Thread by @Raphael_Hogarth

And we're off. Lady Hale says that the judges will consider the issue of prorogation in line with their oaths: without fear or favour, affection or ill will. She notes that the question is not whether or when the UK will leave the European Union.

https://twitter.com/Raphael_Hogarth/status/1173682810151940096

Lord Pannick kicks off for Gina Miller, the claimant who challenged the Government's prorogation in the courts of England and Wales. He says he will make submissions on three matters:

Pannick point 1/3: PM advised HMQ to prorogue Parliament for 5w because he wished to avoid what he saw as the risk that Parliament would frustrate his policies.

Pannick point 2/3: A power may be exercised only for a proper purpose. This applies to the prerogative power to advise prorogation, just as to any statutory power. Avoiding the risk of Parlt undermining his policies is an improper purpose. This flows from parly sovereignty.

Pannick point 3/3: this is justiciable. Whether a power has been used for a valid purpose is a legal, not political, question. The court is not being asked to specify a valid period, or a valid purpose, for prorogation - but whether this prorogation was in the scope of his power.

Pannick: HMG says, first, that there are no legal rules re when Parlt sits, and duration between parly sessions. But we're not asking the court to lay down any such rules. Duration is important insofar as the exceptional length here is *evidence* that the PM's motive was improper

Pannick: Government also refers to statutory rules, but none of those statutory rules affects the common law power and duty of the court to ensure a prerogative power is not exercised for an improper motive.

Pannick: HMG says this is academic, because Parlt legislated between 3 and 9 Sep, and can do so again from 14 October if it wishes. But
1) that doesn't go to the PM's purpose,
2) in any event, it's not academic. Parlt may want further legislation, debates, questions, scrutiny.

Pannick: HMG says there is no precedent for judicial review of this power. We say there are precedents establishing the relevant *principles*. It just hasn't been necessary yet to apply those principles to the prerogative power of prorogation, because this abuse is unprecedented.

Lord Carnwath: are there any precedents, anywhere in the common law world, on prorogation specifically?
Pannick: not that we know of.

Pannick says that HMQ has no discretion in practice, and cites Rees-Mogg on the Today programme saying the same. The claimants make no criticism of HMQ.

Pannick: turn to the first issue. Look at the facts. We agree with the Inner House of the Court of Session: the PM has made clear that the UK will leave the EU on Oct 31. The PM has no majority in the Commons for this. He gives no reason for particularly long prorogation.

Pannick, for Gina Miller: Look at the PM's interview with @SamCoatesSky. PM, asked about prorogation: "Just to get back to Parlt, I'm afraid that the more our friends and partners think... that Brexit could be stopped... the less likely they are to give us the deal we need"

@SamCoatesSky Pannick, for Gina Miller: look at this quote from PM. This is strong evidence as to the PM's motive in deciding to close Parliament for five weeks during the negotiating period.

bbc.co.uk/news/uk-politi…

@SamCoatesSky Pannick, for Gina Miller: note, when considering PM's motive, that he has not made a witness statement explaining why he advised HMQ to prorogue for 5w. If he didn't want to do it, the Cabinet Secretary could have done it. But all we have is documents from the Treasury solicitor.

@SamCoatesSky Pannick, for Gina Miller, points to this dictum of Lord Justice Beatson in the Das case. At best, from PM's point of view, the evidence is ambiguous as to his motive in proroguing. Without a witness statement to answer the allegations on motive, the court should infer an answer.

@SamCoatesSky Pannick, for Gina Miller: in the GCHQ case, HMG said the impugned decision was made on basis of "national security" considerations. Sensitive though that was, HMG still needed to supply evidence. Points to the dicta of Lord Scarman (left) and Lord Roskill (right).

@SamCoatesSky Pannick, for Gina Miller: overall our submission on the facts is that, but for the PM's wish to avoid parliamentary control, he would not have recommended to HMQ a prorogation as long as 5 weeks. He would have recommended a shorter one, in line with precedents.

@SamCoatesSky Pannick, for Gina Miller: onto second submission, from the facts to the law. For the PM to advise a five-week prorogation to avoid Parliament undermining his negotiations is to use prerogative power for an improper purpose.

@SamCoatesSky Pannick, for Gina Miller, points to the Padfield case, and these famous dicta by Lord Reid on how to control statutory powers. Also notes that in that case there was no clear precedent - the court proceeded by reference to *principle*.

@SamCoatesSky Lady Hale: might the lawfulness depend on the *effect* of the prorogation, even if the *motive* was fine? Note this bit of the dictum from Padfield.

