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Biggest show in Edinburgh tommorow! Court case against Johnson Government on No Deal Brexit begins in Court of Session. Backed by 70 MPs. Arguments also relate to Scotland's constitutional place in the Union. 🍿 #EdFringe
Raring to go! Quite the team sheet for the petitioners. MPs hoping to cut off Boris Johnson’s power to prorogue Parliament for a No Deal Brexit using Scots Law. Starting soon before Lord Doherty at Court of Session, Edinburgh.
Petitioners begin with procedural requests - asks for the case to be fast-tracked to the Court of Session Inner House.
Petitioners: This is an issue of substantial importance for the country & UK as a whole. Points to tight timescale of 11 weeks till Brexit Date. Calls for court decision to not be made academic by running out of time.
Petitioners: Country faces serious implications from this issue. Courts must do their duty. This requires fast-tracking the case. UK Government is seeking delay of the proceedings.
Petitioners: UK Government Counsel did not even accept the pleading that the ‘Government is required to follow the law’ in regards Brexit proceedings.
Lord Doherty asks petitioners what legal precedent exists for fast-tracking such a case. He points to procedure of court of first instance making a report on the case issues first. Petitioners reassert right timeframe.
Doherty: Fast-tracking to Inner House of Session requires a report by the Lord Ordinary on the arguments. He asks how that is possible without having heard the arguments at this stage.
Petitioners, wryly, respond that it’s understandable to have difficulty understanding the position of the UK Government from what they have submitted. States in a judicial review, the pleading submitted are ample content for such a report.
Petitioners onto costs agreement, seeking an expenses order. Highlights public interest of the case, & fact no petitioner (parliamentarians & a campaigner) has a financial interest in the outcome of the case.
Petitioners: MPs should not have to put their personal assets into an indemnity for the costs of the case. Court expenses should not be used as a method of preventing access to justice in this issue of national importance.
Petitioners: Protective Expenses Order should be granted. Moved onto final motion - seeking an accelerated timetable, so that the case is not merely academic.
Webster rises for the respondents, on behalf of the UK Government. States opposition to fast-tracking case to next stage. Arguments have not yet been heard.
Andrew Webster QC continues for UKGov: Remitting case directly to next stage undermines the status of the Court of Session Outer House to make important legal decisions.
Webster rejects claim of petitioners that the government will seek to delay proceedings, like in the Wightman case. Accepts need to proceed swiftly: ‘We can fit a lot into 11 weeks’.
Webster: We can see 3 stages ahead: Outer House, Inner House, UK Supreme Court. On average 3 & a half weeks each. A ‘challenging timetable’ but ‘capable of accommodating everyone’s interests’.
Webster: ‘No compelling need’ to fast-track case to Inner House (the civil appeal court in Edinburgh) given possible timetable to get through necessary arguments in 11 weeks.
Webster QC turns to protective expenses order issue. Cites tests of McArthur v Lord Advocate. Court need information on costs that are currently absent.
Webster QC: Parliamentarians have a combined income of £3.5 million from the public purse, post-tax. And other MPs have significant other outside income. And they have a ‘fighting fund of over £100k’. Highlights petitioners can pay.
Webster: ‘Remarkable’ that petitioners with such resources could request a public expenses order.
Webster considers whether the action would be cancelled without a public expenses order, which he argues is required for such an order. He says there is no evidence that any of the 76 petitioners have said that is the case.
Webster points out petitioners legal team are not working pro bono. They will accept reduced commercial rates if they lose. Adds this should be considered in totality. Calls on court to reject public expenses order.
Webster: If any order was awarded, it should be set at a limit of £30k on each side. Important to protect public purse costs of litigation. Concludes.
Petitioners rise again in response. Knocks back claim of lack of time - UKGov presented with arguments in July.
Petitioners: Highlights that Wightman case took 3 months to publish judgment. UKGov claim that this could be done in 2 weeks is ‘tight’. Reasserts 11 week deadline.
Petitioners: Not acceptable for MPs to put their personal assets on the line when trying to uphold their professional duties. Expenses order required.
Petitioners: @JolyonMaugham & @joannaccherry statements to courts do raise the risk that petition could not proceed without a public expenses order.
Petitioners respond on pro bono issue: ‘not practical’ for legal team to do this type of complex court work regularly without payment.
Petitioners conclude response to UKGov Counsel.
Lord Doherty: At this stage I am not going to report the case to the Inner House before issues properly focused. ‘Ot possible to make a useful report. 1st claim refused.
Doherty: Friday 6th September set for substantial hearing date in Edinburgh on No Deal Brexit.
Doherty: Protective Expensive Order will be granted given issue of public interest. ‘Unrealistic and unfair’ to consider MPs private assets in this, Although high number of petitioners & crowdfunding means a £30k split on each side is acceptable.
Court rises.
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