The suspension of Parliament is “the territory of political judgements not legal standards”, the government’s lawyer has told the Supreme Court.
The UK’s highest court is considering the legality of Boris Johnson’s decision to suspend – or prorogue – Parliament for five weeks.
Sir James Eadie QC said such decisions were not for the court to decide on.
Critics have accused the PM of trying to stop the scrutiny of MPs in the run-up to Brexit on 31 October.
The PM suspended – or prorogued – Parliament for five weeks earlier this month, saying it would allow him to hold a Queen’s Speech on 14 October to outline his new policies.
Two cases about the prorogation are now being appealed in the court after lower courts reached conflicting judgements.
Businesswoman Gina Miller and other campaigners are appealing against a ruling by England’s High Court, which said the suspension was “purely political” and therefore “not a matter” for the judiciary.
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The government, meanwhile, is appealing a ruling by judges at Edinburgh’s Court of Session, who said the move by Mr Johnson was “unlawful” and aimed to “stymie” MPs ahead of the Brexit deadline.
Mr Johnson has insisted the decision to prorogue has nothing to do with his promise to leave the EU on 31 October, with or without a Brexit deal.
But his opponents argue he intended to suspend Parliament in order to limit their opportunities to prevent a no-deal Brexit.
Day two begins
The Supreme Court began sitting at 10:30 BST, starting with two-and-a-half hours of arguments from the government’s representative, Sir James Eadie.
He told the court that prorogation was “a well-established constitutional function exercised by the executive” and decisions about it were “squarely… within that political or high policy area”.
“Such decisions are inherently and fundamentally political in nature,” he continued, accepting that those decisions were “inevitably shot through with assessments of a political kind”, including how a government might secure its “political objectives”.
Sir James argued that Parliament had previously passed laws addressing aspects of prorogation, but said there was no law relevant to this particular case.
Therefore, he said, the courts could not intervene in the decision.
When asked about the need to uphold parliamentary sovereignty, Sir James said it was “a precious principle”, but urged caution before “that phrase is too widely or generally bandied about”.
Prorogation is carried out by the Queen on the prime minister’s advice.
Lord Sales, one of the judges, asked whether “if there are constitutional principles that are required to be policed”, it would be more appropriate for the courts to do that “rather than for the Queen to be sucked in”.
In reply, Sir James said “constitutional protections are provided in the political arena”, via measures like no-confidence motions that could unseat a prime minister.
“That’s where you find the appropriate form of control, not the courts.”
After lunch on Wednesday, Aidan O’Neill QC will make two hours of arguments on behalf of the Scottish challengers to prorogation, and against the appeal made by the government on Tuesday to overturn the ruling from Edinburgh.
What happened on day one?
Cross-party peer Lord Pannick QC spent the morning arguing on behalf of businesswoman and campaigner Gina Miller in her appeal against the English court’s ruling.
He said Mr Johnson had suspended Parliament to avoid the risk of MPs “frustrating or damaging” his Brexit plans.
Lord Pannick said he had no quarrel with a prime minister’s right to prorogue Parliament in order to present a Queen’s Speech.
But he said the “exceptional length” of this suspension was “strong evidence the prime minister’s motive was to silence Parliament because he sees Parliament as an obstacle”.
“For the executive to use a prorogative power to seek to evade control by Parliament stands the basic principles of constitutional law on their head,” he said.
The afternoon saw the Advocate General for Scotland, Lord Keen QC, arguing on behalf of the government against the ruling from the Scottish courts, which said prorogation was “unlawful”.
He said previous prorogations of Parliament – including in 1930 and 1948 – had “clearly been employed” when governments wanted to “pursue a particular political objective”, adding: “They are entitled to do so.”
And he added that if MPs did not want Parliament to be suspended, they had “adequate mechanisms” and opportunities to stop it in its tracks by passing new laws – pointing to the fact a bill to block a no-deal Brexit was passed in just two days.
But Lord Keen also assured the court that if they upheld the Scottish ruling, the prime minister would take “all necessary steps” to comply – although the peer would not comment on whether Mr Johnson might subsequently try to prorogue Parliament again.
Lady Hale, President of the Supreme Court, stressed the landmark case would have no bearing on the timing of Brexit.
She said she and her 10 colleagues would endeavour to address the “serious and difficult questions of law” raised by the case, but would not determine “wider political questions” relating to the Brexit process.
Supreme Court: Prorogation ‘a political judgement’, government says}