Lord Pannick, for Gina Miller: we put the case in both ways - unlawfulness arises from both purpose and effect of prorogation.

@SamCoatesSky Question from the bench: do we have evidence that parly questions were put down and not answered because of the prorogation? Pannick, for Gina Miller, says he'll check. Points to @woodstockjag's report to support the basic idea:

@SamCoatesSky @woodstockjag Pannick, for Gina Miller, is asked by Lord Carnwath whether there is evidence of bills lost as a result of prorogation. He says he'll check. Lady Hale says this would be of "great interest". [He might find this from @instituteforgov handy - instituteforgovernment.org.uk/explainers/car…. ]

@SamCoatesSky @woodstockjag @instituteforgov Pannick, for Gina Miller: for a statutory power, the court works out the purpose for which the power may be used by construing the legislation. For a prerogative power, it's more complex but not different in principle: the court still identifies proper purposes.

@SamCoatesSky @woodstockjag @instituteforgov Pannick, for Gina Miller, points to @ProfMarkElliott's analysis. No government power is unfettered, he says. In construing a statutory power, the court refers to the broader legal and constitutional principles. It should do the same for the prerogative.
publiclawforeveryone.com/2019/09/12/pro…

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott Pannick, for Gina Miller, is now reading out most of the blog. A legally unfettered power, he says, would be "incompatible with the nature of parliamentary democracy"

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott Lord Carnwath: understand the principle, but it would be comforting to have some authority! Pannick restates the principle. Turns to Paul Craig. If HMG is right, then "then every text book [...] has missed this crucial qualification" to parly sovereignty.

ukconstitutionallaw.org/2019/09/02/pau…

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott What is the principle at stake, asks Lord Pannick (for Gina Miller)? He turns to this paragraph from the High Court's judgment in the first Miller case on Article 50. The point he is making here, in essence, is that constitutional law is law.

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott Pannick, for Gina Miller, now goes to this section of the Supreme Court's judgment in the first Miller case. Ministers must exercise their powers in a manner compatible with both statute *and the common law*. Also refers to passage saying that Parliament is the "senior" partner.

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott On why Parliament is the senior partner and the executive the junior partner, Pannick points to this passage from the Bancoult case. .

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott Also cites Lord Browne-Wilkinson in the Fire Brigades Union case: "The constitutional history of this country is [...] of prerogative powers being made subject to the overriding powers of the democratically elected legislature as the sovereign body."

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott Many of these cases, says Lord Pannick for Gina Miller, relates to parly sovereignty in that exec cannot frustrate what Parliament has said. But has also been used in cases re privilege and, in UNISON case, as foundation for general constitutional principle of the rule of law.

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott The concept of parly sovereignty is not confined to cases where the executive ignores or frustrates an Act of Parliament, says Pannick. It must also apply to cases where the executive takes a decision with the purpose or effect of removing the ability of Parliament to legislate.

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott Pannick, for Gina Miller, turns to another Paul Craig blog to explain why prorogation is "more far reaching" in its impact on sovereignty than previously decided cases, not less.
ohrh.law.ox.ac.uk/prorogation-co…

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott Pannick, for Gina Miller, is asked whether the courts should intervene when Parliament has declined to pass a vote of no confidence in the Government.

Pannick: exec is answerable to Parliament in matters of politics, but to the court in matters of law. Confidence is immaterial.

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott Pannick, for Gina Miller, also points to this dictum from the Fire Brigades Union case. We should not blur the arguments of politics with the arguments of law, Pannick says. In any judicial review, HMG could respond: we are answerable to Parliament. But it's legally irrelevant.

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott Apologies- brief break in service to take a couple of calls. This is what I missed, covered brilliantly by @RobertCraig3

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott @RobertCraig3 Pannick: I am not challenging the existence of a power to prorogue. But PM is not entitled to prorogue for period so long that it will have the effect/purpose of frustrating the constitutional principle of parliamentary sovereignty and supremacy over the executive.

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott @RobertCraig3 Pannick, for Gina Miller, is asked whether political advantage is a proper purpose or not. Pannick says: depends on the sort of political advantage. Not if the political advantage is the avoidance of parliamentary scrutiny. It's legit for PM to say "it's time for Queen's Speech".

@SamCoatesSky @woodstockjag @instituteforgov @ProfMarkElliott @RobertCraig3 Popping down to the court to chat to broadcasters briefly - follow the excellent tweets of @RobertCraig3 if you're looking to follow the rest of the morning session!