Boris Johnson will recall Parliament if the Government loses the case against Miller
He refused to rule out Mr Johnson requesting a second suspension in such circumstances, however. Lord Keen made his remark during the first day of the Supreme Court hearing of two claims from pro-Brussels campaigners that the Prime Minister broke the law by using the “prorogation” procedure to lengthen Parliament’s traditional break for the conference season. Lawyers for the campaigners allege the action was taken to “silence” debate about the possibility of a no-deal Brexit. Any ruling against the Government would have explosive consequences for Mr Johnson’s drive to get the UK out of the EU by October 31.
Lord Keen made his remark during the first day of the Supreme Court hearing of two claims from pro-Brussels campaigners that the Prime Minister broke the law by using the “prorogation” procedure to lengthen Parliament’s traditional break for the conference season.
Lawyers for the campaigners allege the action was taken to “silence” debate about the possibility of a no-deal Brexit.
Any ruling against the Government would have explosive consequences for Mr Johnson’s drive to get the UK out of the EU by October 31.
During yesterday’s hearing, one of the 11 senior judges hearing the case asked Lord Keen what would happen if the court ruled the prorogation was illegal.
His Lordship, who holds the post of Advocate General for Scotland, replied: “It will be then for the Prime Minister to address the consequences of that declaration.”
Lord Keen added: “I have given a very clear undertaking that the Prime Minister will respond by all necessary means to any declaration that the prorogation was effected by any unlawful advice that he may have given.”
Asked if it could be taken that the prorogation decision could not be made a second time, Lord Keen replied: “I’m not in a position to comment on that.
“That will have to be addressed by the decision maker.”
Lord Keen QC is representing the Government
Lord Keen added: “If the court finds it was unlawful, the Prime Minister will take the necessary steps to comply with any declaration made by the court.”
The lawyer, who is the chief legal adviser to the UK Government on Scottish law, is challenging a ruling of the Inner House of the Court of Session in Edinburgh last week that Mr Johnson’s advice to the Queen was unlawful because it was “motivated by the improper purpose of stymying Parliament”.
Setting out the Government’s case, Lord Keen yesterday argued that the judiciary should not be interfering in parliamentary procedure.
He said the courts “must not cross the boundaries and intrude upon the business of Parliament”.
He also pointed out that the prorogation would only cut “seven sitting days” because Parliament would have been in recess for almost five weeks for the party conferences.
Gina Miller is taking the Government to court… again
Lord Keen said: “It is quite plain that the Inner House, in addressing this issue and deciding that it could impugn the decision of the Prime Minister, was proceeding upon a fundamental misconception about how Parliament works.”
The Advocate General’s case is being heard alongside an appeal by campaigner Gina Miller, who is challenging a ruling of the High Court in London which concluded that the length of the prorogation was “purely political” and not a matter for the courts.
During the hearing, Mrs Miller’s barrister Lord Pannick QC told the judges: “The exceptional length of the prorogation, in this case, is strong evidence that the Prime Minister’s motive was to silence Parliament for that period because he sees Parliament as an obstacle to the furtherance of his political aims.”
He also said it was a “remarkable feature” of the proceedings that Mr Johnson has not provided a statement explaining why he advised the Queen to suspend Parliament for the “exceptionally long period”.
Former prime minister Sir John Major, shadow attorney general Baroness Chakrabarti and the Scottish and Welsh governments – who supported Mrs Miller’s High Court challenge – are all interveners in the Supreme Court case.
Mr Johnson advised the Queen on August 28 to prorogue Parliament until October 14.
He said the decision was taken to pave the way for a new Queen’s Speech programme setting out his new Government’s legislative programme.
Campaigners behind the legal action claim his decision was made to curb parliamentary scrutiny of his Brexit plans.
The court will hear further submissions today and tomorrow, with a ruling not expected until next week at the earliest.
A crowd of about 40 protesters, holding signs saying “Defend democracy”, “Reopen Parliament” and “They misled the Queen”, remained outside the Supreme Court throughout the hearing.
A smaller number of pro-Brexit demonstrators, including one who shouted “traitor” at Mrs Miller as she left court, also gathered outside the historic building on Parliament Square.
Lawyers for the Prime Minister will outline his case that his advice on the suspension was lawful today.