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Roddy Dunlop rises for the respondent, the Crown. Begins that prorogation is done by the sovereign alone - & so is not reviewable by the courts.
Dunlop: There remain prerogative powers that are not judiciable - either as they are intensely political or sole prerogative of Her Majesty. Citing GCHQ case - there are a residue of non- judiciable cases. Pg 418: mentions disillusion of Parliament not being judicial reviewable.
Dunlop turns to ‘Smith on Judicial Review’. States proroguing Parliament is a classic example of a prerogative power held by the monarch where the courts will not interfere.
Dunlop: Lord Roskill speech in GCHQ case suggests this is either non-judiciable as it is a prerogative of the monarch alone, or it regards an issue so politically intense that the courts are ill-equipped to rule upon it.
Dunlop essentially arguing that the UK Constitution makes exceptions for certain acts of the sovereign to overview by the courts.
Dunlop turns to Petitioners use of the Barclay case. States this case concerned jurisdiction not judiciability. Lady Hale stated that the authority of the Queen in Parliament was not an issue that could be challenged in the courts.
Dunlop turns to the Malaysia authority of petitioners: this is different from the present case. The royal order was legal & the case found that a change in circumstance could have made it unlawful. This is not the same as in this case. The court was wary of overturning order.
Dunlop turns to 2011 Fixed Term Parliament Act, s6(1) which states it does not change Her Majesty’s power to prorogue Parliament. Proof, in his view, that this is a prerogative power the courts cannot interfere with.
Dunlop: There is Parliamentary convention that the Queen will follow advice of Privy Counsel in proroguing Parliament. Parliamentary Convention is also not challengable in courts. (Eg. Sewel Convention was not found to be enforceable by the courts in Miller)
Dunlop: Claim is ‘Parliament had no say’. But Parliament never had a say on prorogation - in the history of the law there has never been judicial intervention. Again @woodstockjag report cited. Pg8 cites numerous prorogations. There is no recent judicial intervention on this.
Dunlop: It’s entirely normal for parliament to be prorogued. It being longer than some people would like it to be or it being political does not make the issue one for the courts.
Dunlop: Decision to prorogue Parliament does not infringe any aspect of the Claim of Right. Right of parliament to sit does not mean a right to sit at all times. 1857 Act recognises right to prorogue. Nothing said by petitioners shows a breach of the CoR.
Dunlop: Moohan authority does not help. Speech ‘did not exclude the possibility’ that courts could intervene in extreme circumstances. It was not a positive statement of precedent - a ‘flimsy foundation’ for what is being requested today.
Dunlop responds to criticism of the Order in Council itself: It is in the same form as every time Parliament is prorogued. This is standard wording. Criticism of the Johnson letter to MPs is not relevant material for the courts - that material is intensely political.
Dunlop warning against judicial overreach: Courts should not be policing the letters of politicians in political communication. @joannaccherry is entitled to express views, but she is not the ultimate arbiter of political truth. Says Lordship should not enter political arena.
Dunlop: Petitioners ventured into separate issue of whether Act of Parliament is needed for No Deal Brexit. ‘He is simply wrong.’ This outcome has been expressly contemplated by Parliament when authorising Article 50 & legislating in the EU Withdrawal Act 2018.
Dunlop begins a backup argument: even if there is a prima facie case for the petitioners, no interim order should be granted before the hearing scheduled for Friday 6 September. No utility in an interim order against prorogation.
Dunlop: Nothing can or will happen on prorogation before 6th September. Decisions on the merits of the case can be taken then. ‘There is no good reason for hearing it now.’
Dunlop: Petitioners asking for a court order that is wholly unprecedented, that goes beyond anything done before. It is that which would be unconstitutional. Concluding - there is no prima facie case to challenge monarch or political decisions. There’s no need for interim action.
Lord Doherty to consider the motion overnight & return at 10am tomorrow. Court rises. Thanks for following! ☺️
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