Thread by @annaellis_net

At 10:30 today, the Supreme Court will sit *for 3 days*, with 11 Justices, on the matter of the prorogation appeals. Last time they did that was with Gina Miller's previous #Brexit case. The judiciary are wielding the big guns on this one. THREAD. 1/

Day 1: Couple of hours each for the plaintiffs in the Miller & Maugham/Cherry cases to put their arguments.
Day 2: Couple of hours each for the defendants (HMG & Advocate General, Scotland) to counter.
Day 3: "Oral interventions", 30 mins each. No Shami.
No room for waffle. 2/

For the die-hard politicos with time to spare, this is being livestreamed on supremecourt.uk/live/court-01.…. You can also read 164 pages of legal arguments from the Miller case, Maugham/Cherry case & the Government response. I'll be following the stream & posting updates. 3/

"This is a difficult question of law, evidenced by the fact that 3 senior judges in Scotland reached a different result to 3 senior judges in England & Wales". Supreme Court will focus on points of law, not political matters. Thanks given for cooperation between all parties.

Gina's submission: 3 main points.
1. Facts: "PM advised proroguing for 5 weeks to avoid Parliament thwarting his goals for #Brexit". Will use Inner House argument & add further arguments. 5/

2. Power should only be exercised for proper purpose. PM used prorogation for improper purpose.
3. London courts erred in saying PM's actions are non-justiciable. Legal q: is it within scope of PM's powers to prorogue for alleged purposes (i.e. sideline Parliament). 6/

Essentially, Miller's argument: PM was trying to prorogue for excessive length of time to sideline Parliamentary scrutiny & silence Parliament. This is something that can & should be ruled on by Court. 7/

Pannick (Miller's QC) argues that Govt's legal arguments have no substance. Focus on PM being motivated by a wish to avoid Parliamentary oversight/control. Examples of what Parliament might choose to do if they sat, but argues not Court's role to rule on Parl activity. 8/

Argues that prorogation not a matter of Queen's personal prerogative (which presumably would have stopped this going to Court). Now directing Justices to p.373 or Tab 51 of Miller's trial bundle, kerfuffle ensuing as electronic copy not matching paper copies. 9/

Citing Rees-Mogg interview on R4, prorogation is a PM decision. Thus, no criticism of HMQ in these proceedings.

Moving on to the Scottish Inner House decision. PM clear that #Brexit happening on October 31. PM has no majority. 10/

Inner House decision: PM sees Parliament as a threat to his plans. Evidence in bundle. Further kerfuffle. Yet another media interview. PM making "Negotiation 101" statement is somehow evidence of PM viewing Parliamentary scrutiny as threat. 11/

Negotiation 101: Squabbling MPs with large Remain bloc scupper any decent deal with the EU. Parliament should work together towards best #Brexit deal as Govt committed to leaving on October 31. 12/

Pannick: PM has provided no witness statement. This avoids cross-examination; contempt of court if witness statement not telling truth. Important part of Miller case is about PM's motivations. Suggests that Cabinet Secretary could have made statement on PM's behalf. 13/

Certain certainties: PM's character will be subtly traduced & there's a heck of a lot of paperwork in the Miller case. 500-600 pages per bundle, multiple bundles & nothing matches the electronic copies. Major kerfuffle *again* & we're only 30 mins in to the Miller submission. 14/

For those who aren't embedded in court terminology, a "bundle" is a large ring binder full of evidence, timelines, court processes, and/or case law. All of which supports the QC's skeleton argument, which is a summary of what he/she wants to argue. 15/

Back to Pannick's argument, & he's quoting a case about Govt ministers avoiding affidavits/witness statements. "This case cries out for an answer in a witness statement for the allegations against the PM. In the absence of such, one may infer motivations." 16/

In other words, suggestion is that the PM won't provide a witness statement because he wouldn't have a sensible reason for his decision to prorogue when cross-examined. Guilty until proven innocent, on a balance of probabilities. 17/

Back to arguing that the Scottish Inner House was correct in their conclusions. Court should also be prepared to draw inference as to PM's motives due to the lack of affidavits supplied. Length of prorogation dwelt on. PM would need to satisfy court about improper motive. 18/

Onto point 2. PM used prerogative power for improper purpose, i.e. to stop Parliament from undermining his #Brexit negotiations. I'm pretty sure PM would argue that Parliament undermining Brexit is improper. We're back to bundlemania. 19/

