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Afternoon session commences. Respondent’s Counsel for UKGov rises: ‘This is a case of great constitutional importance.’ Their view is the case is not one for the courts - it is non-justiciable - and so should be dismissed.
UKGov Counsel: It is high politics - a matter for parliament to discuss, as they are doing today. Not a case for judicial review.
Gov Counsel: Northern Ireland Executive Formation Act made Law a need for parliament to sit on certain dates - when it cannot be prorogued. The dates planned for prorogation are in line with what was passed in that Act.
Gov Counsel: This matter is academic. Claim is Parliament cannot scrutinise to degree it wishes. But Parliament will sit, & is protected by the NIEF Act, between now and the end of October to scrutinise the Executive.
Gov Counsel: The Claim of Right 1689 does not advise to what extent Parliament should sit - Eg. For what length of time, or what restrictions are impermissible. CoR is therefore not relevant here.
Gov Counsel: unless Parliament legislates otherwise, prorogation (shitting Parliament) is a prerogative power (power exercised by the Prime Minister, consented to my the monarch). There is no legislation blocking this prorogation.
Gov Counsel turns to non-justiciability. Political decision making must have degrees of flexibility based on circumstances. The decision to exercise the prerogative of proroguing Parliament (try saying that fast!) is one such case.
Gov Counsel cites judicial challenge to the Tory-DUP deal. Legal application was refused as the issue in question was political, & so beyond the jurisdiction of the courts.
Lord Doherty raises the concern that ‘this is political’ could mean the function of Parliament has no judicial oversight. Counsel asks for a balance to be struck.
Counsel mentions the Robinson case, quoting Lord Bingham: issues of political judgment require a flexible response. This is quite different from the behaviour & remedies of the courts.
Gov Counsel says decision making of the UK Government in this case should not be considered on the basis of rationality, or other legal standards. (Write your own joke from that...)
Gov Counsel: some areas of prerogative powers remain non-justiciable, based on legal case law. He claims that proroguing Parliament is one such example that cannot be reviewed by the courts. Other examples would be a decision to wage war or sign an international treaty.
Gov Counsel turns to the Barclay Channel Islands case, cites by petitioners: the key point is in final para of Lady Hale judgment, where she distinguished between jurisdiction & justiciability.
Gov Counsel: It cannot be for Court to decide how much time Parliament needs, or the specific dates when it does or does not sit - that is a matter for each House of Parliament to determine. And this is something on which parliamentarians differ.
Gov Counsel: Parliament can limit prorogation by statute, by legislation. This is the correct route - not by appealing to the courts. The Northern Ireland Executive Formation Act set down those limits. This court should not set down limits beyond that.
Gov Counsel: crucial constitutional principle for the 3 pillars of the state to not overstep their role. The courts intervening in this case would be to overstep, & regulate the political acts of the executive & legislature irresponsibly.
Gov Counsel: The Fixed Term Parliament Act replaced a prerogative power of the executive and put it on a legislative basis by the Parliament. No such Act has been passed by Parliament regulating prorogation.
Gov Counsel: Prerogative powers are, generally, reviewable by courts - but justiciability depends on the subject matter of the power & context. Dissolving Parliament has been noted as something non-justiciable.
Gov Counsel quotes Wheeler case on promise of a referendum on an EU constitution. This cases found that unpopular political decisions are matters for Parliament & ultimately judged by the electorate. The court did not seek to enforce political promises.
Gov Counsel: Accountability does matter. But accountability to courts is not the only form of accountability. It can be in the political process. Says Miller case recognised this - Eg. That conventions are not legally enforced.
Gov Counsel considers the issue of Scots law - & says it would be odd if Queen of the UK proroguing the UK Parliament was subject to different legal interpretations of prerogative power in Scotland & England.
Gov Counsel moves to 2nd strand of argument: that the case is ‘academic’. Parliament will be sitting in October & this gives power scrutiny.
Gov Counsel: We are not facing an executive which is out of control, or one that is seeking to remove the franchise. We are facing five weeks of prorogation.
Gov Counsel turns back to Claim of Right 1689, & it’s content that Parliament should be free to sit. 1) this is non-justiciable. 2) what does it mean that Parliament should ‘frequently’ sit? 3) Parliament has regulated its sittings & there is no general law or requirements.
Gov Counsel: Parliamentary sovereignty means there are constraints not just on the executive but also on courts. Courts cannot supplement legislation with their own policies.
Gov Counsel turns to s13 of the European Withdrawal Act. This concerns approving a withdrawal agreement. This has no application without a deal, as in that case there is nothing to approve. Prorogation does not frustrate that.
Gov Counsel: The petitioners effectively conceded that the prorogation does comply with s3 of the Northern Ireland Act. It follows the law as set out by Parliament.
Gov Counsel reaching his conclusion. Summarises that, apart from the Claim of Right, no Act of Parliament has been identified by the petitioners prohibiting this use of prorogation.
Gov Counsel turns to claim ‘anxious scrutiny’ should be applied by court - as issue of individual right are at stake in EU Exit. Says this case is about prorogation: legal or not, & so has no impact on individual rights (like in Miller & Wightman cases).
Gov Counsel turns to claim No Deal Brexit would be illegal without further primary legislation. He says this is totally divergent from the main case at hand. ‘We’ve been told two things at the same time.’
I hope Lord Doherty decides who’s won soon, as I have to go in five minutes. Sadly, I get the impression he might want to think about this first...
Gov Counsel turns briefly to the documents disclosed under a ‘duty of candour’. Says this provides evidence that the reasons for prorogation were lawful & legitimate.
Gov Counsel says it disputes the @joannaccherry affidavit, as a matter of opinion formed by a particular political view.
I’m on a bus. 🚌 @JowitaAThor is asking me who won in court. I don’t know because I’m on a bus. Thanks for following everyone! x ☺️
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