Thread by @BBCDomC

Today we're starting with Sir James Eadie QC - the government's go-to-man in a tight spot. He's starting this morning on the government's strongest line of attack: Judges don't have the power to rule on the PM's power to prorogue Parliament.

Before I get to the arguments, we've already had a "which-bundle-of-papers-numbering-fumble" at six minutes. That's got to be a legal record of sorts.

Rather boringly I will be serious now. Sir James Eadie QC is taking the court through what the law says on the "justiciability" of the case - which means whether there is even a law that the PM can be said to have broken.

The Scottish Court of Session ruled the manner in which Boris Johnson used the PM's executive, or prerogative power, to ask The Queen to prorogue Parliament can be legally challenged. The English High Court (lower than the Scottish court) said it could not be.

In short, Eadie says Parliament has previously passed legislation governing some aspects of prorogation - but if there is no law that covers what the PM has done this time, then the courts cannot intervene.

That's a reference to "judicial review". This is the key concept underpinning the case - the power that has developed over time that allows citizens to ask judges to scrutinise how ministers have implemented the law.

In other words, if Gina Miller and Joanna Cherry QC MP cannot point to a specific law that the PM allegedly broke in the manner in which he closed down Parliament, the judges cannot say whether it was legal or not. That's what justiciable means.

Lady Hale, the president of the court, has had a laptop malfunction. 17 minutes. I hope law students are turning this into a drinking game.

Back to James Eadie. He says that a fundamental problem with the case brought by Ms Miller and Ms Cherry is that there are no "legal standards" that the judges can rely upon to decide whether the PM's five-week prorogation of Parliament if unlawful.

Lord Kerr, one of the most experienced of the justices, asks Mr Eadie whether he accepts that proroguing Parliament has the "potential" to undermined Parliament's role in holding the executive to account?

Eadie accepts that potential exists - because committees can't sit to scrutinise ministers if Parliament is prorogued. But he adds proroguing "is a well-established constitutional function exercised by the executive" (1/2)

... and how are judges supposed to assess whether a prorogation was legal when there's no clear law setting out how this very political act should take place (2/2)

Two important interventions from the justices. Lord Wison pushes James Eadie on whether they are really being asked to interfere in politics or uphold a “precious legal principle” - meaning Parliamentary sovereignty.

Wilson asks the government’s top man: "Is there anyone else better placed than us" to uphold parliamentary sovereignty? James Eadie, in short, questions whether Parliamentary sovereignty has been breached at all - it still has power to make and break laws.

Next Lord Kerr, the former chief justice of Northern Ireland, ponders: Let us supposed a PM wants to stifle debate and he decided to prorogue for one year…

Sir James Eadie, for the PM, acknowledges that was the “gauntlet thrown down” by Lord Pannick QC, for Gina Miller yesterday. He indicates he’ll say more on this later.

James Eadie has also referred the justices to three examples of seemingly unusual closures of Parliament that, he says, were perfectly legal. His point is that there are no hard and fast legal rules over how long Parliament should be prorogued. Screenshots to follow (1/3)

Prorogation examples (2/3)

And another - rather awkwardly over a page break (3/3)

Lady Hale hails the @commonslibrary Briefing on Prorogation.

researchbriefings.parliament.uk/ResearchBriefi…

@commonslibrary A strong question from Lord Sales, the latest addition to the Court, on the reasons for prorogation:
"If there are constitutional principles that are required to be policed, isn't it more appropriate for the court to do it rather than for the Queen to be sucked in?"

@commonslibrary Sir James Eadie: The constitutional protections are provided in the political arena - that is where the appropriate form of control [is to be found], not in the courts.

@commonslibrary V interesting exchanges in last five minutes. Lady Black asks PM's man James Eadie: If prorogation has removed Parliament from the picture, and courts have no role in this, how can Parliament apply a check & balance on the power used to close it down? (I greatly paraphrase)

Eadie replies that he acknowledges prorogation prevents Parliament sitting, holding committees and hauling ministers to the House to answer questions. But after prorogation they can resume that work and even go for a a No Confidence vote.

To which she replied: How does that help in a time-sensitive situation? When time has been lost? (remember, Parliament is prorogued until 14th Oct, Brexit scheduled for 31st) . Eadie says: Parliament can resume & do what it wishes and resume all the forms of control it had before

That exchange - and earlier intervention from Lord Sales - feel important. They both go to a wider concept of Parliamentary supremacy than the one the government is promoting.

The Government in essence is telling the court that Parliamentary sovereignty means the right to make/break laws and that’s about it. Opponents say sovereignty also means the right to take any steps necessary to hold an allegedly dodgy Prime Minister to account.

Sir James Eadie argues that the desire to ensure “responsible government” is not a legal justification for interfering with a PM’s power to close down Parliament.

“How do you determine the standard,” he asks. "What is responsible and what isn’t?"

Lord Kerr is pushing James Eadie, for the PM, yet again on the practical effect of the prorogation. He asks why Parliament could not have simply gone into recess, rather than be prorogued. Recess = pause for party conference season, but MPs could return at a moment’s notice.

James Eadie says that was possible but irrelevant. Parliament did in fact pass a No-Deal Blocking Act - but also did nothing to bring a No Confidence vote and other steps being suggested to block Boris Johnson’s Brexit strategy.

Eadie: "If the basic attack is that this [prorogation] was improper... because it was designed to stymie Parliament, we submit that is unsustainable.”

Really really strong intervention from Lord Wilson:

"We have no witness statement from anybody apart from the Treasury solicitor. No one has come forward from your side to say this is true…" (1/3)

Wilson: "We're just given the documents, [are they] the whole truth, nothing but the truth? Partly true? They're just floating around... Is it not strange?” (2/3)

Eadie replies the documents (cabinet minutes) are highly relevant explanation of the PM’s thinking. He basically says, in reply to a question from another justice (Carnwath) that it's not necessarily unusual for there to be no witness statement.”

Lord Kerr now launches in - yet again he is probing for answers about what the PM was possibly thinking. The Number 10 documents don’t come with a witness statement saying they contain the ONLY reasons for the 5-week prorogation.

James Eadie somewhat ducks a pointed question from Lord Kerr about whether there was intended direct political advantage for the PM in a 5-week prorogation or whether it was just incidental. Tells the court they have the evidence.

James Eadie, for government, tells the court he wants to make written submissions to the court on “relief” - that means what the justices should order the PM to do if the Prime Minister loses.

Lady Hale insists they need the papers by TOMORROW.

LUNCH. Sir James Eadie QC, for the government has finished. We’re going to move after lunch onto Aidan O’Neill QC. He’s acting for Joanna Cherry QC MP - who brought the Scottish case to court.