Thread by @JoshuaRozenberg

Good morning. I’m not at the @UKSupremeCourt but I plan to follow the livestream all day and live-tweet the arguments. The court is hearing separate appeals that raise similar issues: is the PM’s advice to HM to prorogue parliament justiciable? And, if so, was it lawful? (thread)

It’s a three-day hearing so there won’t be any indication of the result before Friday. I’d say a result next week is more likely, perhaps will full reasons to follow. Today the 11 justices will hear from the appellants, who lost in the national courts. Tomorrow, the respondents.

This morning, Lord Pannick QC, for Gina Miller, will argue that the High Court of England and Wales erred in law by failing to find that the advice of the PM was an unlawful abuse of power. The court was also wrong to treat the case as inherently political and so non-justiciable.

This afternoon, we’ll hear from Lord Keen of Elie QC. He’s Advocate General for Scotland and a minister in the UK government. He is often confused with the Lord Advocate, James Wolffe QC, who’s the senior Scottish Law Officer and principal legal adviser to the Scottish government

Lord Keen QC will argue that the Inner House of the Court of Session — the Scottish appeal court — erred in finding that the case was justiciable. The UK government says there are no judicial and manageable standards against which the PM’s prorogation advice to HM can be assessed

The two appeal are being heard together and I would expect both to be decided at the same time. The ruling will be binding throughout the UK. As always, each justice can write a judgment. But if they disagree I would expect the court to strive for a single majority ruling.

In practice, the UK Supreme Court will have the last word on these appeals. I can see no issue of EU law that would justify a reference to the EU Court of Justice. Complaints to the European Court of Human Rights normally take years to resolve.

There will be oral submissions on Thursday morning by counsel for the Lord Advocate (Scottish government); for Raymond McCord (NI claimant); for the Counsel General for Wales (Welsh government); and for Sir John Major (ex-PM). All have been allowed to “intervene” in the hearing.

The court has also agreed to consider written submissions by two more interveners: Lady Chakrabarti (Labour Party) and the Public Law Project.

Lord Briggs is the only justice not sitting. The court never sits with an even number of judges to avoid the risk of a tie. They don’t normally sit in September and all the judges would have had other plans. Some take holidays but others attend conferences or write judgments.

The judges will enter court and sit in order of seniority. Lady Hale will be in the centre. Lord Reed, her deputy, will sit on her right. Lord Kerr will be on her left. Lord Wilson will be to the right of Lord Reed. Lord Carnwath to the left of Lord Kerr. And so on.

The 11 justices sitting are:
•Lady Hale, President of the Supreme Court
•Lord Reed, Deputy President of the Supreme Court
•Lord Kerr
•Lord Wilson
•Lord Carnwath
•Lord Hodge
•Lady Black
•Lord Lloyd-Jones
•Lady Arden
•Lord Kitchin
•Lord Sales

The UK Supreme Court was set up 10 years ago. This is the second time it has sat with 11 justices. The first was for Gina Miller’s first Brexit challenge three years ago. Lord Sales (then Lord Justice Sales) sat in the High Court on that case.

Everyone waiting for the justices to enter the UK Supreme Court. The judicial assistants sit behind them.

Lady Hale opens the hearing by stressing that the court is not concerned with the wider political issues — Brexit.

Lord Pannick QC thanks the court for facilitating a speedy appeal.

Pannick: PM advised HM to prorogue for five weeks to avoid risk parliament would frustrate his policies. We adopt reasoning of Inner House of the Court of Session. PM has not produced a witness statement.

Pannick: a power can be exercised only for a proper purpose. This use of prorogation was improper. To evade control by parliament conflicts with principle of making prerogative powers subject to control by the legislature.

Pannick: High Court was wrong to rule that this case is non-justiciable. This court is not being asked to say how long a prorogation would be valid. It’s being asked to say that a five-week prorogation is too long.

Pannick: UK government’s main legal arguments have no substance. We say that when PM uses his broad discretion he must not be motivated by a wish to avoid parliamentary control.

Pannick: the government says this case is “academic” because parliament has sat in September and will sit in October. We say: it’s not for the government to say what parliament could or would have done in the five-week prorogation.

Carnwath asks Pannick about past cases.

