Afternoon session starting on day 2 of the #ProrogationCase. My morning commentary can be found here: THREAD 1/
O'Neill QC starts with a riff on how he's the only unennobled QC present at the Supreme Court hearing. Now arguing that distance confers difference perspectives & quoting Rabbie Burns. This could be more entertaining for a lay audience if he carries on like this. 2/
Sidenote: O'Neill families historically claim descent from the Kings of Ailech. Back in the Supreme Court, more Burns quotes. Entertaining the Justices with references to 1066 & 1966 + WW2 being only dates that matter to English. He's awa doon a rabbithole with this. 3/
O'Neil: This Court is very conscious of symbolism. Emblems are there for a reason. This Court cherishes & protects the 4 traditions that make up the Union. The rule of law matters with respect to the 4 traditions.
Lady Hale: are you suggesting we dismiss Pannick & Govt cases? 4/
Lady Hale: are you suggesting we dismiss Pannick & Govt cases? 4/
O'Neil: Wants Court to find in favour of Inner House decision. Won't discuss English law, wants Court to focus on Scots Law. Names Scottish authors (no, me neither). "We don't live in a state of uniformity. Not a nation state, a state of nations." 5/
Personal comment: I'm already having issues with the chap's historical definitions. Ironic that he's now talking about a country needing to recognise its history & acknowledge its diversity/diverse voices.
Normal service will be resumed as soon as possible. 6/
Normal service will be resumed as soon as possible. 6/
"I counsel the Court to avoid a new Orwellian motto: 'North of Tweed good; south of Tweed better'. We're made better by hearing different voices from other rooms. Remember where this Court is placed: a vast square, symbolic. Behind us Parliament." 7/
I'm tolerant of loquacious prolixity, but my inner Scot is screaming "Get on with it, man!" We're now talking about Charles I being beheaded because he stymied Parliament & Cromwell protecting you as long as you weren't Irish or Catholic. 8/
Statue of Nelson Mandela = civil resistance against unjust regimes, triumph of truth.
Statue of Abraham Lincoln = We must not be enemies. Abe quote.
"Those are the backdrop against which this Court is determining this case."
Lady Hale gently telling O'Neil to get on with it. 9/
Statue of Abraham Lincoln = We must not be enemies. Abe quote.
"Those are the backdrop against which this Court is determining this case."
Lady Hale gently telling O'Neil to get on with it. 9/
Now prerogative powers = collection of random powers which don't have much to do with each other. Depends on which power, what circumstances, what potential limits. Key case (Sandiford) "is not this Court's finest hour."
Lady Hale: "How to win friends & influence people." 10/
Lady Hale: "How to win friends & influence people." 10/
O'Neil was the losing advocate in Sandiford case, cited by Pannick as key authority for Miller case.
O'Neil: Sandiford still useful to this case.
Lady Hale: Sandiford power = prerogative power, not common law power.
11/
O'Neil: Sandiford still useful to this case.
Lady Hale: Sandiford power = prerogative power, not common law power.
11/
O'Neil: This is only about the manner, time, circumstances & period of prorogation. Not about mandating/requiring Parliament to be recalled. Will apply for quashing of prorogation. This is for Court to decide.
Apologises for length of submission. 12/
Apologises for length of submission. 12/
O'Neil: Parliamentary sovereignty is key. Executive is subordinate to the law & accountable to Parliament. (Clearly not impressed by #PeoplesPM PMQs on FB). Prorogation = unilateral executive act; that power has to be constrained narrowly & strictly. 13/
Courts must look at prorogation power "anxiously"; O'Neil appears to be going with the "Courts need to quash this before Boris declares his dictatorship" option. Complete focus on Parliament scrutinising #Brexit only. Doesn't matter how many sitting days lost. 14/
O'Neil: What matters is the impact. How much more legislation could Parliament force through against the Government to stop/delay #Brexit if it could sit for those 7 days? How much more effective would it be if it had 35 days? 15/
O'Neil: "Their ignorance of our constitution does not make what they have done lawful. This court is guardian of our constitution, seeing what is being done as an abuse of their power, looked at objectively. PM advice done for an improper purpose in bad faith." 16/
"This case was raised in July in response to Downing Street leaks about proroguing Parliament to stymie scrutiny." Or in other words, Parliament well aware of likelihood of prorogation in July, hence amendment to NI Act 2019. O'Neil going through Cherry case timetable. 17/
Discussion between Justices & O'Neil; Justices trying to get clarity from O'Neil regarding some of his points about Govt's position throughout the Cherry case prior to the initial judgement by Lord Doherty. Bundle kerfuffle. Justices nailing down exact quotes. Lord Keen happy 18/
O'Neil suggesting that the Scottish Court was potentially being mislead by Govt prior to Doherty ruling. Refers to NI Act 2019 amendment; predicated around exit day, not current prorogation. Govt had a cunning plan; seen a black hole in Parliamentary schedule & jumped in. 19/
O'Neil: Govt decided to prorogue for the bit Parliament forgot, hence improper purpose. Back to the bundles, Miller case this time.
Personal comment: O'Neil's 1 hour into a 2 hour session, almost as though he doesn't have enough argument to fill time without waffle. 20/
Personal comment: O'Neil's 1 hour into a 2 hour session, almost as though he doesn't have enough argument to fill time without waffle. 20/
O'Neil (having read part of Cabinet advice out): Important that you don't give Govt any benefit of the doubt, due to how documentation has been produced, with redactions & no supporting affidavits.
