Thread by @JoshuaRozenberg

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.

Pannick completes his submissions. If he can’t win this case, nobody can. But it’s very difficult to read the court, particularly at this early stage. We’ll hear the government this afternoon.

Lord Keen of Elie QC opens his appeal against the Court of Session ruling. He’s the Advocate General for Scotland, part of the UK government, and not to be confused with the Lord Advocate, He’s expected to deal mainly with the facts. Sir James Eadie QC will deal with law tomorrow

Keen, talking in legal Scots, asks the court to overturn the Court of Session ruling.

Keen QC: the Inner House (Scottish appeal court) accepted that the case did not turn on Scots law, such as the Claim of Right 1689.

Keen seems to be arguing that Scots law and English common law are the same on this UK issue.

Keen: so the different rulings in England/Wales and Scotland did not result from different laws in the two jurisdictions.

Keen: the Inner House accepted that there was a principle of non-justiciability.

He now turns to the order it made on 11 September, which said the prorogation was “null and of no effect”. This was a breach of parliamentary privilege under the Bill of Rights 1689, article 9.

Lady Hale suggests the court might not need to decide this rather complicated question.

Lord Kerr asks what would happen if the court declared prorogation unlawful. Keen says the PM would ask HM to recall parliament. Kerr: might the PM prorogue again? Keen: I can’t say.

Lady Arden and Lord Kerr question Keen closely about the procedural steps the government would take if the court declared the prorogation unlawful.

Keen: the power to prorogue parliament is not limited to preparing for a new Queen’s Speech. The Prorogation Act 1867 makes express provisions for a second prorogation period.

Lord Kerr: what was the purpose of prorogation in this case?
Keen: I’m going to come on to that.

Keen is now going through the examples of lengthy prorogations that Pannick dismissed as irrelevant. The 1949 one was for a party-political purpose.

Hale: but it was arguably to enforce the will of the Commons.

Hale is unpersuaded by Keen’s response (and his unforced error).

Correction:
Keen: the Scottish judges applied a political purpose test to prorogation. But you can’t test the propriety of a purpose if it’s not created by statute.

Lord Reed: what about the corrupt award of honours?

Keen: that could not be declared unlawful by the courts.

Keen is now arguing that the recent Northern Ireland (Executive Formation etc) Act 2019 does not require parliament to be recalled before 14 October The justices appear sceptical about Keen’s interpretation of the statute. Keen promises to get back to them.

Keen: parliament had the means to decide whether or not it would be prorogued by passing legislation. It’s not for the courts to intrude.

Keen: Although the Inner House judges acknowledge the principle of non-justiciability they have not applied it. They thought they could identify a purpose in the prorogation.

Keen argues that the PM’s reasons were apparent from the documents produced in the Miller litigation.

Keen: Lord Carloway, the senior Scottish judge, quoted the PM’s documents in his judgment. These include a memo from Nikki Da Costa dated 15 August, which Keen reads in full.

Wilson: do the documents explain why five weeks was needed?

Keen: because it included the conferences

Lord Wilson: what about Nikki Da Costa’s Spectator article of 29 June: “Will parliament be able to stop the next PM leaving without a deal?”

Would the court be entitled to consider that as background to her memo?

Keen: she working for a private company at that time.

Keen is arguing that there was no need for the PM to make a witness statement because the documents provided to the court spoke for themselves.

Lord Kerr: why did prorogation need to include the conference period.
Keen: I’m just coming to that.

Keen: Lord Drummond Young thought that parliament could reconvene itself during a recess. Lord Carloway thought so too. Brodie seemed to agree.

It cannot do that, says Keen. SO 13 says the Commons can be recalled only at the request of the executive and if in national interest.

Keen: Lord Carloway said that a total of seven sitting days would be lost So it’s not five weeks, as he says.

Lord Kerr: why seven days?

Keen: why not? How can a court decide this?

Lady Black: could parliament have been prorogued after the conferences?

Keen seems to agree.