Pannick tells Lord Carnwath there have been no decided cases on these issues because this has never happened in recent years. But there are well-established principles.

Pannick: refers the court to an interview transcript in the trial bundle. Traditional confusion over electronic documents. Pannick asks the court to use the paper documents instead. Jacob Rees-Mogg tells John Humphrys the Queen had to follow the advice of her ministers.

Pannick turns to the facts. He relies on the findings of the Court of Session. The PM regards parliament as a potential threat to the implementation of his policies, he says. Pannick relies on interviews given by Boris Johnson.

Pannick quotes Boris Johnson: the best way to leave with a deal is if the EU thinks that Brexit cannot be blocked by parliament.

Pannick: these interviews are strong evidence of the PM’s motive for suspending parliament for five weeks. It’s remarkable that the PM has not made a witness statement explaining why he advised HM to prorogue. Such a statement could have been made by the Cabinet Secretary.

Pannick: we would have applied to cross-examine any government witness (apart from the Treasury Solicitor, who produced documents). The documents supplied are no substitute for a statement explaining the government’s reasons.

Problems with the documents again. The court does not have one of the decided cases Pannick wants to cite. Pannick handles the interruption with courtesy and aplomb.

Problem, of course, is that the bundles had to be assembled at short notice.

Pannick inviters the court to draw adverse inference from the PM’s failure to provide a witness statement. He says the court should infer there is no answer to the allegations about the PM’s motives in advising a prorogation.

Twitter notice: I’ve just been asked to stop threading these tweets as that makes individual tweets harder to pick up and publish elsewhere.

Further Twitter notice: I’m going to try tweeting single tweets for the blog that has requested them and will then copy them to the thread.

Lord Pannick QC turns to the law. To advise a 5-wk prorogation is to use the prerogative powers for an improper purpose. A power can only be used for a proper purpose: see the case of Padfield.

Pannick is being closely questioned by several justices about the effect of the Padfield case. The justices are now seizing their chance and opening up with broader questions. This is where Pannick shows his mastery of the case he is arguing and of public law more generally.

Lord Carnwath asks Pannick which bills were lost through prorogation. Pannick says the effect is to prevent parliament from performing its functions more widely. Lady Hale says it would be of great interest to the court to be told which bills were lost.

Though she does not refer to it specifically, Lady Hale is well aware that one of the bills that has been lost — although it may well be reintroduced — will allow no-fault divorce in England and Wales. That’s a particular interest of hers. We’ll see what government says on this.

Another bill Lady Hale may have had in mind is the Domestic Abuse Bill.

Pannick cites the first case brought by Gina Miller, which established that ministers could not trigger Brexit without legislation. Shows ministers are the junior partner to parliament. Can they remove scrutiny by the senior partner, parliament? That’s the real issue in this case

Pannick reminds Lord Reed that his court had no trouble finding that employment tribunal fees were too high (in the Unison case) without saying what level would be lawful. So this court can declare that five weeks prorogation was too long without saying how long would be ok.

Lord Reed points out that parliament could have blocked prorogation itself earlier this month if it had wanted to. Pannick says that’s no answer to the accountability of the PM to this court for the legality of his conduct: see Fire Brigades Union case.

Pannick pours scorn on the government’s arguments that parliament was prorogued for long periods in the early 20th-century. That was before the development of judicial review. In any case, they were not intended to prevent parliament from operating. Hale: Commons, not parliament

Lord Hodge: can a PM prorogue for political advantage? Pannick: it depends. Lord Kerr: but not to avoid scrutiny of the executive? Pannick: precisely.

Brief glimpse of the justices arguing among themselves, via counsel. But very hard to infer their thinking from such questions

Pannick cites the Belmarsh case: Lord Bingham did not find the challenge non-justiciable, as the attorney general had argued. Hale: Lord Hoffmann dissented, so he thought the question of an emergency threatening the nation was justiciable. Pannick: so did the others.

Pannick is rattling through some decided cases (“authorities”) that the PM relies on, not remotely thrown by the fact that he has just a few minutes left. When questioned, he can tell you exactly what these cases decided.

Pannick: what if another PM wanted to prorogue for six months or a year? Dicey, relied on by the PM, is not an answer. We only seek a declaration that the advice to HM was unlawful —because the PM has promised to comply with any declaration.