Justice: Not clear that Cabinet docs taken into account by Inner House. 21/
Justice: Not clear that Cabinet docs taken into account by Inner House. 21/
O'Neil: They were. (Bundle kerfuffle) The decision letter from PM & da Costa memo don't mean that the proposed reasons for prorogation are the actual reasons. No affidavit to say that dates on documents are true. Redacted elements suspect. Don't treat docs as gospel. 22/
O'Neil: Documents might have been written as cover for a future challenge. No affidavits to say this is true & complete. Cannot assume Govt won't resort to low & dirty tricks. Look upset & sceptical. But look at documentation.
Some Justices unconvinced. 23/
Some Justices unconvinced. 23/
O'Neil heaping scorn on da Costa memo. "Finally we get to the big black out of the legal. This Court should see the full unredacted versions." "5 days not enough for Parliament to respond accordingly & pass Withdrawal Bill." 24/
O'Neil: "Vast difference between Parliament voting for recess & having prorogation imposed." "If one reads critically, maybe cynically, the real reason comes out rather than the one suggested for messaging purposes." 25/
O'Neil: "Suggests Govt expects Parliament to rubber-stamp whatever deal they get." "Govt thought it was possible to thwart Parliament expressing its will by potentially blocking #Brexit. How much easier for Govt to close down Parliament so it can't block Brexit." 27/
O'Neil: "We're all singing from the same hymn sheet because those not singing have been silenced; Parliament isn't sitting any more." Bundle kerfuffle. O'Neil now reading out another swathe of judgment transcript, this time the Padfield case. Bored faces behind him. 28/
Lady Hale interrupts him to point out location of the Padfield case in both bundles & electronically. (Vain attempt to move things along?)
O'Neil: Look at the principles of the constitution. Is this use of prorogation at this time compatible with principles? 29/
O'Neil: Look at the principles of the constitution. Is this use of prorogation at this time compatible with principles? 29/
O'Neil: PM must be prepared to face Parliament, which will not authorise unconstitutional actions. Because they have the magical word prerogative, they think they can do what they like, until they are stopped. (They = Govt.) No one has absolute power. 30/
O'Neil now responding to Eadie QC. Fundamental principles of constitution. Acceptance by Govt that prorogation inhibits actions of Parliament; there have to be limits on that power. Once prorogued, only courts can determine if prorogation lawful. 31/
O'Neil: We now have potential irreversible constitutional changes due to #Brexit. Constitution unbalanced; role of Court is to rebalance it by determining when, how etc. Parliament can sit. It's about what prorogation is doing to our constitution. 32/
O'Neil: It's about the potential for leaving the EU with or without a deal. It's not a matter for the Govt to enter into treaties however it thinks best. Parliament is involved.
And there you have it. Remain case in a nutshell. Cherry case is about worry around leaving EU. 33/
And there you have it. Remain case in a nutshell. Cherry case is about worry around leaving EU. 33/
Justice: Principle in Miller case absolutely clear.
O'Neil: Only when bullet hits target (when A50 actioned & UK exits existing EU arrangement) does Miller principle arise. No statutory provision that authorises Govt to exit EU without a deal. Prorogation flawed. 34/
O'Neil: Only when bullet hits target (when A50 actioned & UK exits existing EU arrangement) does Miller principle arise. No statutory provision that authorises Govt to exit EU without a deal. Prorogation flawed. 34/
O'Neil just referred to Justices' questions as "barracking". "No scope for misunderstandings. Inner House makes clear that prorogation is null, it has no effect." Stating differences in judicial review between Scots & English law. "Equitable grounds" key. 35/
Another swipe at integrity of current Govt. "Parliamentary privilege."
Justice: "Remedy sought in Article 18 didn't seek reduction, you got a declarator."
Cherry case wasn't originally about this prorogation. They got a judgement & now want prorogue quashed. 36/
Justice: "Remedy sought in Article 18 didn't seek reduction, you got a declarator."
Cherry case wasn't originally about this prorogation. They got a judgement & now want prorogue quashed. 36/
Justices is querying exact court order that Cherry case had wanted. O'Neil prolix about reasons why he effectively dropped the ball & didn't amend the pleading before the Inner House for exactly what the plaintiffs wanted. Justices checking technical difference in Scots Law. 37/
Seems the Inner House judgement is without teeth as it stands. Saying prorogation is null and void (the declarator) doesn't mean it has to be revoked immediately by Govt. That takes an extra statement, the interdict. 38/
Now onto Parliament legislating against its prorogation in 1st week in September. "The whole point about an Act that affects prerogative powers is that it requires Queen's Consent." Suggests that Parliament would have been blocked by Govt if they'd tried any such action. 39/
We've got an arsonist analogy now. Countering his original "What if Parliament had that extra 7 days, look how much they could do" argument, he's now claiming that Parliament barely had the time to rush through a Bill & couldn't be expected to do more. 40/
Back to the EU legal system. "Don't let this case be your Dread Scot moment. Stand up for truth, democracy, Parliament, unity in diversity, dismiss this appeal of the Govt. The Mother of Parliament is shut down by the Father of Lies. Govt is unworthy of our trust." /41
"That's what Truth speaking to Power sounds like."
Court adjourned, back at 10:30 tomorrow to hear interveners & replies from Lords Keen & Pannick.
Seriously wondering if O'Neil spends Sundays as a Presbyterian pastor. Very fire & brimstone delivery. /END
Court adjourned, back at 10:30 tomorrow to hear interveners & replies from Lords Keen & Pannick.
Seriously wondering if O'Neil spends Sundays as a Presbyterian pastor. Very fire & brimstone delivery. /END
@threadreaderapp unroll please
