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.

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.”

Angela Merkel talks to reporters on Wednesday.

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.

England captain Bobby Moore lifts the World Cup in 1966.

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.

Three judges have pressed the government’s lawyer James Eadie over why no one from the government has gone on the record asserting that its position in the case is true.

Lord Wilson said the government’s documents and evidence was simply “floating around” without a witness statement saying that the purpose of the prorogation was not to stymie Parliament.

“You have the witness statement you have,” Eadie replied. “You don’t have a witness statement of the kind that you traditionally would do,” he accepted.

A second judge raised the question of whether Boris Johnson himself could have submitted an affidavit and been subject to a cross-examination.

“I’ve never been involved in a judicial review in which the minister who made a decision has actually given a witness statement.” Eadie responded. “Civil servants often do,” he acknowledges.

And then Lord Kerr picked up the same line of questioning. “There was no explanation as to why a conventional course was not followed” with regards to providing witness statements, he said.

Eadie argued that “the court can operate … on the basis of the underlying documents” that have been produced. Those documents show that the suggestion Johnson suspended Parliament in order to stymie it is “untenable,” he added.

MEPs during Wednesday's Brexit debate.

The European Parliament has voted in favor of supporting a third Article 50 extension if there was a reason to do so, a spokesman for the body tells CNN.

The vote came in at 554 in favor and 126 against, he confirmed.

The resolution lists such reasons and purposes as “to avoid a ‘no-deal exit’, to hold a general election or a referendum, to revoke Article 50, or to approve a withdrawal agreement”. It also notes that an extension would only be granted if “the work and functioning of the EU institutions is not adversely affected.”

The vote can be read as a statement of intent from the European Parliament, outlining the things it will and won’t support, as the European Commission continues negotiations with Britain on a withdrawal agreement. It was drafted by the main political parties in the Parliament.?

If it asks for one, the UK can only be granted an extension if all 27 EU member state leaders agree to it at the European Council on October 18 and 19.??

British Prime Minister Boris Johnson has said he would rather be “dead in a ditch” than ask for an extension, but a law passed this month instructs him to do just that if he cannot agree to a deal with the bloc in the coming weeks.

Other points in the resolution include a “grave concern that recent and conflicting announcements by the Home Office in relation to free movement after 31 October 2019 have generated very unhelpful uncertainty for EU citizens resident in the UK, with the risk that those announcements may exacerbate the hostile environment towards them as well as impacting negatively on their ability to enforce their rights.”

Also included is a warning that there will be no trade deal if the UK goes back on paying its estimated $50 billion “divorce bill” to the EU.

Nigel Farage speaks in the European Parliament on Wednesday.

Nigel Farage, the Brexit Party leader, told the European Parliament earlier that Luxembourg’s Prime Minister set out to “ritually humiliate” Boris Johnson on Monday, by holding a news conference next to an empty podium after the British PM refused to take part.

“I would suggest that events across Europe this week would not suggest that good faith exists,” Farage told MEPs.

Johnson’s team had wanted the presser to be moved indoors to avoid noisy anti-Brexit protesters nearby, but Luxembourg’s leader Xavier Bettel went ahead with it anyway and officials did not remove Johnson’s podium.

Xavier Bettel points to the empty podium where Boris Johnson should have been standing at Monday's news conference.

Farage continued that keeping Britain “trapped inside” the customs union was the objective of Michel Barnier from the start.

He said that the EU’s “fear” is that the EU breaks out of the customs union and single market rules and “we become more competitive and we become more much wealthier outside the European Union than within it.”

“Mr. Verhofstadt – I want no part of your European empire,” Farage said, referring to the European Parliament’s Brexit negotiator.

“The only way forward to deliver on the referendum now is a clean break Brexit, once we’ve done that with we will have a grown-up conversation about trade and about the way forward.”

Proceedings at the Supreme Court take a detour into another intriguing area: The question of how much power the Queen has on the issue of prorogation.

James Eadie is asked what the government’s position on the issue is. It’s a relevant question, one judge points out, because it gets to the heart of whether there are conventional (if not practical) checks and balances on the role of the executive in proroguing Parliament.

But Eadie won’t get drawn on the issue. He says it’s a matter of “considerable uncertainty” whether the Queen has any personal prerogative on the issue.

The barrister is also pressed on a comment by the government’s Leader of the House Jacob Rees-Mogg, who said after Parliament was suspended that the Queen was “obliged” to approve the request.

Eadie again insists that the question of whether the Queen could have said no is a matter of “academic debate and uncertainty.”

Later, Lord Sales asks: “If there are constitutional principles that are required to be policed, isn’t it more appropriate for the court to do it, rather than for the Queen to be sucked in?”

Some context: Parliament can only be prorogued if the monarch allows it. But the Queen or King must also stay above politics and act on the advice of her ministers – so when Rees-Mogg went to Balmoral to ask her to prorogue Parliament, it was a given that she would agree.

Is this an issue for the courts anyway? The government’s written case also addresses the issue, insisting that it has never taken the position that the Queen had no choice but to agree.

It also adds, however, that the question is moot – because whether or not the Queen had prerogative power is not an issue for the court.

The written case says: “Contrary to the suggestion at §8 of the Appellant’s written case, it is not (and never has been) asserted that Her Majesty enjoys no personal prerogative in this context or that she is obliged to accept the advice of the Prime Minister. However, this is not an issue which arises for determination on the present appeal. Nor is it a matter for the court. Whether Her Majesty enjoys a personal prerogative in any particular case is a question of constitutional convention, not law.”

