A REMAINER lawyer said Boris Johnson can’t be trusted not to engage in “low, dishonest, dirty tricks” as he battled the government at the Supreme Court.
Aidan O’Neill told the 11 justices that No10’s documents on the Parliament shutdown should not be taken as the “complete truth”.
He added that their reasons behind proroguing should not be believed as “gospel”.
Mr O’Neill represents a cross party group of 70 MPs and anti-Brexit activists who won an appeal at the Court of Session in Edinburgh – with judges decided the PM’s shutdown was “unlawful”.
But a High Court judge dismissed a similar challenge by Remainer lawyer Gina Miller and Sir John Major – leading to the case being brought to the Supreme Court this week.
Mr O’Neill made the comments after telling the court about a memo sent to the PM, by his adviser Nikki da Costa, proposing the shutdown, on August 15.
In the reply, the following day, Boris said: “The whole September session is a rigmarole introduced by girly swot Cameron to show the public that MPs were earning their crust.
“I don’t see anything especially shocking about this prorogation.
“As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few.”
Mr O’Neill then alleged the memo could have been written so there was “cover” in case such documents were called for by a court.
When judge Lord Reed said he was “sceptical about that suggestion”, Mr O’Neill replied: “One might not think that a government would engage solely in high politics as opposed to low, dishonest, dirty tricks.
“But I’m not sure we can assume that of this government, given the attitude that has been taken publicly by its advisers and by the prime minister himself to the notion of rule of law.
“So look perturbed, look upset, but don’t look sceptical. Look at the documentation.”
Mr O’Neill’s scathing attack on the PM came after one of the Supreme Court judges asked Boris’ lawyer what would happen if he decided to “prorogue for a year”.
Lord Kerr took the government to task after the government’s QC said Boris’ move was “inherently political” and not capable of being decided by court.
The top judge retorted: “what if a Prime Minister wanted to stifle debate by proroguing for one year?”
No10’s QC Sir James Eadie replied that the court must be “very careful” about establishing principles by “testing them against extreme circumstances.”
Opening the government’s argument this morning, Sir James told the court that the shutdown had the potential to “undermine” Parliament’s ability to scrutinise those in power.
But added: “Despite those features, this is a well-established constitutional function, to be exercised by the executive’.
He continued: “They will involve considerations about how most effectively and efficiently to manage the conduct of the Government’s business, including specifically its legislative agenda in Parliament.
Parliament has been considering Brexit for months and years. It has had the opportunity to make whatever legislative provisions it has wished over that period
Sir James Eadie
“(The issue is) whether it is appropriate for those controls to be exercised by the courts as opposed to Parliament. My submission is that these are political judgments.”
Boris and his Cabinet have insisted the decision to suspend Parliament was to provide a break that would pave the way for a Queen’s Speech on October 14 and a new domestic agenda.
But Miller, Sir John Major and their legal team, claim that the PM made the dramatic move to avoid scrutiny over Brexit and possibly push through No Deal.
Sir James told the court today: “Parliament has been considering Brexit for months and years.
“It has had the opportunity to make whatever legislative provisions it has wished over that period and it has, in fact, made a plethora of legislative provisions – including and starting with the authorisation of the giving of the Article 50 notice.”
Sir James also said Parliament had the opportunity to pass a no confidence vote in the government, adding it is “always there as the ultimate controlled nuclear weapon”.
Lord Wilson asked Sir James why no statement had been provided to explain why the prorogation decision was taken.
He said: “Isn’t it odd that nobody has signed a witness statement to say ‘this is true, these are the true reasons for what was done’?”
Isn’t it odd that nobody has signed a witness statement to say ‘this is true, these are the true reasons for what was done’?
Sir James replied: “My lord, we have the witness statements we have.
“My submission is that, in light of the case law only, it remains open to the court to make judgments on the facts on the basis of the underlying documents that have been produced.”
Sir James said the documents provided to the court were from the “top level” of Government and included a note of cabinet discussions on prorogation.
Lord Carnwath asked whether it was usual in cases involving the Government for a minister to give a witness statement.
Sir James replied: “I have never been involved in a judicial review in which the minister who made the decision has actually given a witness statement.”
He also said that had an application been made by Miller’s legal team to cross-examine Mr Johnson, it would have been “resisted like fury”.
Mr O’Neill said the amount of time lost by the shutdown was not relevant.
Mr O’Neill added that it was the principle of the move that made its consequences serious because it stops Parliament from holding the government “politically to account”.
