10.52am EDT 10:52 Keen quotes from the Scottish court judgment. He reads out this passage. Although the planned prorogation would be 34 days, the expected conference recess of three weeks would mean that only one to three days would be lost in the week commencing 9 September and four in the week commencing 7 October.
Keen quotes from the Scottish court judgment. He reads out this passage.
Although the planned prorogation would be 34 days, the expected conference recess of three weeks would mean that only one to three days would be lost in the week commencing 9 September and four in the week commencing 7 October.
That makes a total of seven days, Keen says.
But he says elsewhere in the judgment the Scottish court says the prorogation amounted to five weeks. He says the five weeks claim is wrong. This passage shows we are only talking about seven days, he says.
A judge asks why seven days were needed.
Keen does not answer the question directly. Why not one day, he suggests? He says there is no set number of days.
Keen says he does not see how the Scottish court could produce an inference of improper motive on the basis of the evidence available to it.
A judge asks why the prorogation had to last for five weeks.
Keen says that was because it covered the party conference season. He says actually only seven sitting days are being lost.
He says the Scottish court, the inner house of the court of session, made a “fundamental misunderstanding” in assessing the significance of the length of prorogation.
Another judge asks about a Spectator article written by Nikki da Costa on 29 June. It was headlined: “Will parliament be able to stop the next PM leaving without a deal?” The article refers to prorogation as a “nuclear option”. He asks Keen if he is happy for this to be taken in to account.
Keen says, when she wrote the article, she was a private individual, not director of legislative affairs at No 10.
He says the court could look at all sorts of speculation. But it should consider the evidence submitted by the government, which explains the reasons for what happened, he says. (See 3.32pm.)
Keen now quotes from what Boris Johnson said in response to what Nikki da Costa put to him in her memo. (See 3.32pm.) Johnson replied:
The whole September session is a rigmarole introduced to show the public that MPs were earning their crust. So I don’t see anything especially shocking about this proposition.
Keen says there was correspondence between the government and Gina Miller’s team about the production of documents for the court.
He says the government legal department sent a letter saying the documents it had submitted, contemporaneous documents sent to the PM, explained the thinking for prorogation.
In the letter, the government lawyers said they had nothing further to add.
He says the documents that were produced, quite exceptionally, included a cabinet minute.
He quotes from one of the documents – a memo from Nikki da Costa, director of legislative affairs, to the PM. He reads this out.
The current session is the longest since records began, and all bills announced as part of the last Queen’s speech have now received royal assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new prime minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the house returns in the autumn.
As the first week’s business in September has already been announced, I recommend dedicating the second to wash-up on bills such as R&R [restoration and renewals]. We would then prorogue sometime between the end of Monday 9th September and Thursday 12th September, allowing for the long-standing conference recess, and return on Monday 14th October with the state opening of parliament.
A judge asks if the reference to bills being carried over shows that prorogation was being considered at this point. The memo was dated 15 August.
Keen says that, at this point after such a long session, it would be normal to think of what is coming next.
Keen is now addressing what the Scottish court of session said about Boris Johnson’s motives for prorogation.
(This might be the hardest issue for him to address. The government’s claim that it had nothing to do with limiting the opportunities available to MPs to block Brexit is not widely believed.)
Keen refers to what Lord Carloway, the lord president of the court of session in Scotland, said in his judgment (pdf) about prorogation. Carloway said “decisions which are made on the basis of legitimate political considerations alone are not justiciable”.
But that raises the questions as to what political considerations are not legitimate, Keen says. He says the Scottish court did not answer this.
Back in the supreme court Lord Keen says parliament anticipated this autumn that it would be adjourned after the September sitting. That is why it passed the Benn act quickly, he suggests.
Here is my colleague Peter Walker’s story about Jo Swinson’s speech at the Lib Dem conference. Swinson is still speaking, but the text has been released to reporters in advance.
In the supreme court Keen runs through various previous examples of prorogation.
And he mentions the prorogation in 1948, which was for a party political purpose.
That prorogation took place when the Parliament Act allowed the House of Lords to block a bill for two sessions of parliament. At the time the Attlee government wanted to amend this. A bill to amend the act had already been defeated once in the Lords. According to a Commons library note (pdf), this is what happened next.
Parliament was first prorogued by commission on 13 September 1948 and a King’s speech was delivered on 14 September 1948. The Commons had ten sitting days (the Lords only five) before parliament was again prorogued by commission on 25 October 1948. A further King’s speech was made on 26 October 1948.
The period of prorogation in those instances was unusually short by the standards of the UK parliament (being just one day on both occasions). The second Parliament Act eventually received royal assent in December 1949, just over two years after it first passed second reading in the House of Commons.
Lady Hale questions this example, saying that this case involve prorogation being used to enforce the will of parliament, not to frustrate it.
At the Lib Dem conference in Bournemouth Jo Swinson has just started her leader’s speech.
There is a live feed here.
Keen says the power to prorogue parliament is not there just to allow a Queen’s speech.
He says Lord Pannick did not mention the Prorogation Act 1867.
And he says there are times when prorogation has taken place for political purposes.
PM will take ‘necessary steps’ to comply with any declaration from supreme court, court told
Keen says he will not accept that the Scottish court of session had the right to declare prorogation null and void.
For reference, this is what the Scottish court said in its summary of its judgment:
The court will accordingly make an order declaring that the prime minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.
Keen says William IV was the last monarch to prorogue parliament in person.
Now it is done by a royal commission.
He says, under the Bill of Rights, the courts do not have the right to question proceedings in parliament.
He says the Scottish court ruling saying prorogation is null and void must be rejected.
And he says the PM “will take all necessary steps to comply with any declaration of the courts”.
Lady Hale says the question of whether prorogation is actually a proceeding of parliament is a matter for the court to decide. The fact that the royal commission sits in parliament does not make it a proceeding in parliament, in terms of the Bill of Rights.
Another judge, Lord Kerr, asks what would happen if the supreme court finds against the government.
Keen says he has given “a clear undertaking that the prime minister will respond by all necessary means” to the supreme court’s decision. That would mean parliament sitting again, he implies.
Kerr goes again. But is it possible the PM could prorogue parliament again?
Keen says he is not able to answer that. That would be a decision for the PM, he suggests.
He repeats the assurance he is able to give. If the court finds that the advice of the PM to the Queen about prorogation was unlawful, “the prime minister will take the necessary steps to comply with any declaration made by it”.
From the Spectator’s James Forsyth
Keen says the Scottish court accepted that the principle of non-justiciability does apply. What is at stake is whether the decision to prorogue is justiciable.
Keen starts by saying he agrees with the inner house of the court of session about this case not hinging on any particular aspect of Scots law. He says in this case the relevant constitution law applies to the UK as a whole.
Lord Keen starts making government’s case at supreme court
Back in the supreme court the afternoon proceedings are starting.
Lord Keen QC, the advocate general for Scotland, is speaking now for the UK government. He is asking the court to reject the judgment of the inner court of Scotland’s court of session.