Boris Johnson’s Parliament suspension case reaches final day in Supreme Court

Thanks for following three lengthy days of legal debate with us. As the Supreme Court judges retire to consider their verdict, we’re doing the same.

You can catch up on anything you missed below.

Boris Johnson did not rule out shutting down Parliament again if the Supreme Court finds his current prorogation was unlawful.

Speaking to reporters after the conclusion of the third day in court, Johnson demurred when he was asked to rule out a second prorogation. “I have the greatest respect for the judiciary in this country,” he responded, according to the Press Association.

“The best thing I can say at the moment whilst their deliberations are continuing is that obviously I agree very much with the Master of the Rolls and the Lord Chief Justice and others who found in our favour the other day,” he added.

“I will wait to see what transpires.”

The suggestion that Johnson could order a second prorogation was raised in the government’s submission to the court, which said that “depending on the court’s reasoning it would still either be open or not open to the prime minister to consider a further prorogation” for the same period of time.

On the state of his Brexit negotiations with the EU, Johnson said: “I don’t want to exaggerate the progress that we are making, but we are making progress.

“We need to find a way whereby the UK can come out of the EU and really be able to do things differently, not remain under the control of the EU in terms of laws and trade policy, this is the problem with the current agreement,” he added, while also saying that the UK will continue to “get ready” for a no-deal Brexit.

Plenty of observers took notice of the lengthy exchanges between Pannick and the judges at the end of the hearing, in which it appeared the justices wanted to iron out what sort of remedy they were being asked to issue.

Dinah Rose, a human rights lawyer, felt the exchanges spelled bad news for the government.

Buzzfeed reporter Hannah Al-Othman drew a similar conclusion.

Law commentator David Allen Green made a measured prediction.

Meanwhile, legal commentator and author Joshua Rozenberg anticipated a lengthy ruling in the coming days.

Lord Pannick has wrapped up his remarks. The close attention paid by the judges to how far they should go in their judgement, and whether or not they should order that Parliament be re-opened, does suggest that the government ought to feel more than a little nervous. But it’s still a fool’s game to make a prediction. Judges make their decisions on the basis of the strength of legal argument rather than the flourish with which it is delivered.

The President of the Supreme Court, Lady Hale – who for many observers has become the breakout star of the proceedings – made a short statement afterwards in which she said that the judges understand that time is of the essence, and that a ruling will be delivered early next week.

Things aren’t looking good for the government. The judges are very interested in what should happen if they rule that the government acted illegally.

Pannick says that Parliament should return as soon as possible next week, if the court rules in his favor that prorogation was unlawful.

“The remedy we seek from the courts is a declaration that the prime mister’s advice to Her Majesty was unlawful,” he says.

Pannick then says his team “would expect” that Boris Johnson “would ensure that Parliament resumes as soon as possible next week.”

Lady Hale asks whether Johnson would have to do so, and Pannick responds it would be “the appropriate way forward” – but he notes that the court would not want to get involved in those matters “unless it really has to.”

Lord Kerr then suggests in response that, if the prorogation is to be found unlawful, it doesn’t necessarily compel the prime minister to take any particular action.

Lord Reed adds that Parliament would still stand prorogued if the judges find the suspension unlawful. But Pannick respond it would be “implicit” that the prorogation would need to be reversed.

Towards the end of his remarks, Lord Keen went onto the issue of the government’s submissions of remedy – what they would do if the prorogation is ruled unlawful.

Keen argued that it should be up to the government, rather than the court, to decide what to do next, but he was questioned by a judge on that point.

He also committed the government to following the law if the judges specify what that law is in their ruling – which, as one of the judges, Lord Kerr, noted, should go without saying.

Lord Keen has re-emphasized the government’s argument that prorogation of Parliament is not a matter for the courts, warning the justices not to step into a “political minefield.”

He says the courts are ill–equipped to opine on the reasons why a prime minister had chosen to suspend Parliament. “How are those concepts to be defined and applied in this context?” he asks.

Keen also responds to the argument that proroguing Parliament has prevented the ability to hold the executive to account.

“It is a fact that for a period, prorogation will affect accountability in Parliament,” he says. “But it doesn’t affect accountability beyond Parliament” such as by the public and in the media, he suggests.

