Thread by @bbclornag

Full hearing has started in Edinburgh aimed at stopping parliament being suspended ahead of the Brexit deadline.
A cross-party group of Westminster parliamentarians want the Court of Session to rule government's proroguing of parliament is illegal and unconstitutional.

Judge dealing with minutes from Lord Advocate first.

Here the live stream
bbc.co.uk/news/av/uk-sco…

Lord Advocate allowed to intervene by way of written minutes.

Court 9 packed this morning: lawyers, journalists and members of the public almost filling the benches to capacity.

Discussion about whether additional legal documents - supplementary notes of argument - can be lodged

Lots of talk about timetables and agreed deadlines for lodging documents

Counsel for petitioners: received an email at 10.55pm last night with supplementary note of argument from solicitors acting for the respondent. It was a redacted document he said.

An attempt he says to bring the documents in late, with no explanation, counsel says document is a witness statement from someone called Jonathan Guy Jones for Millar Case set down for High Court in Thursday.

By not bringing in an affidavit but documents appended to it, attempt to produce evidence to the court, not subject 'to tell the truth the whole truth and nothing but the truth.'

First document dated 15 August 2019, to Prime Minister, Dominic Cummings and others, shows PM approved approaching Queen to prorogue Parliament mid August, so well before it was made public, counsel for petitioners says.

Counsel says: Second document, 23rd August, memo to PM, DC and others about announcing Queen's Speech, talks about 'handling plan'

Counsel: no idea who penned these documents, these documents have no attestation as to their truth, counsel says. Questions the integrity and honesty of those who have given the instructions to government lawyers.

Counsel says documents three points to this being a decision by the prime minister who refuses to give an affidavit under oath.

Minute to cabinet concludes everyone who joined cabinet did so on understanding that U.K. might have to leave without a deal.

Author of document in part (handwritten notes) by PM, but no sworn statement counsel for petitioners says and argues documents inadmissible - should not be allowed in.

Counsel for Westminster government apologised for late submission of documents

Duty of candour is taken seriously. Already statutory provision for parliament to sit between now and 31st October, lawyer for government says.

Judge says will allow the documents in, says regrettable documents not produced before last night but three matters raised in the supplementary documents are possibly material to the arguments in court. Weight given to documents a matter for the submission.

Counsel for petitioners says he has 'been ambushed,' by late productions .

Counsel for petitioners: This case is about accountability, of government to parliament, and legally of government to the courts.

says prime minister seeking to hold office without accountability.

Aidan O’Neill QC : pm says in his own writing that, further sitting of parliament is simply 'a rigmarole that shows MP's are earning their crust,'

Counsel says moves by PM illegal and unconstitutional,

This is not a case when English constitutional traditions are to be preferred by default, we apply Scots law here, counsel says.

The fact that court of session, founded by an act of the Scottish Parliament, highlights that court not subject to the Crown, counsel says,

This not politics are usual, this is an attempt to upset the balance of power between the executive and the legislature, attempt to roll back history in favour of some divine right, counsel says.

Argues if parliament is to be shut down and silenced, role of court is to ensure accountability ..that executive comes to the court to explain what it is doing, as no sworn evidence court he argues can draw adverse inferences.

Says proroguing of parliament dimishes parliamentary sovereignty, it is not stacking the cards it is taking the deck,

Counsel for petitioners says there are examples from history where powers of great offices of state have been exceeded, says have to be vigilant against abuse of power by executive.

Says under U.K. constitution the Executive (government) has no inherent legislative power

Cites Burma Oil case, 1964, that 'prerogative is really a relic of a bygone age,'

Cites Millar case which counsel says establishes that Executive prerogative power can never be used to defeat or frustrate domestic rights which have been created by Parliament

The Millar principle makes it clear that prorogative power cannot be used without parliamentary authority set out in primary legislation, says counsel.

15 minute break

Aidan O'Neill resumes his arguments. PM knew of litigation, declined to give affidavit, there is case law on this. Counsel says court can and should draw adverse inferences from this, PM doesn’t get the benefit of the doubt, he says.

Counsel says approach to be taken against him is that this is all too political, says case law shows that even if there are political consequences there is no reason for the court to shy away.

The courts as guardians of the constitution and rule of law are here to guard against unconstitutional appropriation of power, he says.

It is for the courts to determine how far power extends on the part of the Executive, counsel says.

Says this is also an error of law, clear from unguarded comments made by defence minister, counsel says.

Says while the pm says there is plenty of time for parliament to exit U.K. leaving EU there is simply not enough time and there is sworn evidence to that effect, says counsel.

This a power grab by the Executive, he says.

That’s lunch now, government arguments this afternoon

Government lawyer says this not a matter for the court as court does not have the tools to make a political decision,

Cites Northern Ireland legislation has ensured provision for parliament to sit, says so constitutional fears raised by petitioners have already been addressed.

There is no statute that regulates prorogation, government counsel says.

This is political territory, decision making that cannot be measured against legal standards, he says.

Cites legal case of election of first minister to Northern Ireland; refers to matters of great importance saying should be left to the government, or the Crown.

Important differences he says between statutory and prorogative powers.

David Johnston QC, acting for the government, says recent Supreme Court case noted important differences between statutory and prerogative power.

This case non-justiciable, not for the courts, he says.

Counsel says that arguments he is making fit in with wider constitutional arguments on separation of powers,

Says no differences between Scots law and English law pointed out in earlier submissions.

Faced with five weeks of prorogation, important for courts to understand statutes have already regulated number of sitting days available to parliament, he says.

Claim of Right' parliament be frequently called and allowed to sit and freedom of speech and debate afforded to members,' petitioners claim this is breached if order in council allowed to stand, gov lawyer says up to parliament to decide what specifics to attach to 'frequently'

Says the word frequently creates no legal standard as to whether it has been adhered to or not, counsel says.

Counsel for government - what does it mean to say that Parliement is sovereign? Says it means that there are constraints on the Executive but also on the Courts.

Counsel for government says his arguments show that order should remain undisturbed,

Counsel for government says application by petitioners is not concerned with the legal requirements for exiting the EU (like Millar) it is about prorogation of Parliament

Says when pm gives advice on prorogation it is fast moving situation, not one when the law can impose additional legal standards,

His argument is that legal standards cannot be imposed on political judgments. Counsel for government says cannot realistically be said to be unlawful for parliament to be prorogued.

Cannot be the role of the court to say when parliament should be sitting. Issues raised by the petitioners are political questions and their resolution must be in the political arena, government counsel says.

Counsel for petitioners says their position is being misrepresented, not saying that it is a matter for the courts to say when parliament to sit.

Five weeks, when does it become objectionable ... five months, a year? It is about the exercise of the power of prorogation in the circumstances running up to exiting the EU

Counsel for petitioners, Aidan O’Neill, speaking in response to arguments made by government lawyers: don’t misrepresent our case by referencing American case law which has nothing to do with the prorogation of power.

Consel argues constitutional rights are being affected in that proroging is a direct attack on the mp's he represents ability to carry out their duties. Proroguing is a profoundly unconstitutional and undemocratic act, he says.

Aidan O’Neill says documents sent to him last night (10.55 pm, while he was sleeping he pointed out!) said : 'it is for the pm to judge when to prorogue parliament' the details being put forward for proroguing don’t stand up to scrutiny he says.

There are constitutional principles that must be enforced by this court, counsel argues.

Lord Doherty says grateful to counsel and to all those involved, says will attempt to reach a decision overnight. Sitting again at 10 tomorrow.