Nikki da Costa, the head of legislative affairs, outlined plans to prorogue parliament for five weeks between September 9 and October 14. Prorogation usually lasted less than a week, two at the most. What followed was seen by critics as the greatest act of constitutional vandalism since Charles I sent soldiers to arrest five members of the Long Parliament. Allies believed it was the signature act of a leader who had to take bold decisions to defend and uphold, at all costs, the outcome of a democratic vote, the 2016 EU referendum. Perhaps it was both.
‘Very unwise indeed’
Geoffrey Cox was not invited to the Chevening summit, but the attorney-general had already given Johnson his view on prorogation in July, warning that it might lead to a legal challenge in the Supreme Court. Politically, the AG felt that prorogation “is very unwise indeed” but that equally, “It would be unwise of a court to interfere.” However, Cox had appeared as a barrister in front of Brenda Hale, the president of the Supreme Court. He regarded her as an activist judge. The attorney-general texted the prime minister: “With this Supreme Court, we cannot be confident that it would not interfere.”
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On August 13, Cox was invited to a fish supper in Johnson’s Downing Street flat for another off-the-books discussion about prorogation.
“In my view, it is lawful,” he said. “But I must warn you, prime minister, that with this Supreme Court … I simply cannot rule out the real litigation risk that we would be incurring.”
He said that if Johnson was determined to take the idea forward, “You should instruct me formally.” That meant sending a written brief asking for his views.
The following day, August 14, Cox was formally instructed, but not on whether a five-week prorogation was lawful or justiciable, only on a narrow point, whether it was compatible with legislation in Northern Ireland. Cox advised in writing that it did not prevent prorogation. But in his final paragraph, he repeated his warning: “You must be aware that there are a broader range of issues affecting this question … The appetite of the Supreme Court to intervene will depend on the context.”
This was Johnson’s third warning. He ignored it. Cox heard nothing more.
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