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Ready to go at Court of Session as legal challenge to shutting Parliament speeds through Scottish courts. I’ll be over tweeting till 3.30! 💪
Actual queues down the hall for the delayed full hearing - now upgraded to Court 9 due to larger capacity. Would say towards 100 people here - & pro-EU protestors outside.
Live cameras recording in the court room (perhaps first ever live feed at COS?). Court founded back in 1532 by an act of the old Scottish Parliament, Scotland’s highest civil court.
Press have been seated in the grand court room. Public now joining, seated behind the two counsel teams & court staff. (One guy just said hi cause my grandpa used to tune his piano 😅)
Clerk of Court reads out procedure. Aiming for lunch break at 11.30. Also tells people to use twitter responsibly & not ‘troll’. 😇
2nd Clerk clarifies that only ‘members of the press’ can live tweet hearing - not members of the public. Thankfully - due to some prior registration - I’m in the accredited former category. 👍
As we’re still waiting for Lord Doherty, I’ll use this time to inform you that there are 5 wigs in the court room- senior & junior counsel for each side, & 1 on the head of the court clerk.
Now there are 6. Lord Doherty enters. Court rises. He will Deal with minute to intervene for Lord Advocate on behalf of ScottishGovernment. The petitioners have no objection. Respondents differ to Doherty.
Lord Doherty grants intervention from Scottish Government by written pleadings in the case - means @ScotGov legal view will be heard.
Court considers 2nd request from an outside party to intervene (believe from a Mr Milne). Petitioners object. Doherty is not satisfied - & intervention is not refused.
Doherty moves to notes of argument lodged last night by the respondents. Counsel for respondent seeks to expand on this - & bring documents on reason for prorogation be placed before the court.
O’Neill QC, for petitioners, objects to these documents being placed before the court. 13 August a deadline was set. O’Neill says these documents have been provided too late by the UKGov.
O’Neill: UKGov legal team treating court with ‘contempt’ by seeking to subvert deadlines on providing any evidence for the case.
O’Neill returns to claim that UKGov has no legal basis to leave the European Union without a deal, applying the Miller & Wightman cases. This is a prope part of the case to consider, he contends.
O’Neill says he received a supplementary note of argument & schedule of documents from UKGov last night at 10.55pm - ‘way past my bedtime’. First he’s seen of them was this morning over breakfast.
O’Neill: No explanation or apology given by UKGov Counsel on why this has happened. Seems Court has been given appendages to affidavits for the new Miller case down south.
Essentially Petitioners think UKGov is seeking to evade legal scrutiny by not bringing witnesses with affidavits, but bringing documents connected to affidavits - & thereby facing a more limited form of legal scrutiny.
O’Neill runs through an internal UKGov on prorogation - sent to key Johnson aids including Dom Cummings. Prorogation was being considered in August 15 - at time UK Gov was telling Scottish courts the matter for academics. UKGov Counsel was misleading the court. 💥
O’Neill runs through the internal document. Which states normal prorogation is short - but plan can be made to shut Parliament for far longer. O’Neill says this is the internal spin.
Statement, apparently from Boris Johnson of August 16th, read out. Describes September Parliament session as a ‘rigmarole’. O’Neill points out no affidavit has been provided to this.
.@nmdacosta document of August 16 on the ‘handling’ of prorogation read out. O’Neill points out there are still omissions in the documents. He says the petitioners’ right to justice is undermined by admitting such documents.
Next document is on communication to Barmoral in August 27. O’Neill: Plans were being made for prorogation at time UKGov were telling this court the matter was ‘academic & hypothetical’. Says he does not question the honesty of legal counsel - but who they receive orders from.
O’Neill: Internal document proves this was a decision of the PM, who refuses to swear an affidavit on what was the true reason for shutting Parliament. Document speaks of ‘line to be taken’ - essentially Gov defence is political spin, not a legal defence.
O’Neill sums up his opposition to admissibility of UKGov documents. Reminds Court only sworn affidavit is from @joannaccherry QC MP - that parliament does not have sufficient time to consider legislation & scrutinise before Oct 31.
UKGov Counsel begins by apologising for the lateness of the documents, citing a ‘fast moving political situation’. Adds that affidavits will go before the English courts on Thursday. Say this is placed on basis of a ‘duty of candour’.
