Supreme Court judges urged to 'stand up for democracy' in Parliament suspension hearing

SNP MP Joanna Cherry is led a group of around 75 MPs who took legal action in Edinburgh
REUTERS
Jacob Jarvis18 September 2019
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Judges ruling over the legality of Boris Johnson's decision to suspend Parliament have been urged to "stand up for democracy" in the second day of the Supreme Court hearing.

A panel of 11 justices is hearing appeals arising from separate challenges in the English and Scottish courts - in which leading judges reached differing conclusions.

Aidan O'Neill QC, representing a group of around 75 MPs and peers led by SNP MP Joanna Cherry QC, urged the judges to dismiss the Westminster Government's appeal against a ruling of the Inner House of the Court of Session in Edinburgh.

That ruling concluded the prorogation was "unlawful".

Concluding almost two hours of lively submissions, Mr O'Neill said: "Stand up for truth, stand up for reason, stand up for diversity, stand up for Parliament, stand up for democracy by dismissing this Government appeal and upholding a constitution governed by laws, not the passing whims of men.

"What we have with prorogation is the mother of parliaments closed down by the father of lies. Lies have consequences - but the truth will set us free.

"Rather than allow lies to triumph, this court should listen to the angels of its better nature and rule that this prorogation is an unlawful abuse of power of prorogation which has been entrusted to the Government.

"But this Government has shown itself unworthy of our trust as it uses the power of office to which is corrosive of the constitution and destructive of the system of parliamentary representative democracy on which our union polity is founded.

"Enough is enough. Dismiss this appeal and let them know that. This is what truth speaking to power sounds like."

Judges are hearing legal challenges to Prime Minister Boris Johnson's decision to shut down Parliament
PA

The Inner House ruled on September 11 that the Prime Minister's advice to the Queen to prorogue Parliament for five weeks was unlawful.

The reasoning stated this was because it was "motivated by the improper purpose of stymieing Parliament".

Protestors outside the Supreme Court

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At the outset of his arguments, Mr O'Neill said the Inner House had the advantage of "distance" over the High Court in London - which concluded the prorogation was not a matter for the courts in a case brought by campaigner and businesswoman Gina Miller.

He added: "What this means is that this court (the Inner House) and this appeal has had the advantage of a view from the periphery - what all this heated debate and political machinations looks like from 400 miles away, far from the fever and excitement of the nation's capital, outside the Westminster bubble."

In his written arguments to the court, Mr O'Neill said: "Parliamentary sovereignty is undoubtedly the animating principle of the UK constitution."

He added: "It is inherent in this concept of parliamentary sovereignty that the executive is subordinate to the law and is accountable to Parliament.

"The essence of the constitutional principle of accountability in our parliamentary representative democracy is that the executive is accountable to Parliament, and that Parliament is, in turn, accountable to the people.

"The executive in this country is not elected directly by the people. The executive's accountability under our constitution is therefore not directly to the people.

"To claim otherwise is not to uphold democracy in this country, but to attempt to establish populism."

He also said documents provided to the court in the Scottish proceedings contradicted Mr Johnson's public reason for proroguing Parliament, namely that it was to allow sufficient time for a new Queen's Speech.

Aidan O'Neill QC
PA

Mr O'Neill submitted that those documents - including a memo to the Prime Minister on prorogation and Mr Johnson's handwritten response - showed that "the true dominant purpose of prorogation was, as the Inner House correctly observed, to stymie parliamentary scrutiny of the executive regarding Brexit".

He added: "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."

Referring to the Government's failure to submit a witness statement or affidavit to the court, Mr O'Neill said that it could normally be assumed that the Government would not resort to "low, dishonest, dirty tricks".

However, he added: "But I'm not sure we can assume that of this Government".

Submitting that the Supreme Court did have the power to rule that Mr Johnson's decision was unlawful, Mr O'Neill said: "Once Parliament has been prorogued, the only constitutional actor left standing is the courts."

Earlier in the day, the court was told the PM did not advise the Queen to suspend Parliament for five weeks for any "improper purpose", Supreme Court justices have heard.

Sir James Eadie QC, representing the Prime Minister, told the 11-strong panel the suggestion the prorogation was intended to "stymie" Parliament ahead of Brexit is "untenable".

James Eadie QC said the suggestion the prorogation was intended to "stymie" Parliament ahead of Brexit is "untenable" (Tolga AKMEN / AFP)
AFP/Getty Images

During a series of exchanges with the judges on the second day of a historic hearing in London, the barrister also said any attempt to call Mr Johnson to give evidence in court would have been "resisted like fury" had it been made.

Sir James told the court on Wednesday: "Parliament has been considering Brexit for months and years.

"It has had the opportunity to make whatever legislative provisions it has wished over that period and it has, in fact, made a plethora of legislative provisions - including and starting with the authorisation of the giving of the Article 50 notice."

Additional reporting by PA.

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