The legality of Boris Johnson’s decision to suspend Parliament is being examined by 11 judges in the Supreme Court this week.
The opening arguments have begun today, with the case expected to run until Thursday.
The number of judges hearing the case was increased from nine last week in a decision that highlights “its constitutional significance and may indicate how finely balanced the arguments are considered to be”, says The Guardian.
The newspaper explains that one of the many difficulties the Supreme Court will face is “how to reconcile differences between English, Scottish and Northern Ireland laws”.
Scotland’s highest civil court ruled the suspension unlawful last week, but – in a “diametrically opposed ruling” – London’s High Court backed the government, reports The Telegraph.
The main claimant in the English case is pro-EU businesswoman Gina Miller, while the Scottish case was brought by a cross-party group of more than 70 MPs led by SNP politician Joanna Cherry QC. Former prime minister John Major and Labour’s shadow attorney-general Shami Chakrabarti have also been given permission to take part in the case against the Government.
Johnson will be represented by several lawyers, with a date for the judgment yet to be confirmed.
The PM has said he has the “greatest respect for the judiciary” and will “wait and see what the judges say” before deciding whether to recall Parliament.
So what is his defence?
Political issue
The written case for the PM argues that the length of Parliament’s prorogation is “intrinsically one of high policy and politics, not law”.
For reasons of “constitutional propriety”, prorogation is up to the government, subject to control by MPs through legislation, and not the courts, say Johnson’s lawyers.
They note that Parliament has “expressly preserved” the right for prorogation in law. Therefore, court interference would be a “negation, rather than an affirmation, of parliamentary sovereignty”.
The High Court of England and Wales agreed with that stance in a ruling earlier this month, saying the issue was “political” and therefore a “non-justiciable exercise of prerogative power”.
“It is not a matter for the courts,” said the High Court judges.
However, Scotland’s Court of Session thought otherwise. Lawyers for the SNP’s Cherry say the justification for suspending Parliament must be “subject to anxious scrutiny” by the courts “precisely because Parliament has no say as to when, how, and for what period the executive might choose to suspend or close down Parliament”.
Miller argues that if Johnson wins the case, the courts would have no power in the future to stop a prime minister from suspending Parliament for a year or longer, irrespective of their motives.
This would be incompatible with the rule of law and the basic principle that “the executive is answerable to Parliament and not vice versa”, according to Miller’s written submission.
Timing
“While the act of prorogation, which tees up a Queen’s Speech to introduce a new legislative period, is not controversial in itself, opponents have said the timing in the run-up to the Brexit deadline has been used to shut out MPs,” says PoliticsHome.
Miller’s team insists “time is very much of the essence” in light of the Brexit deadline of 31 October.
Johnson’s legal team says Parliament has still had time to sit, before 9 September and after 14 October, and could use those periods “for any purpose, including legislating at pace, if it wishes”.
“Recent events could not more graphically illustrate that fact,” they say, referring to a new law enacted before prorogation began that forces the PM to accept an extenstion of Article 50 if no Brexit deal is agreed.
Motivation
Johnson’s team insists the reasons for his prorogation were “neither irrelevant nor illegitimate”.
They repeat that the Government wanted time to effectively set out its new legislative agenda in a Queen’s Speech, and to end the “extraordinarily long previous Parliamentary session in a practical way”.
The written case for Miller argues that no “rational reason” has been given for the length of prorogration, which is the longest in 40 years, and urges the judges to consider the general public law on abuses of power.
Cherry accuses the PM of using the power “in bad faith”. Internal government documents have revealed Johnson’s reasons for the suspension to be “simply untrue”, calling into question the lawfulness of the action, say her lawyers.
Indeed, the Scottish court ruled that Parliament was prorogued to “stymie Parliamentary scrutiny of the executive regarding Brexit”.
Johnson’s opponents insist that the Government must be accountable to Parliament, which was elected by the public and is therefore accountable to the people.
Cherry’s lawyers say: “To claim otherwise is not to uphold democracy in this country, but to attempt to establish populism.”
