Thread by @mattholehouse

Miller2/Cherry day 3. First up, Lord Advocate for Scotland (Scottish govt senior legal officer) James Wolffe QC

Wolffe's case is that judicial review operates on a "sliding scale" with greater intensity when constitutional principles are at stake. The court must give it a "rigorous and searching review."

Judge Carnwath says he's a critic of concept of sliding scales.

The government's case is separation of powers between court and parliament.

Wollfe says separation of powers is "predicated on accountability of government to parliament". Court must grip what happens if this is removed.

Up now: Ronan Lavery QC for NI peace campaigner Raymond McCord.

GFA was "premised on continuing EU membership", as it cites "the close co-operation between their countries as friendly neighbours and as partners in the European Union".

Lavery asks the court to approach the prorogation in context of no deal Brexit.
Lady Hale comes in firmly.
"We’re not concerned with any of that. We’re concerned with the lawfulness of the PM’s decision.. We’re not concerned with when, how and on what term the UK leaves the EU."

Lavery says hit to NI is "collateral" from prorogation.
Judges v unhappy: “What does that have anything to do with the prorogation of parliament?”
"not a question for us"
"Completely irrelevant"
"the purpose of this hearing is not to rehearse the pros and cons of Brexit.”

(Camera angles on feed means not possible to match words to judges)

Lord Wilson rebukes Lavery:
"I am really worried about your submissions. People are listening to your submissions: they will hear these points about Brexit and NI and will come to entirely the wrong conclusion. Don’t abuse our politeness and don’t abuse Lady Hale’s patience."

Lavery says he apologises. His point is that the court must protect parliament's capacity to protect Northern Ireland.

Context is Court is acutely sensitive to the charge that it is taking a "political" view on Brexit more broadly.

Lavery: “I don’t think I’ve used up my time.”

Lady Hale: “We never, ever mind if people take less time than they have intended for.”

Now up: Michael Fordham QC, a leading public lawyer, on behalf of the Welsh govt.

Fordham is taking judges through the Unison case, which a number of them inc Reed presided over. It upheld judicial review of executive action that intrudes on "constitutional principles" and should focus on impact of an action.

Fordham says Govt is seeking to treat parliamentary sovereignty as a "narrow" question of what's in statute, and whether PM has breached that.

It's about the "broader" idea of "dynamism of ongoing legislative autonomy"... protecting what parliament wants to do tomorrow

Fordham's written submission is compelling.

If you accept notion that parliamentary sovereignty includes an "ongoing legislative autonomy" to do as it pleases, you can see through the Brexit drama it has explicitly strived to carve out its ability to act in future.

Fordham says this idea of ongoing scrutiny of parliament is the reason the government gives to the courts "day in day out" to stay out of politics.

Now up: former Conservative MP Lord Garnier QC for former PM Sir John Major

Garnier says parliament's sovereignty takes many forms, beyond the narrow formulation of passing legislation, including holding people in contempt.

This has included Dominic Cummings, he adds.

Garnier says Nikki Da Costa tweeted about Major's 1997 prorogation, and suggested it was for base political reasons.

That's wrong, but “The fact that the allegation was made suggests it was an impermissible use of the power" and undermines HMG, he says.

Garnier notes the safeguards against long-term prorogation - raising tax and armed forces - are weak and only work if the PM cares if the country's well run.

“It would be a strange constitution that protected against a conscientious executive but not against a reckless one.”

Garnier raises Nikki Da Costa's Spectator article calling the prorogation a "nuclear option", a month before she briefed the PM.

“We don’t buy the argument that the woman who wrote the article had a different character or mental state than the one who wrote the briefing paper.”

Ben Wallace's hot mic moment "gave the game away", Garnier says. As such, the documents put to the court "can't be taken as the truth and nothing but the truth and taken at face value."

Court adjourned til 2pm

Court returns. Lord Keen for the government. Returns to central argument that "convention is not enforceable in a court of law" and “the length is regulated by constitutional convention and not by the law.”

Keen notes that Parliament did used to regulate sittings under the Triennial Act of 1641 but this was repealed in 1664

Parliament was free to oppose the prorogation via a vote of no confidence, said Keen, but opposition chose not to. That was a decision based on "political advantage".

Keen: "It is a matter between the executive and parliament. If parliament takes exception to the executive, they have the tools to address the matter. If they chose not to employ those tools, that’s a political matter. It’s entirely for them."

“How in the context of that political minefield is the court to opine on purpose, proper purpose, illiegtimate political purpose. How are concepts to be applied and defined in this context.
“They are inviting the courts into forbidden territory and an ill-defined minefield."

Keen says O'Neill QC was "discourteous, incendiary and wholly unwarranted" in his rhetoric about PM yesterday. But the language exposes how claimants lept to conclusions that the government is a "sham". The documents should be read "fairly and with an open mind".

Lord Keen tells the court that five Brexit bills that fell with prorogation - inc Fisheries, Immigration, Agriculture, FS, Trade - are "Not required" for a 31 Oct exit day. They explain why that is in a note to the court.

Keen QC for govt says the PM will obey law.
Judge Reed: That sounds like something which ought to go without saying.
Keen: It’s not for the executive to give undertakings to obey the law. The executive does obey the law. If the court tells us what the law is we will address that

Lord Pannick back up, for closing 30 mins of three-day hearing. Will address facts, law and then remedy.

Pannick rehearsing arguments put at High Court: PM choose 5 weeks in run up to Brexit, denying parliament chance to cancel recess, hold debates, scrutinize Brexit. PM's "girly swot" note showed disregard for this sovereign role.

Pannick says it's not necessary for him to demonstrate the PM had ill motive, merely that it had the effect of frustrating parliament.
But nonetheless, the PM did have improper purpose. The govt has failed to answer the PM's own TV interviews or provide a witness statement.

HMG has now published online its papers on remedy, tweeted out by @JolyonMaugham

@JolyonMaugham Pannick: “The executive, the junior partner, cannot claim a legally-unfettered power to close down the senior partner, for as long as the executive likes, for whatever reason it likes, and however substantial the damage for the ability of parliament to provide its scrutiny..

@JolyonMaugham ... The court is being asked to uphold the separation of powers; to ensure the executive cannot by its own acts escape from scrutiny by parliament.”

@JolyonMaugham Pannick addressing the question of whether Queen had any choice over prorogation. It would be profoundly dissatisfactory if the court decided it didn't need to be a check because the Queen could. She'd be in an "impossible position".

@JolyonMaugham Pannick asks the court to declare that parliament should meet next week. “Let parliament sort out the problem! But it can only do so if the court grants a declaration that the prorogation was unlawful and encourages the PM to ensure that parliament meets as soon as possible."

@JolyonMaugham Govt has spent three days arguing that the court should not tread on separation of powers by dictating parliament's sitting.

Pannick is turning this on its head: Recall parliament, then let them decide, and dont get involved any further.

@JolyonMaugham If the PM ignored the court's declaration of illegality, it is open to Speaker Bercow and the Lords' speaker to reconvene parliament against his will, says Pannick.

@JolyonMaugham Hale wraps up. "This is not a simple question." Decision early next week.