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Day 3 of the #ProrogationCase hearing at the UK Supreme Court. Previous threads can be found here (follow the nested link for Day 1): THREAD 1/
This morning, we have 4 "oral interventions". These are written statements, read out by QCs. Each written statement is read out by a different QC. Neither the Public Law Project nor Shami Chakrabati's written statements are on the timetable. 2/
First up, a "short statement" on justiciability by Mure QC on behalf of the Scottish Govt; "Court has competence to protect the constitution as much as it can protect individual rights." "Authority for closer ("anxious") scrutiny where constitutional principles at stake." 3/
"Sliding scale of proportionality". Back to the Cherry case bundle. Lord Sumption's opinion & Lord Reed's opinion are key. Justice points out that some of them "are not very keen on sliding scales". Sliding scales not appropriate for constitutional principles. 4/
Repeated emphasis on "constitutional principles", "searching review" & "anxious scrutiny". Parliamentary accountability is fundamental principle. PM's decision evades accountability for 5 weeks. Time critical because #Brexit. Effect of PM's decision calls for justification. 5/
Mure: PM could have prorogued immediately after conference recess. No substantive justification given for duration. Parliament could be recalled during recess more easily. If Pannick is right, judicial review tools can apply to this case. 6/
Mure: Reliance on separation of powers "does not advance matters". Separation of powers assumes government is accountable to Parliament. Court must grapple with issue where prorogation avoids accountability."
Justice: Asks about difference between dissolution & prorogation. 7/
Mure: Dissolution for GE means new Govt. Non-justiciable according to case law. Prorogation means Govt still in control, but not accountable to Parliament.

Mure not covering the attempts to get vote for GE prior to prorogation. 8/
Mure: If no distinction to be made between dissolution & prorogation, Govt could effectively "dissolve" via prorogation & not recall Parliament, i.e. deprive Parliament & voters of appropriate scrutiny. Extreme cases test whether point justiciable or not. 9/
Now quoting Turkish case in Strasbourg court (presumably ECJ). Back to bundles. If UK Govt's position is correct, then PM, when appointed, could have advised immediate prorogation until after 31 October. Just bc Parliament didn't limit prorogation, doesn't mean Court can't. 10/
Mure: 2 fundamental principles: responsible govt founded on Parliamentary accountability. 2 points from Scottish perspective: This case doesn't turn on Scots law principles, underlying principles same in English law. UK Govt needs Scot Govt agreement on SIs. 11/
SIs are Statutory Instruments, & don't need Parliamentary scrutiny to the same level as a UK Bill. SIs used to rubber stamp EU directives into UK law, or to amend existing Acts under certain circumstances.

Mure finishes. NI QC up next. 12/
Lavery for NI claimant in Cherry/Miller: Client (McCord) is staunch defender of Good Friday agreement, still seeking justice for murdered son. McCord speaks for NI silent majority. Delicate constitutional settlement ensures peace.

Poor microphone control. 13/
EU achieves an international standard, is a peace project, removes significance of national identity, harmonises rules & freedom of movement of goods & people; Good Friday agreement is premised on continuing EU membership. NI is microcosm of EU harmonisation. 14/
#Brexit is major impediment to the formation of the NI Assembly.
Justice: Court solely concerned with lawfulness of PM's advice to HMQ, not the terms of how UK leaves EU.
Lavery: Prorogation = decision to pave way for #NoDeal. Important to look at consequences. 15/
Justice: Can we move on to the issues.
Lavery: Court should intervene. Parliament has little/no remedy once prorogued. Nature of prorogation to start new Parliament should be mundane. But if improper motive, e.g. to pave way for #NoDeal & avoid scrutiny, Court should judge. 16/
Emphasis on "improper motive", Henry VIII powers & #NoDeal #Brexit. Even if legitimate motive, still need to look at purpose, effect & impact. NI perspective: loss of ability to scrutinise #Brexit legislation has serious impact. New bundle produced, page 633. 17/
Lavery discussing SIs relating to important appointments to NI Departments. Very bored faces behind him atm. "No reason why prorogation could not have been for shorter period." Listing debates prevented from proceeding by prorogation. This is immediate impact. 18/
Lavery: Collateral effect of prorogation is to stymie Parliament. Reading from bundle.
Justice: You've lost me.
Lavery: Important preventing hard border. If prorogation done to stymie Parliament, it's relevant.
Justice: If Parl prorogued, all NI safeguards lost?
Lavery: Yes. 19/
Lavery: Calamity of #OperationYellowhammer.
Justices are getting frustrated. They keep telling him this isn't relevant to the justiciability of the PM's decision. He's not backing down.
Discussion between Lavery & Justices. "This hearing's purpose is not to discuss #Brexit". 20/
Lavery ploughs on regardless. Back to bundles & discussion of dangers of #NoDeal, hard borders etc.

