, 25 tweets, 7 min read Read on Twitter
As Day 2 of #SupremeCourt prorogation hearing starts, here is the link to the Prime Minister’s written case.

Terrific job being done by ⁦@UKSupremeCourt⁩ staff to keep proceedings as transparent and accessible as possible. supremecourt.uk/docs/written-c…
Essence of Sir James Eadie’s arguments for govt is there are no judicial & manageable standards against which PM’s advice to HMQ to prorogue can be assessed, & that it is not constitutionally appropriate for the courts to seek to do so, since political resolution, not judicial.
Ct (Lord Kerr) asks whether Eadie accepts it is for the court to determine what the limits of the extent of prerogative power are.

Eadie says yes.

Q: Do you also accept that prerogative powers are also constrained by overarching fundamental rights?

A: In some circs, yes.
This is a potentially revealing line of question from the Court here.

Lord Kerr persists - so there are constraints to the power & it is the purpose and role of the Court to consider what constraints are & whether they have been exceeded?

Eadie doesn’t deny this.
Ok, bang. Here’s another straight away, and it’s nutshell.

Lord Kerr: Would you accept the exercise of power to prorogue Plmnt has potential to affect or undermine Plmnt’s ability to carry out its constitutional function of holding the executive to account?
Eadie’s response to that question is skilfully evasive:

“By definition, prorogation has the effects that it has.”

(A cheeky aside is that the answer sounds a bit like Brexit is Brexit).

Eadie then reverts to his key point of constitutional propriety of court intervention.
Not following the entirety of the #SupremeCourt proceedings - dipping in and out only today between work commitments.

Please do follow @BBCDomC @JoshuaRozenberg @Raphael_Hogarth @UKSCBlogcom who are covering.
Just picked up Lady Hale who is asking again about the effect of prorogation on Bills which are not carried over. She notes that some may be time critical legislation.

How will the Court factor lost legislation into its analysis? The impact of Plmnt not being able to do its job.
Lord Wilson asks whether Govt challenges that 5 Brexit Bills have fallen completely & “a mass of delegated legislation” has got to be in force by 31st Oct & conseq impact.

Lord Sales follows up on likely need for that delegated legislation but likely passage without scrutiny?
That exchange on the legislation lost by prorogation took place in the context of @publiclawprojct intervention & evidence as to the effect of prorogation on critical legislation.
Very interesting interventions by Lady Black - in short, she asks how can Parliament control misuse of prorogation if Plmnt is not able to act?

In a time sensitive setting, how does ‘afterwards’ help?

Again, pretty nutshell, this.
Again with skilful evasion, Eadie: If the thing is time sensitive, Plmnt has to react in the time left before the time sensitivity runs out.

Another ‘Brexit means Brexit answer (cheeky aside, see earlier) but relies, I think, on Ct buying justiciability point wholesale.
Eadie under some pressure with Court questions here on the check and balance of the proroguing itself.

Lord Kerr and Lady Black coming back for more here. How does it help to control *afterwards*?

Eadie falls back on the sufficiency of Plmnt control before & after prorogation.
Lots of awkward questions from the Court.

Eadie’s response is, almost shoulder shrugging, “this is political territory.”

Says govt can double prorogue Plmnt if it wants.

NB, court interventions are illuminating but won’t necessarily tell us what they will conclude.
Lord Wilson now wades into the PM’s failure to provide a witness statement:

We are just given the documents, floating around, for what they are worth. The whole truth, nothing but the truth, partly true. They are just floating around.
Lord Wilson: Isn’t it odd that nobody has signed a witness statement to say these are the true reasons?

Remember Lord Keen yesterday saying the documents speak for themselves? #Cherry

(Well, be careful what you wish for...)
And another one of those (Brexit means Brexit) responses from Eadie;

“My Lord, you have the witness statement you have.”

( That of Treasury Solicitor).

To be fair, not sure what else he can be expected to say here.
“My Lord is right, you don’t have a witness statement of the kind you traditionally would do.”

That’s definitely squeaky bums being heard in the Court microphones. What else can Eadie say?
Now two sets of opposing judicial interventions.

Lord Carnwath concerned at Pannick’s suggestion PM might have been cross-examined in context of JR. Say not always straight forward how evidence would have been dealt with in JR context.

Lord Kerr expresses another viewpoint.
Lord Kerr: Govt only produced documents which pre-date allegations of true motive. Entirely conventional & to be expected that a statement would be made saying docs contain the only explanation for prorogation. No explanation as to why that conventional course not followed.
Kerr: Is it accepted there was a political advantage to the govt by proroguing for 5 weeks?

Kerr pressing home that the period for Parliamentary scrutiny in the critical period leading up to Brexit is reduced. Can it be otherwise that this is political advantage for govt?
Eadie: yes, a clear space not subject to daily grind re Brexit & to prepare Queen’s Speech.

Eadie forced to concede it could be a political advantage “in theory”.

Kerr asks if the govt’s position is that it is a purely incidental benefit.

Some real pressure on Eadie here.
It may be a relief to govt lawyers to be moved on to questions of “relief”, ie what is the remedy, if the govt loses.

But the nature & depth of qs on remedy may not feel much relief after a morning session in which, despite his skilful advocacy, Eadie has been under pressure.
That’s it for the govt.

Aidan O’Neil QC responding for @joannaccherry at 2pm.

I can’t join then - plenty of others tweeting. Here’s a snapshot from @davidallengreen of what’s to come.

And here’s the link for O’Neill QC for @joannaccherry written response this afternoon. supremecourt.uk/docs/written-c…
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