Thread by @WomaninHavana

Whatever the ultimate conclusion of the @UKSupremeCourt hearing on justiciability, this is a significant point for starters.

The failure of the Prime Minister to provide a witness statement means the factual findings of the Court of Session are unlikely to be disturbed.

https://twitter.com/JoshuaRozenberg/status/1173893503891464192

In another age, those factual findings (which were damning of the Prime Minister’s reliability and credibility), should have been enough to trigger his resignation - whether the underlying judicial review succeeded or failed.

Watch this space.

Lord Pannick now making the stt point - A Court may draw adverse inferences of fact against a party where no witness statement produced. Obligation owed to Ct by a public authority to cooperate and make candid disclosure of relevant facts & reasoning behind reason challenged.

Court addressing question of adverse inferences to be drawn from absence of witness stt.

Pannick: Modern public law strongly influenced by development of duties of disclosure and recognition that Minister can be expected specifically by evidence to address a complaint.

Lady Hale: Important part of this case is the distinction between parliament adjourning, going into recess and prorogation. Important feature of prorogation is that bills currently under consideration are lost & it would be of great interest to us to know which bills are lost.

In response to Lady Hale; there are 13 significant bills that have been lost by prorogation, set out here; including on domestic violence, divorce and important Brexit legislation including on trade & immigration. #SupremeCourt

theparliamentaryreview.co.uk/news/prorogati…

Another useful primer on legislative bills lost by prorogation, in response to Lady Hale’s question:
bbc.com/news/uk-politi…

Pannick: Basic principle is Parliament is supreme. The junior partner, the executive, cannot validly use its constitutional powers from preventing the superior body from performing its constitutional functions, esp when that function is the scrutiny of the junior partner.

In response to Ct Q: Pannick says no answer, if PM advice to HMQ was unlawful, that there could have been a Vote of No Confidence or other political solution.

Says o/w could always be the answer to a judicial review, eg Unison case (on employment tribunal fees) or Miller (no1).

If you have just joined, here is a link to @thatginamiller’s legal argument, currently being made by Lord Pannick & legal team on her behalf. supremecourt.uk/docs/written-c…

In response to Ct Q:

Pannick: Not challenging the existence of *a* power to prorogue. But implicit in the power to prorogue is that it will not be used in such a way to remove Parliamentary scrutiny other than so far as reasonably necessary to accomplish a legitimate objective.

Ct Q: Can the legitimate purposes for which Plmnt is prorogued include the obtaining of a political advantage?

Pannick: Not if that political advantage is to remove the scrutiny of Parliament. That would be an impermissible purpose.

Pannick has turned to justiciability (ie can judges determine this q) after focusing primarily on PM intention & effect. He wants to Court to see the whole picture.

His key point is, as a matter of law, the PM cannot have a discretion as to the bredth of the powers he enjoys.

Pause for lunch time thought from Pannick: what if another PM wanted to prorogue for six months or a year?

How would the govt, & indeed the Court, respond to such a provocation?

Perhaps the nutshell question underlying this whole situation. What does the rule of law mean to us?

Not able to follow #SupremeCourt this afternoon.

Do follow @JoshuaRozenberg @BBCDomC @Raphael_Hogarth @Greg_Callus @RobertCraig3 @UKSCBlogcom & no doubt many others for further commentary.