Pannick inviting Court to proceed with reference to principle in the absence of previous case law. Plenty of references to case law. One of the Justices pushing back on Pannick's emphasis on lack of affidavits. Pannick referring to duties of disclosure. 20/

"If the inevitable effect is to frustrate Parliamentary procedures, the motivation may be to inferred in the absence of affidavits." "Very damaging impact on the ability of the legislature to scrutinise the actions of the executive." 21/

Justice summarises: Miller argument is impact on Parliament's ability to scrutinise executive. Pannick agrees. Another Justice: Do we have evidence as to impact? Pannick: As Parliament is closed, no questions can be asked of Government. Bundlemania again. 22/

More questions from Justices about lost Parliamentary business, e.g. Bills that can't be progressed due to prorogation. No evidence submitted on that. Seems that Miller case focus is, funnily enough, purely about #Brexit scrutiny. Pannick on the back foot, unusually. /23

It ought to be mentioned that one of the Justices, Lady Hale, had a keen interest in the passage of 2 Bills, on no-fault divorce & domestic violence. Neither got carried over. Obvious that the laser focus on Parliamentary function is only on stopping PM's #Brexit plans /24

Now onto constitutional principle of common law underlining Parliamentary sovereignty. Back to the bundles, this time the original Miller case. UK constitution not entirely in a written document. UK constitutional democracy; courts have a duty to enforce constitutional law. /25

Pannick: Executive is the junior partner to Parliament's senior partner in matters constitutional. Q is can the junior partner avoid/remove scrutiny? Prerogative powers made subject to democratically elected legislature as the sovereign body. /26

Which is a long-winded way of saying that Inner House agrees with the Miller case that Parliament is sovereign & ministers can't use prerogative powers to remove Parliament's powers. Argument is that proroguing Parliament did just that. /27

Justice: Parliament could have dealt with this by a VoNC in the Government. "If Parliament held its hand, should courts intervene?"
Pannick: Political solution is irrelevant. Court is only judge on ministerial conduct on points of law. /28

Pannick now citing Erskine May. Goes on to dismiss lengths of prorogation in early 20th century; insists that this prorogation driven by intent to avoid Parliamentary scrutiny.

Moving on: justiciability. Is it an invalid use of power with inevitable effect to avoid scrutiny? /29

Pannick: "Misconceived that exercise of prerogative power involves matters of high policy; usually about mundane matters." "No need for court to determine duration. Issue requires only to determine if purpose was legally impermissible." /30

Justice asking for authorities on what are the limits of review of prerogative power. Possible that certain Justices not convinced by part of Pannick's submissions, need more evidence, less academic theory. More bundle references provided. "Courts police prerogative power." /31

Justice now querying Pannick's argument regarding "inevitable effect" clause. Pannick: case is that it's implicit in power to prorogue that it won't be used to remove Parliamentary scrutiny except for a legitimate objective. 5 wks has intention/effect of frustrating scrutiny /32

Can legitimate purpose include obtaining political advantage? Pannick: Not if intent is to avoid scrutiny. Justice: seems to be accepted by both sides in Cherry case that political advantage is legitimate purpose. Depends on political advantage. /33

Pannick now diving back into the bundles for his authorities. Quoting sections that support his skeleton argument. Argues that *this* prorogation is justiciable, i.e. that courts can rule on a point of law relating to it. Conversation between Pannick & Lady Hale on cases. /34

Pannick still going strong on authorities. "Authorities" in court terminology are cases where the judgements are seen as contributing to case law precedents for future cases. In other words, an authority is a case which can be quoted to support his argument. /35

Pannick: "It's necessary to identify by reference to common law, constitutional law, principles as to how these powers have been conferred. We're only concerned with the circumstances of this case. Court isn't assisted by dissolution prerogative power." /36

"If this is not a justiciable issue, my friends need to consider what would happen if another government decided to prorogue Parliament for 6 months/a year." "My friends" is barrister speak for the respondents' barristers.

Pannick finishes his submission. Lunch till 2pm /37

To wrap up this morning's proceedings, Gina Miller's team want the courts to decide whether 5 week prorogation = too long & solely to frustrate Parliament's scrutiny of #Brexit plans, or whether PM used powers within legal limits.

Afternoon session on new thread /END

Afternoon session thread can be found here:

https://twitter.com/annaellis_net/status/1173943808423268354

@threadreaderapp unroll please