Can't help thinking he's damaged his client's case massively. 21/
Lavery: Should have had an affidavit from PM. Cross examination etc. Disclosed Cabinet minutes are self-serving. NI doesn't feature in them. Only consideration was how much prorogation time could be squeezed into NI Act 2019. NI border stands in way of #Brexit. Safeguards. 22/
Lavery: Govt policy would be unconstitutional, scorched earth policy for NI, if #NoDeal.
Justices: This doesn't come under the ambit of this hearing. The question is whether the decision to prorogue was unlawful. Accept particular issues related to NI. Anything else? 23/
Justices: "Really worried about your submissions. General points about effect of #Brexit on NI. Don't abuse our patience & politeness. This hearing is not about #Brexit".
Lavery doesn't seem capable of moving off his brief, unfortunately. 24/
Lavery: Rule of law must not be undermined, there are consequences. More serious than use of political tricks. About power of Govt to stymie Parliament. Inner House decision is right. Fragile peace in NI. Client's son murdered because of this. (No, me neither). 25/
Fordham QC, Counsel General for Wales: Go back to primary legislation. Keen & Eadie accept that if Govt acts illegally by *defying statute* then that activity is justiciable. Parliamentary sovereignty, rule of law. Practical remedy, judicial review. 26/
Fordham very loud, very passionate, almost aggressive delivery.

Fordham: "We've pinned the Govt down. Govt denies that inconsistency with constitutional principles/values grounds for judicial review (JR). We say inconsistency etc. is grounds for JR." 27/
Fordham: Unison case. Bundles. Recognition of constitutional right to access to courts. Challenge on how power exercised relative to rights. Based on impact. Idea that you can somehow distinguish between constitutional rights & principles is striking (sarcasm). 28/
Fordham warming up. Rhetorical questions ftw.

"Looking to see if legitimate aim, action justified as reasonably necessary by legitimate objective. Applying rule of law as constitutional principle, Court secures scope as to how that applies. This prorogation justiciable." 29/
Fordham: Parliament can't bind its successors. Dynamism of Parliamentary sovereignty. Is there some magic about prerogative powers? Constitutional principle can apply to non-statutory powers. Bundles again. Sandiford case, again. 30/
Fordham: Rejects Govt's argument that improper purpose doesn't apply to prerogrative power. Sandiford is about limits of power. Prerogative power held on trust, must be exercised in the public interest. Bundles. Grounds for JR are available, JR is applicable. 31/
Fordham: You don't need a bribe or bad faith to get to an improper purpose. Need to examine impact of an unaccountable executive, check justification, whether legitimate objective. Bundles again. Case law on whether public interest *required* govt. dissolution. 32/
Fordham: Indian Supreme Court case quoted. Reference to Public Law Project's SI/Bills tracker and which Bills/SI have fallen (been cancelled) due to prorogation. Impact. Not a judicial overreach to rule on the lawfulness of PM's decision. 33/
Fordham finishes. Lord Garnier QC for Sir John Major. Poor microphone control. Assures court that Major's statement not about #Brexit.

Really poor microphone control. Struggling to hear him over the rustling of bundles. 34/
Garnier: Witness statement provides evidence on how prerogative power of prorogation is actually exercised. Evidence on what purpose prorogation serves. Clear & unambiguous allegation in statement that PM's reasons are untrue. Affidavit should have been given in response. 35/
Garnier: Inference can be drawn as to why no PM affidavit provided to rebut Major's allegations. No reason at all why proroguing should have been for 5 weeks. Major provides evidence as to why PM was attempting to avoid scrutiny. 36/
Garnier: Dissolution overrides Parliament in favour of electorate; prorogation overrides Parliament in favour of the executive Govt. Prorogation is matter purely between "organs of State". Prorogation can be judicially reviewed, despite dissolution being non-justiciable. 37/
Garnier: Permissible purposes. Q is not whether motive is political, but whether prorogation contravenes legal principle. Not necessarily statutory principle, can be unwritten constitutional principle. Govt's definition of Parl sovereignty too narrow. 38/
Garnier: Cummings held in contempt of Parliament for failing to attend Committee hearing. Short prorogation =/= material interference in Parliamentary business. Law recognises standards in the abstract. Political motives: May have support of HoC, onto Major's prorogation. 39/
Garnier: Denies that Major's prorogation was for "base political reasons". Cite's Heseltine's recent letter. Legislation benefits from detailed scrutiny. (Presumably ignoring the Cooper-Letwin & Benn Bills). Court can judge on frustration of Parliament's will. 40/
Garnier: Danger of politicising HMQ. Practical constraints. Strange constitution that protected against conscientious but not reckless executive. Govt exhibits don't explain why prorogation needs to be 5 weeks. Must be some factor other than in the exhibits. 41/
Garnier: Necessary to consider the author (da Costa). Spectator article: prorogation =/= nuclear option. da Costa hasn't changed. Infer that any other evidence thus highly prejudicial to Govt's case. Downing Street press office, misleading announcements. 42/
Garnier finishes. Court adjourning until 2pm. I'm off to find Major's original written statement, latest one is on the Supreme Court website here:… 43/
The final day's afternoon session can be found here: /END
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