Keen also attempts to rebuke the argument that prorogation was more severe, and unnecessarily so, than a simple recess or dissolution. “Prorogation no more intrudes upon the idea of accountability than would dissolution,” he says.

And he says that, if it wanted to block prorogation, a vote of no confidence could have been called in Boris Johnson’s government – but that this was not done in September before the suspension took affect.

Pannick on the streets of London.

The Supreme Court is back in session for the final time in this three-day hearing. And in a pleasing conclusion for those who have been following every twist and turn, we’ve come full circle – the two lawyers who started proceedings on Monday will be making their final case to the judges.

First up is Lord Keen, who will be… er… eager to make a lasting impression on the judges that they should consider prorogation a political decision and not one to be ruled on in the courts.

Then Lord Pannick will bring the case to a close in his nominatively indeterminate calm fashion, arguing in favor of the Miller case that Boris Johnson acted unlawfully in shutting down Parliament.

The UK government has shared with the EU a series of “confidential technical non-papers” reflecting some the ideas that it believes can replace the Irish Border Backstop that makes up a key part of the Brexit Withdrawal Agreement.

The government didn’t reveal what any of those ideas might be publicly, but did make clear that non-papers do not reflect official government policy.

A spokesperson for the UK government said: “We will table formal written solutions when we are ready, not according to an artificial deadline, and when the EU is clear that it will engage constructively on them as a replacement for the backstop.”

British Prime Minister Boris Johnson at Downing Street on Wednesday.

The government’s submissions on remedy to the Supreme Court – which seek to clarify what the government should do if prorogation of Parliament is found unlawful – appear to have come to light on social media.

In one of the most notable passages, government lawyer James Eadie writes that if the judges find prorogation unlawful, it would mean the current session would remain in effect – in other words, Parliament would be open again.

But he adds: “However, depending on the court’s reasoning it would still either be open or not open to the prime minister to consider a further prorogation” for the same period of time – suggesting that Johnson could try again to suspend Parliament if the court’s ruling gives him the space to do so.

The documents have not been released to the media but were tweeted out by anti-Brexit activist and lawyer Jo Maugham, who is involved in the Supreme Court case.

The court has adjourned for an hour and a half. It will return at 2 p.m. (9 a.m. ET).

Antti Rinne

Meanwhile, in Brexit news outside the Supreme Court, Finish Prime Minister Antti Rinne says the UK should submit written proposals on a new Brexit deal by the end of the month.

The Finns, who hold the rotating EU presidency, say French President Emmanuel Macron supports the move.

Rinne said he and Macron agreed on Wednesday in Paris that “any proposals Britain may still wish to present should come very soon, if these are to be discussed.”

France says any new deal needs to be agreed before EU leaders meet on October 16 and 17. “Time is running out and we will not hold direct negotiations at the European Council meeting in mid-October,” a senior spokeswoman with the French presidency said.

“This is a message that has already been conveyed in meetings with Prime Minister Johnson at the end of August by German Chancellor Angela Merkel and President Macron. Chancellor Merkel had spoken of 30 days and President Macron had said the end of September,” she said.

A spokesman for the Prime Minister Boris Johnson said that the UK had shared some informal written material with the EU. The UK would submit “formal written solutions when we are ready, not according to an artificial deadline, and when the EU is clear that it will engage constructively on them as a replacement for the backstop.”

Lord Garnier is now speaking on behalf of former Prime Minister John Major.

It’s worth noting again that this is a pretty remarkable moment – a lawyer is arguing on behalf of a former Prime Minister that the incumbent, a member of the same political party, has acted unlawfully.

Garnier started by noting that the government had not submitted any witness statements.

He also notes the contrasts between dissolution and prorogation ?– the two ways in which the UK Parliament can be suspended. Dissolution comes in advance of an election, he notes, and “allows Parliament to renew its mandate from the electorate. Prorogation, by contrast, transfers power in the other direction.” In other words, prorogation silences parliament, while dissolution at least gives the electorate a voice.

On the issue of whether the courts can rule on prorogation if it is a political act, Garnier says “the question is not whether the motive is political … but whether the prorogation contravenes a legal principle.”