Doherty decides to admit the documents. Says lateness is ‘unfortunate’ but need to hear fullness of argument & with consistency with other legal processes.
O’Neill begins his submissions for the petitioners, 75 parliamentarians + @JolyonMaugham: ‘This case is about accountability - accountability of executive to parliament, & executive to the courts.’
O’Neill: We have a Prime Minister seeking to hold office without accountability, & to wield power without responsibility. We are a constitution based on the rule of law.
O’Neill: Claim this was a decision by the monarch is not the reality. Shutting Parliament was an act of power by the executive against parliament. Contempt for parliament was ‘breath-taking’.
O’Neill portraying Johnson as a tin-pot dictator. An ‘autocracy, 1-man rule it appears’ - a man ‘without shame’ for undermining UK constitutional traditions. Repeats what petitioners seek: that the plan to shut parliament is unconstitutional & ultra vires.
O’Neill: This is a case of Scots law, in a Scots courts, within the Scottish constitutional tradition. Says applying the Scottish tradition of a narrower limit on prerogative powers should be preferred.
O’Neill: This court knows nothing of English law. Scots Law is the law of this Kingdom. This is the Court of Session - created by the act of Parliament. These courts are not a Royal Court like in England. This court is not subject to the power of the Crown.
O’Neill: This is an attempt to roll back history in favour of a kind of Divine Right. It is a move to undermine the position of Parliament in favour of empowering the Executive. It is the role of the court to step in - in the name of the rule of law - & ensure accountability.
O’Neill: Quotes Professor Paul Craig - behaviour is stacking cards in favour of the executive. O’Neill goes further: Executive is seeking to take the deck, but they can’t because we live under the rule of law.
O’Neill: it is crucial that executive sits within the power given by Parliament. We have cases from history where officers of state use power to undermine a democratic constitution. We must be forever vigilant against such abuses.
O’Neill: Tradition of the UK constitution stems from the glorious revolution, contrasts this with an absolutist tradition in France: ‘je suis l’état.’ Petitioners seek to defend over 300 years in tradition of parliamentary sovereignty.
O’Neill turns to some academic writing, summarising the case law that prerogative powers - such as proroguing Parliament - is subject to judicial review by the courts. We live in a state governed by law - not arbitrary power.
O’Neill quotes from Burma Oil cases. View that prerogative power is displaced by statute, where some exists. Doherty says this is uncontroversial. O’Neill replies it may not be to the rest of the court (ie. the respondents)
O’Neill turns to Miller case principle: cannot use prorogative power in a way that will reduce or remove rights of individuals. Claims this in effect will be the result of prorogation & a No Deal Brexit.
Court rises for a short 15 minute break. Also been told that broadcast of the hearing will be available later on. 👍
Main reflection from morning submissions: internal documents on how Boris Johnson and key aids were game-planning shutting Parliament & seeking to spin the expected backlash has potential to be politically explosive. That’s the clique really ‘taking back control’.
I’ve been briefed on this @nmdacosta (key insider) sent email to Boris Johnson & key aids on shutting Parliament (sent August 15). Handwritten note made BY the Prime Minister in support of shutting Parliament on August 16th. Minute of Cabinet 28th August also referred to in court
Lord Doherty returns. Court rises. O’Neill QC continues for petitioners. Refers back to Lord Hodge in Meehan case: courts’ right to step in under common law informed by democracy, rule of law, constitutional norms to declare acts of executive as unlawful.
O’Neill then refers to Barclay case (Channel Islands jurisdiction cases) where Privy Counsel advice was found to be justiciable. ‘The respondents don’t deal with this case because it’s against them.’ Chuckles of appreciation from public gallery.
O’Neill: This Court exists to provide constitutional remedies. Ministers can be made to swear before the court & be found in contempt of court.
O’Neill: Claim of Right 1689 of Scotland applies in this court. We live in a legally limited constitution. All this has happened before - those in power abused it, including the power of prorogation. They were removed from power for those abuses - abuses of despotism.
O’Neill contrast the 1689 Claim of Right as a triumph for radical republicans in Scotland, limiting the monarchy within the law, while the English 1688 CoR was a more moderate compromise between Whigs & Tories. Hence a different constitutional tradition & law in Scotland.
O’Neill: Claim of Right was an act of Parliament to say ‘never again’. The powers of the Executive clearly have limits. Cites De Keyser’s Royal Hotel case - a key case on prerogative powers being judicially reviewable.
