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Day 2 of the Supreme Court hearing on prorogation of Parliament. Yesterday's threads can be found here: THREAD 1/
This morning, the QC for the Government's case will be submitting his skeleton argument (a summary which is supported by evidence, case law, affidavits etc in folders known as bundles). This afternoon, it's the turn of the QC representing the 78 Parliamentarians in Cherry case 2/
Yesterday, we heard from the teams that *lost* the cases that are being appealed to the Supreme Court. That's because in appeals, those doing the appeal go first. Pannick spoke for the Miller case, which lost in High Court; Keen argued for Govt which lost Scottish case. /3
For those watching the livestream, here is a diagram of which judge sits where:
Eadie QC, for the Govt, is out of the gate with a statement on prorogation. "The power to prorogue has been reserved, by parliament, to the government and is not limited by legislation." Discussion between the Justices & QC on justiciability (whether court can rule on power). /5
Eadie: "Prorogation is not justiciable if it is a political matter." There's a distinction between legislative & political matters. Sovereign will always act on advice of PM. Not constitutionally appropriate for courts to rule, fundamentally based on separation of powers. /6
Justice: "It's for the Court to decide what the limits of prerogative power are. Those powers are constrained by fundamental principles." Eadie agrees & suggests that's why Pannick's emphasis on rule of law doesn't help the Miller case. Further discussion. /7
Justice now referring to 5th Intervener's most recent response. That would be Chakrabati.

Eadie now expanding on his introduction. Justiciability depends on the subject matter; some may be unsuitable for judicial intervention. Proceeds to respond to points raised by Pannick. 8/
Eadie argues that Pannick's case is too broad, separation of powers fundamental to rule of law. Prorogation, by its nature, is a political act because political judgements are inevitably involved, including how to secure government's agenda. 9/
Both Govt & opposition have their own agendas. Ultimate control rests with Parliament, including VoNC, 2/3 majority for GE, etc. & Parliament can amend legislation as required.
Justice: Are we being asked to determine where political decision collides with principles? 10/
Justice: Referring to Legal Principle of Parliamentary Sovereignty. Does this collide with that principle, that Court is legally bound to uphold.
Eadie: Depends on what aspect of Parl Sovereignty we are dealing with. Parl can make/unmake own laws. 11/
Eadie: We need to be exact about the particular element of Parl Sovereignty we are discussing.
Justice: What if PM decided to prorogue for 1 year?
Eadie: That's the challenge from Pannick yesterday. Extreme example. Need to be cautious about testing law against extremes. 12/
Justice: If there was a statutory requirement for Government to be sitting on a certain date, the courts could intervene if Govt acts illegally contrary to statute.
Eadie: Yes, Court would be enforcing primary legislation. 13/
Eadie: Current session was over 2.5 years long; common law can't regulate scheduling of Parliamentary proceedings. Certain Parliamentary matters are covered in existing legislation.
Justice wants him to cover Section 3(2a) mentioned yesterday. 14/
Eadie: Before FTPA, courts had previously ruled that dissolution of Parliament was non-justiciable. Referring Justices to bundles, with the inevitable kerfuffle. Justice questioning whether HMQ had read the HoC briefing paper on prorogation. 15/
Justice: Pannick states no checks & balances, if Court doesn't intervene, PM acts with no outside control.
Eadie: Position in relation to personal prerogative of Sovereign is matter of uncertainty.
Justice now questioning Govt's position on HMQ's prerogative power. 16/
Further discussion around Pannick's argument & prerogative powers of HMQ. Suggestion that courts better placed to police constitutional protections; Eadie's case is that constitutional protections should be controlled by Parliament, not courts. 17/
Justice requests chronology of events in August around decision re proroguing. Tbh, surprised neither side provided one. Again, shows focus purely on Parliamentary scrutiny re delaying #Brexit. 18/
Eadie: This is not a context about "rights". Pannick's argument: Courts must rule on Parliament being able to sit when required. This case on a narrower focus - proroguing to avoid risk of Parliamentary scrutiny. But proroguing always limits Parliamentary debate. 19/
"Pannick not attacking prorogation per se, attacking this prorogation, of this length, at this juncture. Period should not exceed that which is appropriate for its purpose. That is the focus of this judicial intervention." 20/
Lady Hale: Automatic effect of prorogation is that bills fall. If bills are carried over, they carry on from previous stage; if they fall they start again. Reminder that both Domestic Violence & no-fault divorce Bills fell on prorogation. Fell = cancelled. 21/
Public Law Project (an intervener) has claimed 5 #Brexit Bills have fallen completely. Eadie: "If time-critical pieces of legislation need to be passed, Parliament has proven it can pass those Bills quickly. 3 (non-Brexit) Bills carried over." (2 day Cooper-Letwin, anybody?) 22/
Eadie: Courts judge will of Parliament by what legislation is passed, doing it any other way leads to uncertainty. Impossible for Court to judge how much time Parliament needs to scrutinise Govt #Brexit plans. How can courts judge relevance, purpose in political matters? 23/
Eadie: There's no external yardstick to measure the focus on #Brexit scrutiny & PM's decision to prorogue. Referring to Ayr (sp?) Centre case. Bundles kerfuffle. Case about exercise of common law powers vs. statutory powers. 24/
"This isn't just about court adjudicating about length of prorogation. Deeper problem - lack of standards against which to test judicial review controls. Normally impingement on rights = assess impact of policy vs impact on rights. Tools for invention of standards lacking." 25/
Eadie: "How is this court to determine whether, & to what political advantage, points are relevant? If assertion is some OK, some not, how does court determine which are good/bad?" Describes 1949 prorogation as shenanigans. 26/
Justice: Want chronology. What controls are available to Parliament?