He adds that his client, Major, made “a clear and unambiguous allegation in evidence … that the reasons (for prorogation) set out in the documents put before the court by the Prime Minister cannot be true.”

“Where an allegation of this kind has been made, it would be normal for there at least to be some kind of witness statement,” he says.

Mike Fordham has finished the third set of remarks of the day. He was speaking on behalf of the Welsh government, but his comments were not limited simply to Wales.

He argued in favor of the Scottish ruling that the courts have the right to intervene on prorogation, a view which London’s High Court had opposed.

His remarks were well-researched and heavy on citations of previous cases.

“If not in this case, then the words ‘justiciable in principle’ are, with respect to you, empty words,” Fordham concluded.

His written submission also set out a number of his arguments in favor of the Scottish courts.

The court has been hearing from Ronan Lavery QC, who is speaking on behalf of Northern Ireland victims campaigner Raymond McCord – but it’s safe to say that Lavery has had something of a nightmare.

Lavery spent most of his time talking about the effects of a no-deal Brexit on Northern Ireland – which is decidedly not what the hearing is about.

At one point Lady Hale, the court’s President, interrupted in a somewhat exasperated tone.

That same criticism has been picked up by a number of judges, too. “The purpose of this hearing is not to rehearse the pros and cons of Brexit,” one tells Lavery.

“I’m really worried about your submissions - so many people are listening to you … and may come to entirely the wrong conclusion” about the purpose of the hearing, Lord Wilson added.

Ouch.

Lavery had told the court that “the rising tide of nationalism that we’re witnessing is poisoning the harmony of the EU states” and directly affecting Northern Ireland’s ability to function.

He then urged the judges to look at the current legal question “in a way that recognizes the impact” on Northern Ireland, and adds that the erection of a hard border in Northern Ireland after a no-deal Brexit would be “devastating.”

But it doesn’t appear that his remarks will have much of an impact on the case.

Some context: McCord’s 22-year-old son was murdered by the UVF, a loyalist paramilitary group, in Belfast in 1997. He took the government to court on the grounds that its Brexit strategy could undermine the Good Friday agreement, and lost his case, but his team was invited to make an intervention at this hearing as well.

“Many victims of the conflict in Northern Ireland are still seeking justice,” Lavery told the judges.

“My client is comfortable with his identity he has a British passport and an Irish passport” and “he believes that in this court there is commonality of purpose to determine what the rule of law is and how it should be applied,” the lawyer added.

The Scottish government’s chief legal officer James Wolffe has wrapped up his speech. (Wolffe delivered the remarks himself – he was not represented by James Mure, as we previously stated and as the Supreme Court originally advised).

Wolffe told the judges that the courts have the “competence and responsibility” to tackle constitutional questions, and that the Supreme Court has the right to make a ruling on the question of prorogation. The UK government has attempted to make the case that prorogation is a purely political matter, not one for the courts.

He also raised the point that, should the judges decide the courts have no say on prorogation, it could set an ominous precedent by allowing future governments to shut down Parliament whenever they wish.

In his written submission, Wolffe added: “It is a fundamental principle of the UK’s constitutional democracy that the executive is accountable to parliament – that the government’s policies and actions are subject to scrutiny in parliament by the elected representatives of the people.”

“That principle – the principle of responsible government – is ‘no less fundamental to our constitution’ than the legal doctrine of the sovereignty of parliament,” he added.

The third and final day of the case on Boris Johnson’s suspension of Parliament is underway. It begins with James Mure making the case of the Scottish Government against prorogation.

John Major.

Thursday’s busy Supreme Court schedule will include a remarkable and unprecedented sight: that of a former British Prime Minister making a case against the incumbent in the country’s highest court.

John Major will be represented by a lawyer and will not be speaking himself. But he has already submitted a written case to the court that accuses Boris Johnson of shutting down Parliament to stop lawmakers from interfering with the Prime Minister’s Brexit strategy.

Major himself controversially prorogued Parliament for three weeks in the run-up to the 1997 general election, a move critics claimed was motivated by his desire to stop the publication of a report about Conservative MPs accepting bribes.

