Sept. 16, 2019. The Guardian, UK: Eleven supreme court justices will hear the politically charged claim that Boris Johnson acted unlawfully in advising the Queen to suspend parliament for five weeks in order to stifle debate over the Brexit crisis.
All but one of the judges on the UK’s highest court will be on the bench on Tuesday when the case opens. The hearing will be livestreamed on the supreme court website.
A decision last Friday to increase the number of judges from nine to 11 signifies its constitutional significance and may indicate how finely balanced the arguments are considered to be.
It is the first time the supreme court has been summoned for an emergency hearing outside legal term-time and only the second occasion for such judicial mass mobilisation – a similar number of judges sat in 2016 for the article 50 case.
Lady Hale, the first female president of the court who retires next January, will preside. Her deputy, Lord Reed, a Scottish judge, will succeed her in the new year. The only member of the 12-judge court not sitting will be Lord Briggs, a commercial law expert; the bench must have an odd number to prevent being deadlocked in a draw.
One of the many difficulties the justices face is how to reconcile differences between English, Scottish and Northern Ireland laws in the context of similar challenges against the prime minister’s proroguing of parliament. The London high court unanimously dismissed the prorogation claim while the Scottish appeal court unanimously allowed the challenge.
Three days have been allocated for legal argument and judgment could well be reserved. Due to the complexity of the hearings, the government will be represented by several QCs, among whom are Sir James Eadie, the “Treasury devil”, who appears for ministers in major litigation battles, and Lord Keen of Elie, the advocate general for Scotland and Ministry of Justice spokesperson in the Lords. Eadie will lead on the English cases, Keen on the Scottish.
A Northern Ireland prorogation claim, argued on behalf of Raymond McCord, a victims’ rights campaigner whose son was murdered by loyalist paramilitaries, will be heard on Thursday.
There was a further hearing in Belfast on Monday of appeals from other Northern Ireland cases involving claims that a no-deal Brexit and the imposition of a hard border would damage the Northern Ireland peace process. Judgment was reserved. Those involved may apply to the supreme court for a separate hearing later this month if they lose.
The main claimant in the English case is the businesswoman and legal campaigner Gina Miller. She brought the first article 50 challenge in 2016 that resulted in victory when parliament, not the government, was confirmed to have the right to authorise the UK’s departure. Her latest action is consequently known in legal circles as Miller (No 2).
She will be represented again by Lord Pannick QC, one of the leading constitutional lawyers of his generation. He will open submissions on Tuesday morning and be followed in the afternoon by Lord Keen. Both are applicants seeking to overturn judgments in London and in Edinburgh respectively.
Eadie, Pannick and Keen are all, coincidentally, in the same London chambers, Blackstone Chambers, which specialises in constitutional cases.
The Scottish legal team will be led by Aidan O’Neill QC, acting for a cross-party group of 75 MPs and peers including the SNP MP Joanna Cherry QC. Their action has been funded by Jolyon Maugham QC’s Good Law Project.
Other politicians, MPs, human rights groups and individuals have applied to intervene in the three-day hearing. Those allowed to intervene will present their claims on Thursday afternoon.
Many campaigners were disappointed to be excluded from the London high court hearing earlier this month, including a barrister, Roger Harrison, who told the Guardian he had to pay a court fee of £255 even though he was denied permission.
It is not clear whether there will be legal skirmishes over disclosure. Michael Gove, chancellor of the Duchy of Lancaster, has refused to comply with MPs’ requests for messages relating to the suspension of parliament sent by Johnson’s senior adviser, Dominic Cummings and various other aides.
Gove said it would be “singularly unfair to the named individuals”. Dominic Grieve QC, the former attorney general, told MPs last week he had information from public officials that the correspondence contained a “scandal”.
The supreme court justices who will hear the case are: Lady Hale, president; Lord Reed, deputy president; Lord Kerr; Lord Wilson; Lord Carnwath; Lord Hodge; Lady Black; Lord Lloyd-Jones; Lady Arden; Lord Kitchin; and Lord Sales.
Permission has been given for six interveners in the Gina Miller case. They are: the lord advocate for the Scottish government, Raymond McCord, the counsel general for Wales, Sir John Major, Baroness Chakrabarti, the shadow attorney general, and the Public Law Project.