Lady Hale: Case a ‘one off’
The FT’s Jane Croft reports:
Lady Hale, president of the Supreme Court is reading out the ruling of the court. None of the parties to the case – including the government – have seen copies of the ruling before it was read out on Tuesday.
This case is not about how Britain leaves the EU, Lady Hale said adding that the case has arisen in “circumstances never seen before” and a “one off”.
Eleven justices heard the case at the Supreme Court but only seven justices have come back to hear Lady Brenda Hale, the president of the Supreme Court, deliver the ruling. Among the seven justices are Lord Robert Reed, deputy president of the Supreme Court who will take over from Lady Hale when she retires next year.
The case has been brought by anti-Brexit campaigner Gina Miller and 70 parliamentarians who bought separate legal challenges in English and Scottish courts arguing the prorogation was unlawful.
The Supreme Court had to consider the two conflicting rulings by lower courts.
The highest court in Scotland ruled that Mr Johnson’s advice on prorogation was unlawful and “clandestine” and was aimed at stymieing parliament.
By contrast London’s High Court found that Mr Johnson’s action had not broken the law because the case was not even reviewable by the courts – non justiciable – under Britain’s unwritten constitution because it was a matter of “high policy and politics”.
Judgement imminent
The Supreme Court is announcing its judgment now. Lady Hale has begun by running through events leading up to the suspension of parliament.
Who will have won?
David Allen Green has a useful primer on the possible different outcomes:
• Non-justiciable – government win
• Justiciable but lawful – government win (though court may say “careful now”)
• Justiciable and declaration of unlawfulness – government defeat
• Above, with coercive order and/or finding of improper motive – bad government defeat
Markets await Supreme Court’s verdict
The pound was steady ahead of the judgement, recently 0.1 per cent higher against the US dollar at $1.2443.
Strategists at Rabobank said in a note to clients this morning that there is “a high degree of uncertainty” about what the court will say, but outlined how markets could greet any decision:
“The two book ends of the spectrum are: This is purely a political matter and so not the business of the court. This would be a risk-off situation as it would increase the possibility of a hard (no deal) Brexit. The suspension was unlawful and parliament therefore needs to be recalled. This would be traded in a risk-on fashion as it would indicate that the possibility of a hard Brexit had decreased.”
The pound has been trading as an indicator of the likelihood of a disorderly Brexit, and has risen nearly 2.5 per cent this month after parliament successfully passed legislation blocking no-deal.
Gina Miller arrives
Anti-Brexit campaigner Gina Miller, who is one of those bringing the challenge against the government, has arrived at the Supreme Court.
We are expecting the judgment in around 35 minutes, at 10.30am London time.
David Allen Green, the FT’s law and policy commentator, is standing by to share his analysis of the decision on this blog when it drops.
Podcast: Boris Johnson v the Supreme Court and Lib Dems v Labour
An all-star cast of FT correspondents and political commentators have put together a podcast on exactly what to expect today from the Supreme Court. They also discuss what might happen if the government loses.
Click here to listen.
Who, what, where, when?
For those just joining us now, a reminder of what is happening this morning:
The Supreme Court is set to rule in just over an hour’s time, at 10:30am, on the government’s move to prorogue parliament, considering two divergent rulings from the English and Scottish courts.
It will have to decide on two key points:
1. Whether the matter is justiciable – ie: able to be reviewed by the courts.
2. Whether the prime minister’s advice to the Queen on prorogation was lawful.
You can watch the decision live here
We will also be covering the action as it happens on this live blog, reporting the reaction from Westminster and beyond, and our correspondents will take a look ahead to where we go from here.
No evidence of criminal offences by Arron Banks and Leave.EU
Away from the Supreme Court for a moment, and the National Crime Agency has said it has found “no evidence that any criminal offences have been committed” after the Electoral Commission referred allegations against Leave.EU and businessman Arron Banks, PA reports.
Key questions facing the government
Dr Catherine Haddon, a senior fellow at the Institute for government, has put together an excellent series of posts on Twitter summing up what to watch from the judgment, which is expected in 90 minutes.
Among the key issues – you can read the full thread here – are what Boris Johnson’s government will be watching for, including whether parliament would have to be recalled and what the judgment says about the prime minister himself.
The Supreme Court is having to plug gaps in the law
The FT’s law and policy commentator David Allen Green has said the challenge to the government in this litigation was not straightforward, and that there is no obvious ‘right answer’ from a legal perspective.
In a post following last week’s proceedings, he highlighted three gaps in particular that need to be addressed before a court can intervene.
• First, there is the gap in the law. There is no direct precedent in case law, no doubt because this power has not been exercised in this way before.