Here’s a few key lines from Major’s submission.

On Johnson’s motive for suspending Parliament: “The decision was in fact substantially motivated by a desire to obstruct Parliament from interfering with the Prime Minister’s plans,” Major’s submission reads. Elsewhere, Major argues: “Somewhat strikingly, it remains genuinely unclear whether the Defendant disputes that proposition.”

On the government refusing to submit any witness statements: “It would be very straightforward for the Prime Minister or a senior official to sign a witness statement confirming (for example) that the decision had nothing to do with Brexit if that were indeed the case, and despite repeated requests nobody has been prepared to do so,” reads Major’s submission.

On whether prorogation is a political matter, or one for the courts to consider: “In modern times the power of prorogation is not in any sense a matter of “high policy,” Major’s submission argues. “Indeed, in the vast majority of cases the decision to prorogue Parliament has no political content at all. The routine and regular prorogations of the last few decades are plainly not so politically sensitive that it would be wrong for the Court even to begin to examine them.”

On Boris Johnson implying he might try to ignore a law instructing him to seek a Brexit extension if he can’t secure a deal: “In circumstances where, for example, Parliament has passed an Act requiring the Prime Minister to seek an extension of the Article 50 deadline if certain conditions are met, and the Prime Minister is on record saying that he will never in any circumstances seek such an extension, it is all the more necessary that any legal analysis must have regard to the possibility of “extreme” scenarios as well as ordinary and uncontroversial ones.”

Unlike the first two days of the case – which saw lengthy remarks from each side in both the English and Scottish cases – Thursday will be characterized by a number of shorter and snappier interventions.

At 10:30 a.m. local time (5:30 a.m. ET), there will be two oral interventions in the Cherry case – the Scottish ruling that found Boris Johnson’s government unlawfully prorogued Parliament. The first will come from the Scottish government and will last 30 minutes, and the second will come for a lawyer representing Raymond McCord. He launched a separate, unsuccessful legal challenge against prorogation in Northern Ireland, arguing a no-deal Brexit damage the peace process there. He isn’t appealing his own verdict in the Supreme Court, but has been given permission to speak as part of the Cherry case.

At 11:40 a.m. the court will hear from the Counsel General for Wales – the Welsh government’s law officer – and at 12:10 a.m. the case of former PM John Major will be made by his lawyer.

Then, after lunch, the case comes full circle as we hear again from the two lawyers who opened proceedings on Tuesday. Lord Keen will reply to the Cherry case for the UK government at 2 p.m. and Lord Pannick will make the appellants’ reply in the Miller case.

Labour leader Jeremy Corbyn.

The muddy waters of Brexit are becoming a little clearer.

Jeremy Corbyn, the leader of the official opposition Labour Party, has finally made public his position on the biggest issue facing his party and his country.

Having played a central role in the parliamentary attempts to block a no-deal Brexit, Corbyn faced the inevitable question about what he would do next.

In a newspaper article published on Wednesday, Corbyn attempted an answer of sorts. Once no deal is off the table, Labour would do everything in its power to force an early general election. The party would go to the country with a plan to hold a second referendum with a choice between a new Brexit deal, negotiated by Corbyn’s government, and remaining in the EU.

And in that referendum, what would Corbyn’s position be??In his Guardian article?on Wednesday, Corbyn indicated that he would not actually take a position. Corbyn would remain neutral, above the fray, with lawmakers and party members free to campaign as they see fit.is party members to campaign as they see fit.

“We will give the people the final say on Brexit, with the choice of a credible leave offer and remain,” he wrote.

By placing himself in the Brexit middle, Corbyn is taking a huge risk, given how divided the nation is over Brexit. Under normal circumstances, a moderate position in the center of a political debate can win over voters. But Brexit is not normal politics.

Read more of Luke McGee’s analysis here.

Good morning from London, where the landmark case into Boris Johnson’s suspension of Parliament is in its final day.

The court’s 11 judges will return for a series of interventions on Thursday, before deliberating on their all-important verdict.

We’ll even hear from a past prime minister – John Major – whose remarks will be read to the court. Major joined the case against incumbent Boris Johnson’s government and his controversial decision to suspend Parliament for five weeks.