Pannick says, if court rules prorogation unlawful, Speaker should be entitled to reconvene Commons

LORD KEEN
Lord Keen Photograph: Supreme court

Parliament may remain suspended even if Boris Johnson loses at the supreme court///AIWA! NO!/

Documents submitted to the court on his behalf on Thursday reveal three possible scenarios in the event the 11 justices conclude the prime minister’s advice to the Queen to prorogue parliament for five weeks was unlawful.

The first envisages a situation where the judges find it was unlawful, but their reasoning leaves open the possibility that parliament could be prorogued for the same length of time in a lawful manner.

The document, submitted by Sir James Eadie QC and advocate general for Scotland Lord Keen, states: “In that scenario, the court would and could not make any order purporting to require parliament to be reconvened … Parliament would remain prorogued.”

The second possible outcome is that the court could find the suspension was unlawful and that the recall of parliament before October 14 is the “only option lawfully open to the prime minister”.

In this scenario, the document states Johnson would comply with the terms of the ruling, but that it would also be “open to the court to consider whether to make a mandatory order”.

However, Johnson’s lawyers urge the court to consider the “very serious practical consequences” as the recall of parliament would require a meeting of the privy council and a new Queen’s speech.

The document continues: “A Queen’s speech, and the state opening of parliament which accompanies it, is a significant political, constitutional and ceremonial occasion, which ordinarily involves the sovereign attending in person.

“As the court will be well aware, the proper preparations for a Queen’s speech are a matter of thoroughgoing importance, including in relation to the content of that speech.

“Extensive arrangements would have to be made, including as to security, to enable this to occur.

“These considerations lead to the need for any order that the court makes, if necessary, to allow for these steps relating to the earlier meeting of parliament to occur in an orderly fashion.”

In the third possible outcome, the document states the court could rule that the prorogation was unlawful, with the effect that parliament was not prorogued and remains in session.

However, Johnson’s lawyers assert that, depending on the court’s reasoning, it may still be open to the prime minister to consider a further prorogation.

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