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IMPORTANT: The Supreme Court has just asked one of the Prime Minister’s lawyers for clearer written undertaking about how he would abide with a decision against him…
So this is what happened: Lord Kerr - one of the longest-serving justices, began interrogating the Advocate General Lord Keen (PM’s top lawyer in Scotland) about the consequences of losing.
Lord Keen replies: "The consequence could be that he goes to the Queen and seeks the recall of Parliament.” That doesn’t satisfy Supreme Court justice Lord Kerr who then asks: "Would he prorogue Parliament again?”
Lord Keen, for the PM then says: "I won't comment on that.” Lord Carnwath - another of the justices - then says it would be “helpful” to have clearer written undertakings…
OK - there’s an important new line of attack from Lord Keen for the government - and its seeking to be a direct response to arguments submitted by Gina Miller and Joanna Cherry QC
One of the key arguments against the PM is that Boris Johnson's prorogation of Parliament for five weeks, for a presumed political purpose of evading scrutiny of his Brexit strategy is illegal because it's breaches Parliamentary sovereignty.
Their lawyers say that prorogation has to be for a sound and lawful reason - namely in this case the end of a session of Parliament before a Queen's Speech which sets out the government's new agenda.
But Lord Keen for the Prime Minister says there are examples from history of Parliament being closed down / prorogued. One from 1948 saw Parliament prorogued for just one day for "naked political reasons", he says.
Without wishing to go into the weeds of the saga, the prorogation came amid a row between the Commons and Lords. Lady Hale knows this and notes to Lord Keen that closing Parliament on that occasion enforced the will of the democratically-elected MPs.
Lord Keen, for the PM, argues that what the Supreme Court is being asked to do is "go down the road of deciding what is an illegitimate political consideration" to close Parliament. In summary: that's not a legal situation that judges can interfere in.
This morning, Lord Pannick QC, for Gina Miller, basically said that the prorogations of Parliament referred to by the government are irrelevant. His case is that no PM has ever tried what Boris Johnson has tried - it's an unprecedented situation.
Lord Keen for the PM is now arguing that Parliament entirely foresaw earlier this year it might be prorogued - but a clever step taken by MPs to force sittings does require Parliament to sit before 14 Oct (explanation to follow…)
Long story short: Parliament passed a bill in July, requiring regular reports from ministers on progress in rebooting Northern Ireland’s stalled adminstration. It was also a legal vehicle to ensure Parliament could sit and hold Boris Johnson’s government to account.
Lord Keen argues MPs had every opportunity to include measures in that Bill to prevent some lengthy prorogation - it has the power to define how long it should be closed down - but despite the opportunity in this NI law, it didn't take it.
(I’m referring here to the Northern Ireland (Executive Formation etc) Act 2019) legislation.gov.uk/ukpga/2019/22/…
And therefore, he argues, the courts cannot take for themselves powers to define when and for how long Parliament should be prorogued if Parliament has not taken the power itself to do so.
Rather curiously, Lord Keen, for the government, couldn't answer the question from one of the justices, Lord Hodge, about how the government can comply with regular NI reports to Parliament if it has been forcibly closed. He says he’ll come back on that later.
I think the best way to sum up this line of attack is “Parliament, you had your chance to stop a prorogation, that you may or may not have seen coming, but you didn’t taken it - so don’t expect the courts to sort out this right political mess."
Lord Keen is wrapping up in the coming minutes - I need to pop out to do some reporting. Other tweeters are available!
