First Day of Court Ends With Johnson on Back Foot: Brexit Update

Jonathan Browning, Jeremy Hodges and Franz Wild
First Day of Court Ends With Johnson on Back Foot: Brexit Update

(Bloomberg) -- Follow @Brexit, sign up to our Brexit Bulletin, and tell us your Brexit story. 

The Supreme Court concluded the first of three days of hearings into Boris Johnson’s decision to suspend Parliament. 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 to force his hand.

While it’s notoriously difficult to determine how a case will turn out from judges’ questions, lawyers observing the proceedings said opponents of a so-called no-deal Brexit had the better day. During a period of intense scrutiny, a government lawyer promised to provide a written statement outlining what Johnson plans to do if he loses.

Key Developments:

The first day of hearings has ended in London. There are two more days to come, and the court has not given a date for its rulingRead profiles of the judges hereJudges press Johnson’s lawyer on what premier plans to do if he loses case; Richard Keen promises to file written answer to the courtPound reverses losses, rising as much as 0.5%How Brexit Could Unleash a U.K. Constitutional Crisis: QuickTakeLiberal Democrats leader Jo Swinson said her party would cancel Brexit on day one if elected to government

Court Ends First Day, as Questions Offer ‘Clue’ (4:30 p.m.)

The first day the Supreme Court hearing into Boris Johnson’s decision to suspend Parliament has drawn to a close. The session first saw arguments from lawyers including David Pannick representing anti-Brexit businesswoman Gina Miller, who argued that Johnson had acted unlawfully in ordering the prorogation.

In the afternoon, a government lawyer came under pressure from judges to clarify what Johnson’s position would be if he lost at the nation’s highest court. On balance, Miller’s team are likely to be slightly happier.

The questions being asked by the judges “are a clue,” trial lawyer Gavin Millar said. “I thought David Pannick got quite an easy ride this morning, which may be an indicator.”

And Robert Hazell, a constitutional law professor at University College London, said: “I think if I were the government after the first day, I think I would be feeling a bit more worried.”

On Wednesday morning, the court will hear from leading U.K. government lawyer James Eadie.

EU Open to Deal, Needs U.K. Proposals: Coveney (4:10 p.m.)

The European Union remains open to a Brexit deal, but is still waiting on written proposals from the U.K., Irish Foreign Minister Simon Coveney told reporters in Dublin on Tuesday.

Coveney reiterated that Ireland won’t sign up for permanent checks on the border between the Irish Republic and Northern Ireland after Brexit, but added he didn’t think checks would be needed close to the frontier anyway. That differs from Irish Prime Minister Leo Varadkar’s warning earlier this month that some form of checks near the border could be needed.

Swinson Pledges ‘Brighter’ No-Brexit Future (3:25 p.m.)

Jo Swinson ended a polished first leader’s speech to the Liberal Democrat party conference with a pledge to “change our politics, stop Brexit, and win a brighter future.”

“We cannot be satisfied with a place on the fringes of British politics, narrow and pure, small and irrelevant,” Swinson said of her party, which currently has just 18 MPs out of 650. “We can defeat nationalism and populism.”

The speech drew sustained applause, and was peppered with ovations when Swinson delivered lines on standing to be prime minister, and saying that being a woman isn’t a weakness -- a reference to Boris Johnson’s past references to people as a “big girl’s blouse” and a “girly swot.”

Her policy initiatives stretched beyond Brexit, with measures to protect the climate and wider environment, to increase youth services and to broaden government priorities beyond boosting GDP and encompass the wider wellbeing of society.

Judges Quickly Turn on Government Lawyer (2:45 p.m.)

Several Supreme Court justices quickly turned on the lawyer for the government in the case over Boris Johnson’s decision to suspend Parliament, demanding a clearer explanation of what the premier would do if he lost.

Justice Brian Kerr went further, pushing to discover if Johnson would recall lawmakers or attempt to suspend the legislature again.

“Can we take it that he wouldn’t prorogue Parliament again,” Kerr asked.

Richard Keen, a lawyer for the government, said that Johnson would abide by the ruling, but stopped short of saying that Parliament would immediately be recalled.

“If this court finds that the advice of the prime minister was unlawful, the prime minister will take all necessary steps to comply with any declaration made by the court, and that is the appropriate way that this matter should be addressed,” Keen said.

Keen promised the court he would get a written answer on what the prime minister would do if he lost the case.

Lib Dems Would Cancel Brexit on Day 1 (2:40 p.m.)

The Liberal Democrats will cancel Brexit on day one of a new government if they win a majority in the next general election, leader Jo Swinson said in her speech at the party conference in Bournemouth.

Swinson also compared Prime Minister Boris Johnson to a “socialist dictator” for overriding constitutional norms, and said opposition Labour Party leader Jeremy Corbyn “is Brexit by nature,” according to text of the speech handed to journalists before her speech.

There are also new party policies in her speech: The Liberal Democrats will push introduce a New Zealand-style “wellbeing budget” alongside annual budgets, and make sure that every new government policy has an assessment on its impact of people’s health, welfare and happiness. The party will also push green policies, she said.

More Than 4.4 Million Requests for Live Stream (2 p.m.)

The U.K. Supreme Court said its servers received more than 4.4 million requests to access the live stream for Tuesday’s hearing on the suspension of Parliament. While that doesn’t mean more than 4 million people tried to log on, the court said it’s “a good preliminary indicator of general numbers.”

Those figures don’t include viewers on TV channels including BBC and Sky, meaning the proceedings were probably the most-watched in European legal history.

Is Politics Legitimate Grounds for Suspension? (1:20 p.m.)

Justice Patrick Hodge asked if a legitimate purpose for suspending Parliament could be to “obtain a political advantage.”

The question was considered by a lower court in London earlier this month, which said even if prorogation was purely political, the issue would not be “territory in which a court can enter.”

But David Pannick, a lawyer leading the opposition to a no-deal Brexit, said the court should look at “the scrutiny of Parliament” rather than the purely political outcome.

Johnson ‘Confident’ of Legal Arguments (12:40 p.m.)

Prime Minister Boris Johnson told a cabinet meeting on Tuesday that he is “confident in our arguments” in the cases at the Supreme Court, his spokesman, James Slack, told reporters at a briefing in Westminster.

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.

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.

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 ChaosCan Boris Johnson Sell an All-Ireland Backstop to Save Brexit?Brexit Bulletin: The Dilemma of a Deal

--With assistance from Anna Edwards, Jessica Shankleman, Thomas Penny, Peter Flanagan and Alex Morales.

To contact the reporters on this story: Jonathan Browning in London at jbrowning9@bloomberg.net;Jeremy Hodges in London at jhodges17@bloomberg.net;Franz Wild in London at fwild@bloomberg.net

To contact the editors responsible for this story: Tim Ross at tross54@bloomberg.net, Stuart Biggs, Anthony Aarons

For more articles like this, please visit us at bloomberg.com

©2019 Bloomberg L.P.