10 things to know about Supreme Court case against government

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If you have been too busy to follow the proceedings of the Supreme Court, where it is being decided whether Boris Johnson’s suspension of parliament was legal, here are 10 things worth knowing:

1. This is a unique case. It is a real test of our unwritten constitution, examining in precise detail the scope of parliament’s sovereignty and the balance of power between parliament, government and the courts: a forensic scrutiny of who answers to who.

2. The 11 Supreme Court justices have two questions to consider: is it within their powers to intervene in a dispute about the prorogation of parliament? And if the answer is yes, has Boris Johnson acted unlawfully?

3. Those against proroguing say the five-week suspension is unlawful because it prevents parliament from being able to scrutinise government – particularly regarding Brexit. They say it is politically motivated, and intended purely to prevent MPs from interfering with the prime minister’s plans.

4. Lord Pannick QC, acting for Gina Miller against the government, said the suspension was for a period of “exceptional length”, for “no rational reason” and had come at a “vital time”. And these are the circumstances under which the justices must decide whether the PM’s decision was lawful.

5. The government argues that this is political matter and “forbidden territory” for the courts. It also says there are no judicial standards – that is no rules about proroguing – and so again this is not something the courts can get involved with. At any rate, they argue that MPs could always have moved a motion of no confidence.

Lord Garnier QC, who has been representing Sir John Major
Image: Lord Garnier QC, who has been representing Sir John Major

6. We have witnessed a former Conservative prime minister fighting the current one. Sir John Major’s lawyers compared Boris Johnson to a dodgy estate agent acting dishonestly with homeowners. Lord Garnier, on behalf of Sir John, believes that if the courts cannot step in, then what is to stop a prime minister using the power of prorogation in any circumstance and for any reason.

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7. The most emotional language came from Aiden O’Neill QC, acting on behalf of, among others, SNP MP Joanna Cherry. Within minutes he had referenced Braveheart, Macbeth and Kipling, to name but a few. He successfully argued his case in the Scottish courts last week. He told the Supreme Court: “The mother of all parliaments is being shut down by the father of all lies.”

8. Don’t mention Brexit. At least not in front of the Supreme Court justices. Ronan Lavery QC, acting on behalf of a campaigner from Northern Ireland, received a supreme slapdown when he strayed into Brexit argument. He was sharply told: “Don’t abuse our politeness, and don’t abuse Lady Hale’s (Supreme Court president) patience.” Repeated reminders were made in the three-day hearing that the case was not about how and when Brexit happens.

9. The justices will deliberate over the weekend, and said they intended to rule on the case as soon as possible. There was talk at the end of day three about potential remedies: put simply, what might happen next, which did not sound like things were going the government’s way.

10. What happens next? The justices could rule that this is not an issue they can get involved with. But if they don’t, parliament could be recalled immediately, the PM could carry on regardless, or he could try to prorogue parliament again. Either way, we are entering uncharted territory that will certainly challenge the very heart of our constitution.


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