Eadie says yes.
Q: Do you also accept that prerogative powers are also constrained by overarching fundamental rights?
A: In some circs, yes.
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.
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?
“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.
How will the Court factor lost legislation into its analysis? The impact of Plmnt not being able to do its job.
Lord Sales follows up on likely need for that delegated legislation but likely passage without scrutiny?
In a time sensitive setting, how does ‘afterwards’ help?
Again, pretty nutshell, this.
Another ‘Brexit means Brexit answer (cheeky aside, see earlier) but relies, I think, on Ct buying justiciability point wholesale.
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.
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.
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.
Remember Lord Keen yesterday saying the documents speak for themselves? #Cherry
(Well, be careful what you wish for...)
“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.
That’s definitely squeaky bums being heard in the Court microphones. What else can Eadie say?
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.
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 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.
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.