Boris Johnson suspended parliament because he wished to “evade control” by MPs and avoid the risk they “would take action to frustrate the policies of his government”, lawyers for anti-Brexit campaigner Gina Miller claimed at the start of one of the highest-stakes constitutional cases ever heard in the UK.
The UK’s Supreme Court began hearing two contrasting appeals on Tuesday, including one from Ms Miller, on the issue of whether the prime minister acted lawfully in advising the Queen to prorogue parliament for five weeks. If the justices find against the UK government then Mr Johnson will have to answer the charge that he misled the monarch.
It is only the second time in the court’s 10-year history that the 11 judges have sat together and it signifies the constitutional importance of the case, which is being livestreamed to the public.
Lady Hale, president of the Supreme Court, told the hearing that both cases raised “serious and difficult questions of law”. The Supreme Court was there to decide these questions of law, she said, but not to decide political issues such as how the UK leaves the EU.
The court case exposes the strain around Britain’s partly-codified, unwritten constitution which has been built up over hundreds of years which includes political conventions and prerogative powers. The hearing will last for three days and a ruling is not expected until late this week or early next week.
The 11 justices must consider the two contrasting court rulings from London’s High Court and the highest court in Scotland, which has its own separate legal system. The Supreme Court’s decision will be binding across the UK.
Earlier this month the High Court ruled that Mr Johnson had acted lawfully in suspending parliament for five weeks in a legal challenge brought by Ms Miller, saying that the issue was “not a matter for the courts” to determine and the courts “should be slow” to intrude into such matters.
In contrast, Scotland’s highest court found last week that Mr Johnson’s actions in suspending parliament could be reviewed by the courts and were unlawful and “clandestine”, and his actions had been aimed at stymying parliamentary scrutiny of the government.
David Pannick QC, acting for Ms Miller, told the Supreme Court hearing on Tuesday that the “exceptional length” of the prorogation was “strong evidence” that Mr Johnson’s motive was “to silence parliament for that period because he sees parliament as an obstacle to the furtherance of his political aims.”
He added that no prime minister had “abused his powers” in such a way during the past 50 years.
Lord Pannick also noted that Mr Johnson had not submitted a signed witness statement to the court responding to the allegations that he had an “improper” motive in suspending parliament.
Mr Johnson has argued that prorogation is necessary so that new legislation can be presented in a Queen’s Speech on October 14. The government is arguing that the High Court decision was correct and the Scottish ruling should be overturned. Mr Johnson told the BBC in an interview on Monday that he will “wait and see what the judges say” before deciding whether to recall parliament.
A key battleground is whether the Supreme Court decides that the case is justiciable — able to be reviewed by the courts — or whether prorogation falls into a “forbidden area” of high policy and politics where the courts do not tread under the UK’s unwritten constitution.
The High Court ruled that Ms Miller’s legal challenge over prorogation was non-justiciable.
However, in his written arguments to the Supreme Court, Lord Pannick claimed that Mr Johnson’s decision should be considered by the courts because his decision to suspend parliament was “an unlawful abuse of power” and his reasons “were infected by factors inconsistent with the concept of parliamentary sovereignty” and is “incompatible with the rule of law”.
Aidan O’Neill QC, barrister for Joanna Cherry and 70 parliamentarians who are bringing the Scottish case, claimed in his written arguments that the Scottish court decision was correct and the reasons for the government’s motives in prorogation should be examined by the courts. “It is an administrative power that has, in this case been used abusively by the executive” which “falls squarely” within the court’s remit. He argued that English law should be “brought up to the standards by which the executive is called to account under Scots law”.
As well as the two cases, the Supreme Court will also hear supporting arguments this week by interveners including the Scottish and Welsh governments, Belfast victims campaigner Raymond McCord and former Tory prime minister John Major.
The latest hearing has generated huge public interest, with a full public gallery and around a hundred protesters outside the court.
The case continues.