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Johnson’s Strategy Goes to U.K.’s Top Judges: Brexit Update

By Bloomberg 17 September 2019
Caption
A protester dressed as the comic-book character the Incredible Hulk stands outside at the Supreme Court in London, U.K., on Tuesday, Sept. 17, 2019. Fresh from being lambasted by a fellow European leader after he opted out of a joint news conference Monday, U.K. Prime Minister Boris Johnson will see his decision to suspend Parliament under scrutiny in the first of three days of hearings at court. Photographer: Simon Dawson/Bloomberg

Boris Johnson’s decision to suspend Parliament is under scrutiny in the Supreme Court. It’s a landmark case that not only threatens to undermine his position as prime minister, but could also force him to recall the legislature -- giving opponents of a no-deal Brexit more time to pass laws directing when or how the U.K. leaves the European Union. Johnson told a cabinet meeting he’s “confident” of the government’s legal arguments.

Boris Johnson’s Plan Goes to Court With EU Talks in Chaos

Johnson, who spoke to German Chancellor Angela Merkel earlier, told his senior ministers that he agreed to an intensification of Brexit talks at a meeting with European Commission President Jean-Claude Juncker on Monday, Slack said.

The prime minister “continues to believe there’s a deal to be done with the EU, but at the same time no-deal planning must continue at pace,” Slack told reporters. Technical and political talks will continue this week and the two sides will move to daily meetings “shortly,” he said.

Judge Asks If Confidence Vote Was Right Option (12:30 p.m.)
Justice Robert Reed asked whether courts should intervene, given that Parliament had the option to hold a vote of confidence in Boris Johnson’s government before the suspension but chose not to.

“Where Parliament has stayed its hand, should the Courts intervene?” Reed asked.

David Pannick, the lawyer for the anti-no-deal Brexit side, replied that the question blurred arguments related to policy and law. The issue of whether politicians chose not to call a confidence vote is irrelevant to the question of whether what Johnson did was legal, he said.

“It is no answer that there could have been a political solution,” Pannick said.

Two Judges Ask About Work Lost to Suspension (12 p.m.)
Court President Brenda Hale and Justice Robert Carnwath both ask lawyers challenging the government what legislation was dropped because of the suspension of Parliament.

“It would be of great interest to know which bills were lost in the prorogation,” Hale asked.

David Pannick, who represents Brexit opponents, said that Parliament wasn’t able to debate or ask questions of the executive during the extended break. One bill that was dropped, according to the Parliamentary Review, was divorce legislation, which might interest Justice Hale, a former family law specialist.

Pannick said that the “plain effect” of the decision was to prevent Parliament from performing its duties.

Route to the Top
What Could the Court Verdict Look Like? (11:10 a.m.)
Both the English and Scottish claimants are seeking a declaration that Prime Minister Boris Johnson’s advice to the Queen was unlawful and “null and void.”

The prime minister said in his own legal filing that he intends to abide by any declaration made by the court. But his lawyers have left some wriggle room, arguing that the Scottish court didn’t have jurisdiction to make the order in the terms that it did, they said.

Read More: To Prorogue or Not to Prorogue, Top Judges Get the Question

In response, attorneys for the Scottish claimants called the government’s argument “unsustainable nonsense.” Meanwhile Gina Miller’s lawyers want the court to overturn the prorogation order directly.

Supreme Court Defines Its Role (10:50 a.m.)
Supreme Court President Brenda Hale opened the three-day hearing by reminding the room that the role of the judges is non-political and concerned solely at bringing sense to differing opinions from lower panels.

“This is a serious and difficult question of law — amply demonstrated by the fact that three senior judges in Scotland have reached a different conclusion to three senior judges in England,” she said. “The Supreme Court exists to resolve these difficult issues.”

“The determination of this question will not determine when and how the United Kingdom will leave the European Union,” she continued.

Scottish Lawyers Prepare for Another Suspension (10:25 a.m.)
The lawyers for politicians in the Scottish challenge to Boris Johnson are already looking ahead to rumors that the prime minister might suspend Parliament again — even closer to the Brexit deadline.

“If a fresh decision is taken by the Executive to prorogue Parliament, that new decision will again be unlawful if and insofar as it is still taken for an unlawful purpose (stymieing parliamentary accountability),” lawyers said in their filing.

The Mail on Sunday newspaper reported that Johnson’s office is considering another suspension as a way of getting around a law requiring the government to seek a Brexit extension if it can’t secure a divorce deal with Brussels. After his appearance on Bloomberg Television (see 9 a.m.), Jolyon Maugham said he’d also heard that might be the case.

Lawyers File Preliminary Arguments (9:35 a.m.)
The government told judges in its preliminary filing that when Parliament meets is a political issue, noting that prorogation — effectively the suspension of the legislature — has been recognized since 1707.

The issue “is intrinsically one of high policy and politics, not law,” the government said in court filings posted on the Supreme Court website.

Lawyers for Gina Miller, the businesswoman who previously sued to force then Prime Minister Theresa May to allow Parliament to vote on a key Brexit benchmark, argued that the five-week suspension hindered lawmakers’ oversight of the executive branch during a period when “time is very much of the essence.”

The prime minister’s reasons to suspend Parliament were “infected by factors inconsistent with the concept of Parliamentary sovereignty, in particular his belief that Parliament does nothing of value at this time of year,” Miller’s lawyers said in their filing.

Maugham: Brexit Opponents Mobilizing Against PM (9:15 a.m.)
Opponents of a no-deal Brexit are discussing forming an emergency government if Prime Minister Boris Johnson tries to get around the new law demanding he seek a Brexit extension if he can’t secure a divorce deal, lawyer Jolyon Maugham said in his Bloomberg Television interview (see 9 a.m.).

Johnson has said he won’t ask for a delay to the 31 Oct. Brexit deadline, even though the Benn Act requires him to do so if he can’t negotiate a withdrawal agreement with Brussels.

“I would not be surprised to see two goes at forming an emergency government,” he said. “One led by Jeremy Corbyn, and if that were to fail — and one imagines it would — another led by a more unifying cross-party figure.”

Maugham Criticizes Johnson’s Strategy (9 a.m.)
Jolyon Maugham, a London lawyer spearheading one of the cases in front of the Supreme Court, told Bloomberg television the case has historic significance.

“Everyone who believes in democracy has to hope that I am going to succeed,” he said on Tuesday.

If the Supreme Court rules in favor of the government, a prime minister would be able to suspend Parliament for an entire electoral period, he said.

“That is an absolutely remarkable proposition that reduces parliamentary democracy to a husk,” Maugham said.

Judiciary Must Be Respected, Buckland Says (Earlier)
Justice Secretary Robert Buckland said the “robust independence” of the judiciary must be respected whatever the outcome of the Supreme Court case. Some officials questioned the impartiality of the Scottish court, which ruled that Prime Minister Boris Johnson’s suspension of Parliament was unlawful.

“We will examine the ruling very carefully and abide by the rule of law,” Buckland told the BBC on Tuesday. U.K. judges are “world class and world leading, and we must let them do their job.”

Earlier:
Boris Johnson’s Brexit Plan Goes to Court With EU Talks in Chaos
Can Boris Johnson Sell an All-Ireland Backstop to Save Brexit?
Brexit Bulletin: The Dilemma of a Deal

–With assistance from Anna Edwards and Jessica Shankleman.

To contact the reporters on this story:
Jonathan Browning in London at [email protected];
Jeremy Hodges in London at [email protected];
Thomas Penny in London at [email protected]

To contact the editors responsible for this story:
Tim Ross at [email protected]
Stuart Biggs, Anthony Aarons

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