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Back at Court of Session, Edinburgh, for round 2. Aidan O’Neill QC to continue submissions for petitioners. @joannaccherry QC, MP & petitioner, present in Court & doing media outside.
Back in court awaiting Lord Doherty. Phone charged. Sandwich had hummus, which most likely marks me out as part of the ‘saboteur, liberal elite’. 😇 🥪
O’Neill QC resumes for petitioners. Begins with Moohan v Lord Advocate, prisoner voting case. Lord Hodge said: I do not exclude possibility that a parliamentary majority abusing its power could be overturned on basis of constitutional norms.
O’Neill: Precisely this unlikely event envisaged by Lord Hodge is taking place - executive trying to entrench its power by suspending parliament. Courts can intervene to uphold democracy & rule of law.
O’Neill turns to Chagos Island eviction legal case. Order passed by Privy Counsel sought to legitimise this. House of Lords found Orders in Council are judicially reviewable. Lord Hoffmann quoted: prerogative acts should be subject to judicial review on normal principles.
O’Neill quotes the other judges in agreement with Hoffmann in this case. Ministers of the Crown cannot claim personally immunity because the Queen has signed off a prerogative act on the basis of advice.
O’Neill: Where a case related to fundamental rights or intrusive effects the courts must apply ‘anxious scrutiny’ that the act in question had strong justification for doing so. This applies to leaving ‘deal or no deal’ on October 31. It has profound impact on everyone.
O’Neill: EU exit has profound impact. The end of EU citizenship. The end of EU law. This cries out for the highest scrutiny by the courts. ‘Reasons given for proroguing stand up to very little scrutiny.’ Can’t use power here for an improper purpose.
O’Neill: This is the improper use of prorogation as entrusted to government. Johnson administration is seeing ‘what it can get away with’.
O’Neill turns to the Order in Council to prorogue Parliament between Sep 9-11. We know it won’t be allowed to sit for over a month. Order says Parliament will return for ‘urgent’ affairs. They’re urgent now, he says. So why are they proroguing?
O’Neill turns to statement by Johnson. He says it makes no sense. Claim is ‘Parliament isn’t getting work done’ so it needs prorogued. How does stopping Parliament working mean the work required will get done?
O’Neill: Johnson has claimed there’s urgency for action - why then would he be closing done the democratic avenue for decision making & action?
O’Neill: Johnson also claims Parliament can do nothing to stop No Deal Brexit. This infers that Parliament’s role is unimportant - so who cares if it’s rights are limited?
O’Neill: Letter is not only vague - it has got it wrong on the law. If thinks the UK crashes out of the EU on Oct 31 irrespective of Parliament - this is not the case.
O’Neill quotes Speaker John Bercow that the prorogation plan is constitutional outragerous, & goes against the normal constitutional procedure for prorogation lengths.
O’Neill: Boris Johnson letter is about increasing pressure on parliamentarians to pass the withdrawal deal. Time - with such a prorogation - would prevent Parliament to function effectively, according to submission from @joannaccherry.
O’Neill: @joannaccherry affidavit sets out Johnson’s motive - to deny MPs seeking an alternative to No Deal Brexit, to block parliamentary legislation on Brexit before Exit Day.
O’Neill: This is all uncontested sworn evidence. Johnson claim that there is enough time for Parliament ‘might be called a lie - & that might be expected’.
O’Neill: UKGov position assuming legality for a No Deal Brexit is an error in law. UKSC decision in Miller made it clear can Crown can only remove fundamental rights -like leaving the EU - when given permission from Parliament in primary legislation.
O’Neill: Due to Miller, Crown passed law for triggering of Article 50. But all this did was notify an intention. The Wightman case then made it clear that triggering A50 is unilaterally revocable. There is nothing inevitable to follow from notifying exit. UK has right to u-turn.
O’Neill: Therefore law passed by Parliament to notify gave no blank cheque for Government to do whatever it wants. We still then need an act to sanction leaving the EU on a no-Deal basis.
O’Neill: If this prorogation goes ahead there will be no act. From the justification, there is no sign of an act. UKGov is therefore acting unlawfully by failing to reach any agreement or simply by letting the date pass without even seeking an agreement.
O’Neill: So we have a decision letter that had erred in law, & the very act of prorogation that blocks time for alternative legislation is itself unconstitutional. The only other constitutional actor available here is the courts.
O’Neill: Apply Miller & Wightman judgments - no parliamentary authority for removal of fundamental rights means government is acting illegally by forcing through No Deal Brexit. This court should order the government either to revoke article 50 or to seek an extension. Huge claim
O’Neill caveats that this would be a highly contentious order. But ‘if parliament is not there, the courts will have to come in’. Claim is that overturning prorogation is a moderate alternative to the courts potentially having to block a No Deal Brexit later on.
O’Neill, concluding, says he has met the requirements at this interim stage - & requests am interim suspension of the prorogation & an interdict against all ministers of the UKGov to act contrary to that suspension.
Lord Doherty asks about parliament return dates & conference adjournment. O’Neill points that those dates are decided by Parliament - & so are very different from prorogation. Lord Doherty concurs.
Lord Doherty asks that if it is up to parliament to discuss what if wishes when it returns. O’Neill points to the complexity of the Order Paper, & controlling the business of the house - with opposition facing obstacles from the government.
Doherty: Aren’t thèse obstacles the normal cut & thrust of politics?
O’Neill: Precisely, & it’s that prorogation seeks to prevent. That’s not democracy - it’s mob rule.
O’Neill: Prorogation can kill any proposed Bills that have not passed before the end of the session. Says this is a ruse to block democratic accountability ahead of planned Exit Day. This is unconstitutional & this court should stop it.
Lord Doherty compliments @woodstockjag report for House of Commons Library on prorogation cited by Aidan O’Neill QC. His Twitter feed is also worth a follow. 😉
With an odd last minute mention of @naefear’s letter to the Scotsman by Lord Doherty, submissions from petitioners concludes. Will start a new thread for the respondent.
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