He told the court: “It appears that the prime minister’s actions in proroguing parliament has had the intent and effect of preventing parliament, impeding parliament, from holding the government politically to account at a time when the government is taking decisions which will have constitutional and irreversible impacts on our country.”
Earlier today Remainer lawyer Gina Miller was flanked by bodyguards as she arrived at the Supreme Court for the second day of her showdown with the PM.
Yesterday The PM’s top QC insisted it was not for the highest court in the country to rule on whether he was right or wrong to suspend Parliament.
Lord Keen said the court would be guilty of “intrusion” in ruling on something that was “political convention”.
And he stormed: “The courts are not to cross the boundaries and intrude upon the proceedings of Parliament.”
It came at the start of an unprecedented three-day hearing that senior Tories fear could even force Mr Johnson to quit if it rules he misled the Queen when asking to suspend Parliament.
The court is hearing appeals from two separate cases brought in England and Scotland against the suspension which threaten to shake Westminster to its foundations.
Campaigners claim he froze Parliament to try and force through a No Deal Brexit – and silence ‘Remainers’.
Supreme Court President Lady Hale had opened the proceedings by insisting the justices would ignore “political” issues – and focus on the legality of the decision to prorogue.
But Lord Pannick, for Miller, yesterday accused the PM’s prime motive was “to silence Parliament … because he sees Parliament as an obstacle to the furtherance of his political aims”.
And he insisted the PM’s extended suspension of debate was carried out for “improper purpose” to “avoid the risk of Parliament undermining the policies of his executive”.
He also accused the PM of running scared by refusing to provide a written statement to the court defending his decision.
He said documents before the court and Mr Johnson’s public statements were “at best from the Prime Minister’s view ambiguous”.
Lord Pannick said: “The legal consequences of such a witness statement would have been, almost inevitably, an application to cross examine.
“The legal consequences would be that it would be a contempt of court, of course, for such a witness statement not to tell the truth.”
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.
But Lord Keen hit back at correspondence between the Government and Gina Miller’s legal team had explained the reason for ‘prorogation’ – and included Cabinet papers.
And he insisted that Parliament had been suspended for clear political reasons three times in the past century – 1914, 1930 and 1948 – without any intervention from courts.
Documents released in the Scottish court case earlier this month revealed Ms da Costa proroguement plan would begin on September 9.
Downing Street only revealed the move at the end of the month.
Referring to Ms Da Costa’s memo, Lord Keen pointed out that Parliament had only lost “seven sitting days” on top of the usual mini-holiday for party conference season.
And he said that Ms Da Costa’s note that it would be impossible to bring MPs back on October 7 because of the SNP’s annual meeting with members proved the Government had looked at ending ‘prorogation’ on an earlier date.
Lord Keen added that MPs were fully aware the House could be suspended because they tried to amend legislation in Northern Ireland to ensure MPs could sit throughout September and early October.
The QC – the PM’s Advocate General for Scotland – insisted the PM would “take all necessary steps to comply with any declaration” made by the court when it passes its judgement.
But he stopped short of saying whether the PM – the “decision maker” – would immediately recall MPs.
No Prime Minister has abused his powers in the manner that we allege in the last 50 years, that is back to the development of modern principles of judicial review.
And he refused to rule out the prospect of a second prorogation. Challenged by the justices, he said: “I’m not in a position to comment on that at all.”
Earlier yesterday, Justice Secretary Robert Buckland also declined to comment on the idea of a second prorogation.
But he contradicted Foreign Secretary Dominic Raab by insisting the Government had not found a ‘loophole’ anti-No Deal legislation MPs believe will force Mr Johnston to extend Brexit beyond October 31.
He told Sky: “It forces the British government to accept an extension if we are offered one.”
Several hundred people massed outside the hearing, including veteran broadcaster David Dimbleby, 40 anti-Brexit demonstrators chanting “save our democracy, stop the coup and a man dressed as Robocop.
Charlie Rome, 35, was dressed as RoboCop — handcuffing the Hulk wearing a blond “Boris” wig after the PM had compared Britain to the superhero throwing off the shackles of the EU.
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He said: “Robocop, he stood for the rule of law in a kind of dystopian future where there was corruption rife across the police and the corporations. I think it’s quite fitting at this quite worrying juncture in our parliamentary democracy.”
‘Remain’ campaigner Gina Miller left the courtroom to cheers – and boos – and was branded a “traitor” by pro-Brexit campaigners.
A single pro-Brexit supporter shouting “we voted to Leave” was ushered away from anti-Brexit protesters. As he walked away, the man shouted “we want our country back”.
The hearing continues tomorrow.
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