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Lord Pannick has been covering the anticipated attack from the PM's team that the High Court can't rule one way or another. This is a legal concept with an almost unpronounceable name - "justiciability". Sometimes judges rule a case is not "justiciable"
Takes a bit of explaining: Some actions by ministers are in a grey area between high policy and law. An example would be granting a pardon to a convicted criminal (including after execution in the old days) or how ministers should conduct international relations.
The courts are often wary to tread into this area because it may tie the hands of the government in an area where ministers need a wide degree of discretion about how to approach a problem. So sometimes these cases are ruled to be not justiciable.
The PM's team in court will argue that Boris Johnson's decision to prorogue Parliament for five weeks can't be countermanded by the courts because it's not justiciable.
But, says Lord Pannick, that's not quite true. Over the years and by careful steps, the High Court have ruled that sometimes, and for very specific reasons, ministerial use of prerogative powers in this grey area can be reviewed by judges.
He says the Rule of Law - and the merits of Gina Miller's challenge to the proroguing of Parliament - are the questions the judges must grapple with, rather than considering whether the case is justiciable in the first place.
Now, the PM says that his decision to prorogue Parliament is not justiciable because it's basically a matter for high policy and politics, not the courts. But Lord Pannick is now embarking on an attempted demolition job of that defence.
PM relies on a 15-yr-old case when the late, great Lord Bingham said: "The more purely political a question is ... the less likely it is to be an appropriate matter for judicial decision... it's the function of political bodies [not judges] to resolve political questions."
(On the subject of Bingham, if you are not a lawyer and want a superb readable, entertaining and *short* book on how the UK's constitution evolved, check out The Rule of Law by (Lord) Tom Bingham. Fantastic read).
Back to Lord Pannick. He says the question for the judges is not whether they are being asked to fetter the PM's political powers - but whether he has the legal right to order such a long closure of Parliament, given its sovereignty and his lack of sound reason for doing so.
If the PM can prorogue Parliament without good reason for five weeks, then why could he not close it down for much longer? asks Lord Pannick. Allowing such a closure would therefore have "quite remarkable" implications for the rule of law and a democratic society.
That's your lot from Lord Pannick for Gina Miller.
