A lawyer for Boris Johnson says prorogation is not a matter for the courts.
Boris Johnson's decision to shut down parliament for five weeks in the run-up to the Brexit deadline on October 31 is a political issue and should not be a matter for the courts, a lawyer for the prime minister told the British Supreme Court on Wednesday.
James Eadie, a lawyer for Johnson, told 11 of the UK's most senior judges that Johnson's decision to suspend - or 'prorogue' - parliament until October 14 was a matter of "high policy" which was non-justiciable, meaning it was not something judges could rule on.
It was a matter for parliament to hold the government to account, not the courts, he said, arguing that lawmakers could hold a vote of no-confidence in the government if they wished.
Eadie spoke to judges on day two of a three-day hearing, as the Supreme Court rules on whether the prorogation of parliament is a matter for the courts, and whether it is illegal.
He cited three examples of times that parliament was prorogued by a prime minister legally, in 1914, 1930 and 1948.
Lord Wilson, one of the 11 Supreme Court judges deciding the case, asked Sir James whether there was anybody better placed to judge on whether a prorogation of parliament was illegal than them.
Lord Sales asked Sir James whether it wasn't better for the Supreme Court to decide on constitutional issues "rather than for the Queen to be sucked in?"
Sir James replied that constitutional protections exist in the political arena rather than in the courts.
It was suggested that by suspending parliament, the government had made it impossible for MPs to exercise that function. But Sir James said that parliament had time to legislate against suspension - just as it legislated against a no-deal Brexit in the Benn Act - but it chose not to.
Also on Wednesday, the court heard from Aidan O'Neill QC, who represents the Scottish National Party's Joanna Cherry and her group of MPs that appealed against Johnson's ruling. On September 11, Scottish judges agreed that Boris Johnson's suspension of parliament was unlawful.
That ruling was appealed by the government and is now being heard by 11 of the UK's 12 most senior judges.
In a speech steeped in references to British history, literature and poetry, O'Neill noted that a statue outside the building was of Oliver Cromwell, who suspended parliament "when he tired of it".
He quoted Abraham Lincoln, Rudyard Kipling and referenced Shakespeare's Macbeth and Robert Burns, as well as the Norman Conquest of 1066 and the World Cup of 1966.
Moving on to the case at hand - after being prompted to do so by the president of the court, Baroness Hale - O'Neill asked the judges to strike down the appeal by the government in order that that decision could be applied by the second appeal, brought by anti-Brexit campaigner Gina Miller.
There will also be submissions from the governments of Scotland and Wales and former Prime Minister John Major — all supporting the challenges to the government — and from a Northern Ireland campaigner who argues a no-deal Brexit would endanger the peace process there.