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Gearing up for the afternoon session at the Supreme Court. This time, it's the Scottish team, also known as "the Cherry case". THREAD 1/
A thread on this morning's events can be found here: 2/
Quick summary of this morning's argument: Miller's QC ended by asked judges to consider what might happen, should they decide this prorogation was not justiciable, & a future government behaved like a dictatorship & prorogued for 6-12 months. 3/
Lord Keen QC, Advocate General for Scotland (part of UK Govt) starts off by referring to bundles, including the Scottish Inner House decision. Argues that Scots law = English law in this instance. Justiciability depends on the subject matter. 4/
Keen now arguing that the judgement that "prorogation is null & of no effect" is outside Inner House's remit. Parliamentary proceedings cannot be impeached in any court; courts may not intrude on Parliament. PM advice may be deemed unlawful without affecting prorogation. 5/
Discussion between Justices & QC about what exactly PM means by abiding by law. "If court finds advice unlawful, PM will take any steps required to address the decision of the court. Decision taking by HMQ cannot be impugned. Prepared to discuss with Pannick QC re wording etc" 6/
References to "the decision maker" are court terminology for the PM, btw. The focus of Keen's argument today is on the Inner House submission. Basically, they erred on the inferences they drew, which Lord Doherty was not prepared to draw in the original case. 7/
Inner House judges tried to apply definition of proper/improper purpose to PM's advice. Determination of those purposes depends clearly on identifying points of relevant statutes. This doesn't apply to prerogative power of prorogation. 8/
Not for the courts to determine length of prorogation. Back to the bundles. Court seems to have fewer issues finding correct page this time. Further discussion with Justices. Once prorogued, Parliament can be prorogued for at least 14 days more. 9/
Various assertions have been made as to purpose of this prorogation; they will be dealt with in detail later. Gentle dig at Pannick's dismissal of 20th century prorogation durations. Prorogation extension per 1867 Act doesn't apply to end of Parliamentary sessions. 10/
Listing duration of previous prorogations, many didn't relate to Queen's Speech delivery. Suggests that some were specifically to avoid scrutiny when the Govt of the day couldn't command the respect of the rest of the House (Parliament speak for Govt on ropes like now). 11/
Justices questioning as to whether those prorogations could be said to "enforce the will of the House of Commons against the House of Lords". Keen disagreeing with Lady Hale on that point. Those prorogations pursued a political objective. 12/
If Court follows Inner House decision, it will need to determine what are improper/illegitimate purposes. Some form of political purpose test will need to be created. Without a statutory scheme, no way of knowing what is proper/improper. Some discussion with Justices. 13/
If matters are brought as civil claim/criminal case, there are remedies that exist within case law/legislation. Parliament can address when it doesn't wish to be prorogued by passing primary legislation. Limits on exercise of prorogation set by Parliament, not courts. 14/
More legislation being cited. "In each case, Parliament applied controls on limits of prorogation by executive. Section 3, NI Act 2019, amendment introduced a mechanism to provide Parliament to be recalled between Sept & Dec 2019. Clearly had in mind Oct 31." 15/
"Had Parliament not wished to be prorogued for a period longer than specified in Section 3, it could have said so." Discussion of Section 3 report schedule; report is deemed to be laid when Parliament returns on Oct 14, not Oct 9 as specified. 16/
Justices & Lord Keen still discussing Section 3. Parliament must have contemplated/been aware of being prorogued between Sept & Dec 2019 otherwise wording of Section 3 makes no sense. Significance: If Parl doesn't want to be prorogued, it's determined by primary legislation. 17/
Parliament clearly considered prorogation likely in July when it passed NI Act; it had means to influence duration of prorogation. Plus, Parliament proved with latest 2 day Bill that it could force legislation through to stymie Govt procedure. 18/
Courts should not get involved & overlay primary legislation with ruling on duration or validity of prorogation.

Back to Inner House decision. FTPA preserves prerogative of prorogation. If prorogation need legitimate political consideration, how does court rule? 19/
Justices & QC continue discussing Inner House judgement. Keen reading key points from da Costa brief & redacted documents. Inner House judges assumed they'd identified an improper purpose in prorogation. Justices quote da Costa article prior to her job as Govt SpAd. 20/
Keen points out plenty of articles/blogs speculating on possible actions. Not the same import as specific advice from SpAd to Govt. Keen also states Inner House did away with requirement for affidavits & explanation for duration in both exhibits & Judges' opinion. 21/
With no gap in evidence, Inner House should not have drawn inferences. Justice: Inner House rejected exhibit in favour of "no rational/sensible reason" explanation.

Other flaws in Inner House judgement: claim that Parl in recess can recall itself (it can't; needs exec req) 22/
Speaker would need to decide recall in national interest. Much discussion about recall during Summer Recess and/or conference recess. Recess over 1st week in October & prorogation decision then = prorogation until 14 Oct anyway. HoL not in recess during conferences. 23/
Justice: Appropriate detail of da Costa's advice not referred to in Inner House judgement. Much advice as to timings, reasons etc. Keen continues: delivery of Queen's Speech earlier than 14 October would impact on SNP unavailability during key votes. 24/
78 Parliamentarians party to the Scottish case. 1st petitioner provided 3 affidavits; no suggestion in them that Parliament would not have gone into conference recess. Keen suggests fundamental misunderstanding by Inner House judges in how conference recess works. 25/
Lord Keen winds up. Congratulations on precision of submission timings by Lady Hale. Back tomorrow, same bat time, same bat channel. /END
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