The Government’s barrister, James Eadie is asked by Lord Reed, one of the judges, if he accepts there are limits to the government’s prerogative powers, and whether suspending Parliament has the potential to “undermine” the ability of MPs to scrutinize the executive.

He says he does – and he also agrees that it is within the “purpose and role of the courts” to look at whether those constraints on the government have been exceeded.

But he adds: “Despite those features, this is a well-established constitutional function, exercisable and to be exercised by the executive.”

He also suggests that the courts themselves must ensure they do not overstep, questioning “whether it is appropriate for those controls to be exercised by the courts” as opposed to Parliament. “My submission is that these are political judgments,” he stresses again.

James Eadie has started making the case for Boris Johnson’s government before the Supreme Court.

He began by returning straight to the issue of justiciability, which was so central to Tuesday’s proceedings. Eadie says the issue of suspending Parliament is purely up to the government, and is not something that can be ruled on by the courts.

“We are dealing with a prerogative power,” says Eadie. “It is a prerogative power that has been expressly preserved by Parliament.”

This is essentially the government’s most important and strongest point, so Eadie is laying down the gauntlet early on.

He also listed a number of previous cases which he says support his position, including the High Court’s decision earlier this month which dismissed Gina Miller’s case on the grounds of justiciability.

The court’s president, Lady Hale, interrupts to deliver a bombshell announcement: her computer isn’t working. Hale suggests she is having trouble keeping up with documents Eadie is citing (which, given the boxes stuffed with paperwork surrounding Eadie, could be an issue.)

We’ll be hearing plenty of legal jargon as day two of the Supreme Court hearing continues. Here’s a guide to a few of the key terms:

Justiciability:?Whether the court has the capability or right to make a ruling in a particular case.

Prerogative powers, or the royal prerogative:?Powers that can be exercised without the consent of Parliament. By convention, the UK monarch only ever exercises these powers on the advice of the Cabinet or the Prime Minister. The power to suspend parliament is one such prerogative power.?

The “divisional” court:?Otherwise known as the High Court. Short for the divisional court of the Queen’s bench. Commonly known as the High Court in London.

Inner/Outer House:?The two main chambers of the Court of Session – Scotland’s civil court. The Outer House hears civil cases when they first come to court. The Inner House is the appeal court, and is the highest civil?court in Scotland.

The Advocate General:?Scotland’s senior law officer – the post is currently held by Lord Keen. On Tuesday he put forward the UK government’s position in the Scottish case.

And they’re off… The second day of the Supreme Court hearing into Boris Johnson’s suspension of Parliament has begun.

First up today is the UK government’s barrister James Eadie, who is responding to the Gina Miller case.

That’s the case that the government won in London’s High Court – it found that prorogation of Parliament is a political decision, and not one that can be decided by the courts.

But Eadie will likely refer also to the Scottish case, which found the prorogation was unlawful.

Barnier at the European Parliament last week.

The Supreme Court in London will soon begin scrutinizing Boris Johnson’s suspension of Parliament for a second day – but in Brussels, a European Parliament debate into Brexit is already well underway.

The EU’s chief negotiator Michel Barnier warned MEPs of the “considerable” impact of a no-deal Brexit, and stressed that the ball is in the UK’s court to avoid such an outcome.

“I think we need to move forward with determination, we need to do so with ongoing co-operation and transparency,” he said.

“The position of the European Union has never been an ideological one. It has always been a pragmatic one,” Barnier added.

On the Northern Irish backstop question, Barnier said: “The new UK Government this week in Luxembourg outlined the aspects of the backstop they don’t like. That is not enough, however, to move towards achieving a solution.”

“We need a legally operative solution in the Withdrawal Agreement which addresses each one of the risks created by Brexit,” he added.

Boris Johnson and Juncker in Luxembourg on Monday.

European Commission President Jean Claude-Juncker has warned that time is running out to avoid a no-deal Brexit.

Juncker told lawmakers at the European Parliament in Strasbourg on Wednesday that talks with British Prime Minister Boris Johnson in Luxembourg earlier this week had gone well, but said Johnson had reiterated the British position that it planned to leave the EU on October 31 with or without a deal. ?

A deal remains “desirable and is still, in my view, possible,” Juncker said – but the main sticking point remains the Northern Ireland backstop.

Juncker said the EU was open to alternatives to the backstop, as long as they had the same effect – preserving peace by avoiding a hard border, protecting the integrity of the single market and safeguarding the all-Ireland economy.?

“The Commission is prepared to work day in, day out, morning until night – with a few breaks – to try to find the technical and political solutions we need but I am not sure that we will get there,” he said.

“There is very little time remaining but what I do know is that we have to keep trying.”

Juncker said the UK still had not presented written proposals on alternatives to the backstop, and he called on the UK to “come forward with operational solutions.”

The UK Supreme Court is sitting for a second day to consider whether Prime Minister Boris Johnson acted unlawfully in advising the Queen to suspend, or “prorogue,” Parliament for more than a month.

A reminder: Eleven justices sitting in London must rule on two competing rulings – one from Scotland’s highest civil court, and one from the high court in London, which has jurisdiction in England and Wales. They are also considering a third case from Northern Ireland.

What happened yesterday? The main question addressed by both sets of lawyers on Tuesday was on the issue of of “justiciability” – whether the court or Parliament has the right to make a decision on prorogation.

When will there be a decision? The Supreme Court has set aside three days for legal debate and argument. The earliest the judges could give their decision, therefore, would be Thursday afternoon. It seems much more likely that a ruling would come on Friday or even early next week, given the complexity of the arguments and importance of the decision.