, 33 tweets, 11 min read Read on Twitter
Yay for legal blogging being cited in cases!



Craig's important post: ohrh.law.ox.ac.uk/prorogation-co…

My commentary ft.com/content/a27982…
Fwiw, Craig's post highly persuasive

He is UK's leading constitutional law expert and his post sets out compelling legal basis for the court to intervene

Doesn't mean his view will prevail today, but only a very confident and robust judge would say Craig was wrong on this point
Told you the 1680s were exciting for constitutional lawyers

No surprise reference to 1680s law in current constitutional situation

Back to basics

Very very clever

TL;DR

The court should intervene to protect parliamentary sovereignty

Correction to earlier tweet

Lord Reed does not become new Supreme Court President until January

Is currently Deputy President

Doe not make the submission less savvy, and the prospect of the exchanges on appeal less delicious
Now we go - now "Abuse of Power" - that is, improper purpose/motive

What was the intention behind this prorogation?

Let's find out

Exceptionally in public law, "abuse of power" requires the court to go behind the texts to assess motive and intention of those exercising power

The government's lawyers will not be enjoying this
And these quotes show how loose tongues in political interviews can be fatal in legal cases
As long as the incriminating (ahem) quotes are from outside parliament - as Hansard is (rarely) admissible as evidence because of the Bill of Rights
The judges are biting



Etherton was one of the "Enemies of the People" judges last time round
Note - I am NOT in court and this commentary is entirely dependent on the excellent court live-tweeting of @JoshuaRozenberg @mattholehouse @BBCDomC and @RobertCraig3

If you value this commentary, please #follow them too, as it simply would not be possible without them
In theory: when legislation is genuinely ambiguous, under the Pepper & Hart rule

In practice: the most boring tax law cases imaginable, and then rarely

Hmm

A witness statement could have cured this problem

Oh

Again, Pannick is taking careful legal aim at the advice to HM, not the HM's decision to prorogue itself

Now, Pannick is moving on to jurisdiction

(The correct role and powers of the court)

Textbook, top class advocacy

Having first explained the horrors of the problem, you *then* tell the judges what they can then do about it

Always love the "clanking mediaeval chains" quote

Now - a tough submission for Pannick

Trying to separate dissolution (ie, ending a parliament for a general election) - where the courts will certainly not intervene - with prorogation

This is not going to be easy

And one reason that is a tough submission is that Pannick is arguing from first constitutional principles - and so if the court is to be with him, they need to know just how far other constitutional matters will be affected
What I think Pannick is aiming at is for the Court to hold that any request for prorogation ("advice") must not be an abuse of power and that there is a reason for its duration

Therefore: a 5 week prorogation could meet that test, in theory, but it just has not here
There has to be break now on my analysis, sorry

Please keep following @JoshuaRozenberg @mattholehouse @BBCDomC and @RobertCraig3 for news from court

And am sorry to those expecting my reportage/analysis threads to be as colourful and sweary as @IanDunt's political ones
Pannick now doing the hard work on "justiciability" - whether this is *really* a matter for the courts, even if in principle there is jurisdiction - the difference between whether judges can and should intervene
He has contended there are no "no go" areas for judicial review

Pannick says - flatly - that the Scots court got the decision wrong yesterday

Pannick again stresses the principle at stake

(Will be interesting to hear the government's argument on this)

Neat final move

Pannick is going for a "declaration" of illegality rather than a quashing order - that will make it easier for the court if they are with him - as quashing orders re the prerogative/advice could have tricky issues

"Dicey has been superseded"

Please, let this be the case, this over-rated Victorian jurist and his shadow have ruined UK constitutional law for long enough

Pannick over, government panic continuing

(Sorry, but I have had to up with all your dreadful Pannick puns as if they have not been done 1000s of times before)
And that is it from me

Read @JoshuaRozenberg @BBCDomC @RobertCraig3 for the government's case

Expect government to stress "non-justiciability" as (a) that is where they legally strongest and (b) their case on facts is frightful mess - improper purpose and 5 weeks unexplained
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