Thread by @JoshuaRozenberg

It will be interesting to see whether the justices ask Sir James Eadie QC the questions they put to Lord Keen QC yesterday about how the PM would respond to a declaration that his advice to HM was unlawful. Might he seek to recall parliament and prorogue once again?

It’s also worth remembering that Sir James Eadie’s arguments were successful at the High Court in London a couple of weeks ago. Three senior judges held that the claim brought by Lord Pannick QC on behalf of Gina Miller was ‘not justiciable in Her Majesty’s courts”.

Sir James Eadie QC has been First Treasury Counsel (“Treasury Devil”) for 10+ years. He’s an independent barrister in private practice (at @BlackstoneChbrs like Lord Pannick) but is briefed only by the government of the day and argues the most important cases on its behalf.

Hearing resumes. Eadie kicks off with non-justiciability, a prerogative power that has been expressly preserved by parliament.

Eadie explains that parliament has passed some legislation on prorogation. But in areas where there is no legislation, the prerogative remains. That means it can be exercised by HM on the advice of ministers. It does not follow that it is always subject to judicial review.

Eadie: whether the exercise of a power is reviewable depends on its subject-matter, nature and context. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.

Eadie currently citing decided cases — Gibson, Wheeler, McClean — from which he infers that rationale for courts refusing to enter the political field flows from the limits on their ability to apply judicial or manageable standards to decide lawfulness of exercise of prerogative

Eadie: second rationale for courts refusing to enter the political field flows from considerations of constitutional propriety, having regard to the separation of powers: Shergill v Khaira [2015] AC 359

Hale points out that the proposition just cited is “obiter” to the Shergill judgment and therefore not binding. Eadie has to accept this. “There is obiter and obiter,” he says.

Eadie is disagreeing with Pannick on the breadth of justiciability. Eadie says a power is not judicially reviewable just because it is the exercise of executive power, as he says Pannick had argued.

Eadie: decisions about prorogation are inherently political and therefore non-justiciable. This is the terrify of political judgments not legal standards.

Lord Wilson: is this about political decision or defending a precious constitutional principle, parliamentary sovereignty?

Eadie: what does it mean in this context?

Lord Kerr: what if a PM wanted to stifle debate by proroguing for one year?

Eadie: be very careful about establishing principles by testing them against extreme circumstances. There are political controls based on the need for it to sit

Eadie: the common law can not regulate the scheduling of parliamentary proceedings. These are ultimately legislative judgments and there are occasions when parliament has legislated to sit while prorogued. See the recent Northern Ireland Executive Formation etc Act 2019.

Lord Sales: if there are constitutional provisions to be enforced, shouldn’t it be for us to decide rather than for the Queen?

Eadie: yes, but these are matters for political control involving ministers.

Eadie: Pannick says the court must ensure parliament is not prevented from sitting and holding debates.

That’s what prorogation means. Bills fall as a result.

But that has nothing to do with the length of a prorogation. Bills can be reintroduced.

Lady Hale asks about carry-over bills. She asks how many have been carried over this time. More than one, Eadie is told.

Lord Wilson: five Brexit bills have fallen, together with a mass of delegated legislation?

Eadie: we’ll check the details. But parliament can act quickly.

Lord Sales: a lot of secondary legislation is needed for Brexit and parliamentary time is limited.

Eadie: three bills have been carried over to the next session.

Eadie: the court normally identifies the will of parliament from enacted legislation. But how can you decide what legislation parliament would have enacted here? This takes the court into political controversy. How can you say parliament has not had enough time to legislate?

Eadie: there are no standards against which you can test this decision. How can you assess the impact of this policy on individual rights? The tools for the invention of standards are lacking.

How can you decide which political advantage points are relevant or legitimate?

Eadie: the 1949 prorogation was a good example of legitimate political advantage.

Lady Black: how can parliament control prorogation?

Eadie: it can do so before (eg legislation) and afterwards (eg motion of no confidence).

Kerr presses Eadie on after-the-event controls. Eadie says parliament has some 17 days after it returns. Black presses her point. Eadie says that even if it’s time-critical parliament is left with enough time.

Eadie: recent events show that parliament has the opportunity to legislate as it chooses. The recent Northern Ireland Act, section 3, shows that parliament can control sittings when it wants to do so. You are being invited to impose additional controls to those in section 3.

Eadie: there is now primary legislation on a no-deal Brexit. How can the court say how much more time parliament needs? Parliament could have blocked prorogation by legislation if it chose to do so. it didn’t. “Queen’s Consent” is a matter for parliament to decide, not the courts

Eadie is now grappling with the Northern Ireland (Executive Formation etc) 2019. He argues that parliament does not need to receive a report before 14 October, despite what might have been thought.