parliament is being prorogued -- government lawyers have stressed that only up to seven working days will be lost due to conference season, but critics note the five-week shutout is more severe than a simple recess would have been.
“It doesn’t mater how many (days) it is, it’s what its effect and intent is," O'Neil says.
"The essence of our constitution is one of accountability … to parliaments," he adds. We live in a parliamentary representation democracy ... parliament is in turn accountable to people. The executive’s accountability is not directly to the people."
In both his language and the themes he is exploring, O'Neil is undoubtedly giving a more flowery and evocative performance than Lord Pannick was yesterday.
"In the present case, it appears that Prime Minister’s actions in proroguing parliament has had the intent and effect of preventing parliament, impeding parliament from holding the government to account at a time when the government is taking decisions that will have institutional and irreversible consequences for our country," says O'Neil.
"That fundamentally alters the balance of our constitution … this at this time can not be a lawful use of the power of prorogation."
German Chancellor Angela Merkel spoke about Brexit during a news conference with Serbian Prime Minister Ana Brnabic in Berlin Wednesday.
Asked by a journalist whether she saw relations with Great Britain as “poisoned," Merkel said: “I do not see this (goal) as endangered and I will continue to follow the same principles of behavior that we wish to be in friendship with the United Kingdom and a very close security and foreign political relationship, and we want to conclude a good free trade agreement with each other.
“And I will say what I said during Boris Johnson's visit, that I continue to see the possibility of an orderly withdrawal, that is why there were talks with Jean-Claude Juncker. I did not believe that the visit to Luxembourg would be a solution, but it is good that there were talks," she added.
"We are also prepared for a disorderly exit, but I prefer an orderly exit with an agreement to the disorderly exit. That is not news," Merkel said.
The court is back in session and hearing from Aidan O’Neil, the lawyer representing SNP lawmaker Joanna Cherry's team. That group successfully argued in the Scottish court that the prorogation was unlawful.
O’Neil argued for a position of "distance" and "perspective" in dealing with what he referred to as "political machinations within the Westminster bubble."
He also notes "the importance of history," raising a laugh from the court by saying that the two important dates in English history are 1066 and 1966 -- the years of the Norman Conquest and England's sole World Cup success.
His point, it appears, is that this case is a landmark, one that must take into account "how our constitution has developed and will be developed." Getting deep into his historiography, he then argues for a "longue durée" approach -- referring to the Annales School of historians' belief that history writing should focus on long-term, slowly developing themes rather than micro events.
"The rule of law matters, with respect for four judiciaries, the histories and the perspectives," he notes.
"Macbeth," George Orwell, Oliver Cromwell and the carpet pattern in the Supreme Court building also get mentions in O'Neil's meandering but colorful remarks.
He is yet to get to the thrust of his argument, but is stressing the unity of judicial traditions in England, Scotland, Northern Ireland and Wales -- and entertaining the court at the same time.
James Eadie has wrapped up the government's case, and the court has taken a break for lunch.
They'll be back at 2 p.m. (9 a.m. ET) to hear Aidan O'Neill make the case for the group led by SNP lawmaker Joanna Cherry, arguing that the suspension was unlawful.
In the meantime, you have just under an hour to grab a sandwich and put the kettle on.