O’Neill: Process is to swear evidence on the reasons for why decision was made. This has not been done. Accuses UKGov of trying to ‘ambush’ petitioners with late & partly redacted internal documents.
O’Neill: Boris Johnson has refused to explain his decision to the court. What can Court do? It can & should draw adverse inferences as a result. His personal & professional life is one of being unwilling & unable to speak the truth. 💥
O’Neill: All we have is PM’s handwritten note of August 16. His claim Parliamentary session is a ‘rigmarole’. This court is ‘no fool’ - we should not accept at face value what is claimed by PM in drafted political claims.
O’Neill: UKGov reason for prorogation clearly makes no sense. Claim: We need to push a new agenda, so we shut Parliament. This is a clear non-sequitur (hello critical legal thinking!). You don’t need to shut Parliament for so long to push a new programme.
O’Neill: Shutting Parliament is about a No Deal Brexit - not a new agenda. It’s to silence & disempower opposition. That’s unconstitutional - it’s an abuse of power.
Petitioners thought of referring to Pepper v Hart but decided not to, as they don’t think there are issues of parliamentary privilege. (Sharing this solely for the legal geeks following this 😅)
O’Neill turns to EU Withdrawal Act, which give role for parliamentary scrutiny of EU Withdrawal. Says section 13 had no intention for a No Deal Brexit - but to scrutinise a Deal. No legislative authority, therefore, to give up on negotiations & leave without a deal.
O’Neill: Parliament has made clear intent for full involvement in Withdrawal. Proroguing Parliament at this time is to block this parliamentary duty - & only sworn evidence on this issue is from @joannaccherry that shutting Parliament means not enough time for scrutiny.
O’Neill: Why did they pick these prorogation dates? They’re gaming the system. Turns to Northern Ireland Executive Formation Act, s3(1). Placed duty for Parliament debate by 9 September. s3(5): requires later action by October 14. The prorogation is a trick.
O’Neill turns to next argument: There is no statutory authority for a No Deal Brexit. And they need such authorisation, as established at the UK Supreme Court in Miller.
O’Neill: Crown cannot remove substantive rights without statutory authorisation. Crashing out the EU would remove substantive citizens’ rights. Crown requires legislation to consent to a No Deal, he claims.
O’Neill turns to issue of Article 50 revocation. The assumption at Miller was triggering A50 was irrevocable. So a law was passed to allow triggering A50 - but nothing more.
Lord Doherty asks if A50 does consider possibility of No Deal. O’Neill rejects this: that A50 claim of ‘treaties no longer applying after 2 years’ is not the same thing - EU treaties no longer applying must be done inkeeping with UK constitutional law.
O’Neill: Parliament gave consent to open negotiations with EU. No consent was given to no deal. Applying Wightman (that A50 is unilaterally revocable by UK Executive) reinforces that No Deal is a choice to be made - one parliament has not expressly authorised.
O’Neill: EU Withdrawal Act statement that the European Communities Act 1972 will be revoked on Exit Day gives no specific authority for a No Deal Brexit - to leave in any way, or any terms. The section is silent on that.
O’Neill: in this debacle it may be that the courts are the only constitutional actor left standing - in normal times it is best for parliament to make these decisions, but it can’t when it is shut down. That is why the courts will need to step in.
O’Neill concludes his arguments & turns to some pre-emptive rebuttal. 1st, that the court should not intervene in this political issue. Says there are often political consequences to court role - & this isn’t about setting public policy but separation of state powers.
O’Neill: ‘The courts as guardians of the constitution & the rule of law exist to guard against the abuse of power by the state.’
O’Neill: court intervention in this case is not to make politics, but to ensure the continuation of constitutional & lawful operation of democracy & state action.
O’Neill mentions the remarks by the Defence Secretary caught on camera, which suggested the true reason to shut down Parliament was to subdue political opposition.
O’Neill: Respondent cannot pray in aid that this was an act of the 👸- it is a power grab by the executive. Conventions rely on honour, respect, & tradition - but if those in power care not for those values then conventions cannot constrain them. But constitutional law can.
O’Neill concludes. Court breaks for lunch. Resumes at 2pm.
Petitioner @JolyonMaugham addresses media outside court. #ScotlandInEurope campaigners again out in force.
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