If the court rules against the government, what happens next?
If the court declares the prime minister’s advice was unlawful and the order made by the Privy Council was null and void, what happens then?
Jane Croft writes:
Both parties – Gina Miller and the 70 parliamentarians bringing the Scottish case – believe this will allow parliament to decide when and whether to reconvene to sit and hold the government to account. Gina Miller’s barrister David Pannick QC told the Supreme Court last week that parliament could be recalled as soon as possible and even if Boris Johnson did not reconvene MPs that could be done instead by the Speaker and Lord Speaker.
Last week the UK government argued in written submissions that it was not open to the Supreme Court to quash the order of the Privy Council. If the matter were found to be justiciable then the only option is a declaration that the advice was unlawful which would remit the proroguing decision back to the government to think again. The prime minister has already said he will abide by the court’s decision and “take any necessary steps”.
The government also suggested that depending on the ruling, it would be open to Boris Johnson to prorogue parliament again provided it did so on a lawful basis.
Question 2: Was Johnson’s advice on prorogation lawful?
If the Supreme Court decides that the matter is justiciable, writes Jane Croft, the 11 justices must then go onto to determine whether the advice given by the prime minister to the Queen was lawful.
Government documents including cabinet minutes have been submitted as evidence but no sworn witness statement or statement on why prorogation was necessary was given by Boris Johnson or officials. The justices could potentially draw adverse inferences from this deciding that the motive for the parliamentary shutdown was improper.
If the Supreme Court sides with the Scottish Court’s decision, the justices may make a declaration saying the advice is unlawful. This means parliament could be recalled and Boris Johnson may have been found to have misled the Queen in his advice to her.
Much will depend on the exact wording of the ruling and on what the court decides the correct legal remedy will be. A number of the 11 justices may disagree – or dissent – from their colleagues but any ruling of the court just needs the agreement of a majority.
Both Gina Miller, the anti-Brexit campaigner, and the 70 parliamentarians bringing the Scottish case are asking the Supreme Court to make a declaration that the advice was unlawful and the order made by the Privy Council was null and void.
Question 1: Can the court decide?
The Supreme Court is due to issue its ruling at 10.30am on whether the advice on prorogation by Boris Johnson was lawful. What might the UK’s highest court do?
The FT’s Jane Croft writes:
First and foremost the Supreme Court has to decide whether the matter is justiciable – able to be reviewed by the courts – or whether it falls into the area of high policy and politics and so is outside the court’s remit under the UK’s unwritten constitution.
The court is considering two divergent rulings from the English and Scottish courts. The High Court ruled that prorogation is non reviewable by the courts whereas Scotland’s highest court took the view that not only can the courts review Boris Johnson’s advice on prorogation but also it was unlawful.
If the Supreme Court finds the matter is non justiciable then the courts cannot consider the issue and the government wins. The prorogation of parliament continues.
If the Supreme Court decides that the matter is justiciable, the 11 justices must then go onto to determine whether the advice given by the prime minister to the Queen was lawful.
Johnson defends decision to suspend parliament
The Supreme Court’s ruling comes at a crucial moment in the Brexit process.
Speaking in New York, prime minister Boris Johnson has defended the decision to suspend parliament for five weeks at a critical juncture in the UK’s exit from the EU, and repeated that prorogation was commonplace before a new legislative session.
“We must have a Queen’s Speech to move on to the domestic priorities of British people,” he said.
Asked if he was trying to stifle scrutiny of Brexit, he said: “Donnez-moi un break.”
“What are we losing? Four of five days of parliamentary scrutiny.”
Mr Johnson refused to speculate on whether he might resign if the court indicates he misled the Queen over the prorogation.
Later on Tuesday he will set out his vision of Britain as a low-tax, more lightly regulated economy. You can read more on that from the FT’s political editor George Parker here.
A big day for UK law and politics
Good morning from soggy London. The UK Supreme Court is due to rule at 10.30am on whether the advice Boris Johnson gave the Queen on prorogation was lawful. It is a key constitutional issue that will have significant ramifications both for the government and the Brexit process.
We’ll bring you the decision as it happens and cover the fallout right here. Stay tuned.