Eadie: Prior to proroguing - legislation, prior/after - VoNC.
Justice: What about time sensitive issues?
Eadie: Parliamentary control was exercised & can be exercised on/after October 14. 27/
Eadie mentions extension provision legislation. Parliament has sufficient time for scrutiny.
Justice: What about checks & balances on proroguing?
Eadie: Sidesteps implied question, widens it to encompass *all* Parliamentary business. 28/
Justices still questioning the Pannick suggestion relating to length of prorogation. Eadie maintaining that prorogation is a political matter & governments will state prorogation reasons for political purposes. Could have "double prorogation"; multiple contexts. 29/
Eadie: Is it appropriate for Court to design the set of rules that bind prorogation decisions? Govt case is that it's for Parliament to control prorogation decisions through legislation as it already does. Section 3 NI Act 2019 latest example. 30/
Section 3 covers recall of Parliament during prorogation between Sept & Dec 2019. Clearly written with #Brexit negotiations in mind. Enacted in July 2019. Parliament could have used that section, it has not. Not for Court to impose additional controls. 31/
Centrepiece of Miller claim related to Parliament legislating specifically to prevent #NoDeal #Brexit. Parliament took opportunity to legislate, did so in new Acts, covering exit with/without Deal. 2 Qs: How is Court to determine how much more time needed, how appropriate? 32/
Eadie: Could have added provision to latest Withdrawal Act re Parliament sitting/recall during this prorogation. Parliament chose not to add provision per Section 3 NI Act 2019. Back to bundles to deal with Section 3, reports. 33/
Justices & QC discussing Section 3. Reports still within law if laid before Parliament on October 14.

Extended prorogation scenario dealt with. Govt argues Miller case specifically focused on 5 week prorogation. Pannick seeks to identify standards for Court to rule. /34
Eadie: Pannick's reliance on Parl sovereignty *as a phrase* doesn't help his case here; requires Court to intervene & redesign & apply principle to determine when & how long Parliament should sit. Separation of powers is key. No support in case law. /35
Eadie: Parliament has been considering #Brexit for years. It has had the opportunity to create legislation relating to #Brexit & has done so. Context of prorogation: Parliament sat prior to 9 September & will sit from 14 October. /36
Discussion of recess motions. Queen's Speech debate typically takes 5 days. No mention of fact that Parliament can (& prob will) spend those 5 days making the debate all about #Brexit. Now discussing prorogation timings; Eadie refers to Major's prorogation. 37/
Discussion on facts = talking about evidence, affidavits, chronology etc.
Discussion on law = talking about legislation, case law authorities, etc. 38/
Eadie: Inner House judgement that PM motive was to stymie Parliament (improper purpose) is untenable. Not supported by evidence.
Justice: No affidavits from Govt. Isn't it odd that nobody signed affidavit to say "this is true"?
Eadie: Court rules on documentation produced. 39/
Justice: How unusual is it to have affidavits in judicial review?
Eadie: Typically, have a covering affidavit; never experienced minister providing affidavit; uniformly not common practice. Cross-examination of affidavit is a feature of judicial review. 40/
Eadie now discussing contents of da Costa memo about timing of prorogation. Govt intensely prepping for "full raft of new policies & legislation" in new session, as well as ongoing #Brexit preparations. Impossible for Court to determine length of prorogation & not appropriate 41/
Discussion about political advantage of prorogation. Even if motivation for length of prorogation is political advantage, that's not unlawful. Parliament has control per previous discussion. End of Eadie's submission. 42/
QC on behalf of Cherry case has seriously poor microphone control. A very rambling style so far, for some reason discussing the Spycatcher case atm. Scottish ministers have previously provided affidavits on governmental matters. Personal decisions require witness statements. 43/
And we're awa tae lunch! Back at 2pm with another thread on what promises to be a rather interesting delivery from O'Neill QC for the Cherry case plaintiffs. /44
Afternoon session for Day 2 can be found here: /END
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