• The second gap concerns the evidence and the lack of any positive account by the government as to the true reasons it sought prorogation. No minister or senior civil servant was willing to provide an explanation under pain of perjury.
• The third gap is about remedies: even if the Supreme Court holds that the issue is justiciable and that a legal wrong has occurred, it is not clear what the court could actually do to put it right.
Among these unknowns, at least there is one certainty, David points out. The court’s decision is final, from which there is no appeal.
If the court rules against the government, what happens next?
If the court declares the prime minister’s advice was unlawful and the order made by the Privy Council was null and void, what happens then?
Jane Croft writes:
Both parties – Gina Miller and the 70 parliamentarians bringing the Scottish case – believe this will allow parliament to decide when and whether to reconvene to sit and hold the government to account. Gina Miller’s barrister David Pannick QC told the Supreme Court last week that parliament could be recalled as soon as possible and even if Boris Johnson did not reconvene MPs that could be done instead by the Speaker and Lord Speaker.
Last week the UK government argued in written submissions that it was not open to the Supreme Court to quash the order of the Privy Council. If the matter were found to be justiciable then the only option is a declaration that the advice was unlawful which would remit the proroguing decision back to the government to think again. The prime minister has already said he will abide by the court’s decision and “take any necessary steps”.
The government also suggested that depending on the ruling, it would be open to Boris Johnson to prorogue parliament again provided it did so on a lawful basis.
Question 2: Was Johnson’s advice on prorogation lawful?
If the Supreme Court decides that the matter is justiciable, writes Jane Croft, the 11 justices must then go onto to determine whether the advice given by the prime minister to the Queen was lawful.
Government documents including cabinet minutes have been submitted as evidence but no sworn witness statement or statement on why prorogation was necessary was given by Boris Johnson or officials. The justices could potentially draw adverse inferences from this deciding that the motive for the parliamentary shutdown was improper.
If the Supreme Court sides with the Scottish Court’s decision, the justices may make a declaration saying the advice is unlawful. This means parliament could be recalled and Boris Johnson may have been found to have misled the Queen in his advice to her.
Much will depend on the exact wording of the ruling and on what the court decides the correct legal remedy will be. A number of the 11 justices may disagree – or dissent – from their colleagues but any ruling of the court just needs the agreement of a majority.
Both Gina Miller, the anti-Brexit campaigner, and the 70 parliamentarians bringing the Scottish case are asking the Supreme Court to make a declaration that the advice was unlawful and the order made by the Privy Council was null and void.
Question 1: Can the court decide?
The Supreme Court is due to issue its ruling at 10.30am on whether the advice on prorogation by Boris Johnson was lawful. What might the UK’s highest court do?
The FT’s Jane Croft writes:
First and foremost the Supreme Court has to decide whether the matter is justiciable – able to be reviewed by the courts – or whether it falls into the area of high policy and politics and so is outside the court’s remit under the UK’s unwritten constitution.
The court is considering two divergent rulings from the English and Scottish courts. The High Court ruled that prorogation is non reviewable by the courts whereas Scotland’s highest court took the view that not only can the courts review Boris Johnson’s advice on prorogation but also that it was unlawful.
If the Supreme Court finds the matter is non justiciable then the courts cannot consider the issue and the government wins. The prorogation of parliament continues.
If the Supreme Court decides that the matter is justiciable, the 11 justices must then go onto to determine whether the advice given by the prime minister to the Queen was lawful.
Johnson defends decision to suspend parliament
The Supreme Court’s ruling comes at a crucial moment in the Brexit process.
Speaking in New York, prime minister Boris Johnson has defended the decision to suspend parliament for five weeks at a critical juncture in the UK’s exit from the EU, and repeated that prorogation was commonplace before a new legislative session.
“We must have a Queen’s Speech to move on to the domestic priorities of British people,” he said.
Asked if he was trying to stifle scrutiny of Brexit, he said: “Donnez-moi un break.”
“What are we losing? Four of five days of parliamentary scrutiny.”
Mr Johnson refused to speculate on whether he might resign if the court indicates he misled the Queen over the prorogation.
Later on Tuesday he will set out his vision of Britain as a low-tax, more lightly regulated economy. You can read more on that from the FT’s political editor George Parker here.
A big day for UK law and politics
Good morning from soggy London. The UK Supreme Court is due to rule at 10.30am on whether the advice Boris Johnson gave the Queen on prorogation was lawful. It is a key constitutional issue that will have significant ramifications both for the government and the Brexit process.
We’ll bring you the decision as it happens and cover the fallout right here. Stay tuned.
