Thread by @lewis_goodall

SUPREME COURT DAY 3

I get the sense that their lordships are getting pretty unhappy that the last couple of interventions have focussed too much about the high politics, not enough about the law,

Having received a lengthy peroration about Brexit and the Northern Ireland Peace Process, Lady Hale pointedly intervenes: “But we’re not concerned with any of that. We are not concerned with how, when or in what circumstances we leave the European Union.”

“We are concerned only with whether the Prime Minister’s advice to HM the Queen was unlawful.”

It’s Pannick v Eadie I really want to see. I’m no lawyer but from the layman’s point of view they’ve easily been the two outstanding interventions on either side over the last three days.

Once again, the court getting frustrated with Ronan Lavery. Lord Sales: “I fail to see how any of this has anything to do with the prorogation of Parliament.

“I’m afraid this strikes me as completely irrelevant to the legal questions we have to decide.”

They’re all chiming in now, expressing great disquiet: “the purpose of this Court is not to rehearse the pros and cons of Brexit.”

You get the sense this case started terribly for the government but after Pannick things have flowed back their way.

Lavery is having a bit of a mare.

Lord Kerr (former Chief Justice of Northern Ireland) essentially asking him if he has anything else other than the effects of Brexit on Northern Ireland.

Oh my. Lord Wilson: “Don’t abuse our politeness. And don’t abuse Lady Hale’s patience.”

This is getting quite brutal. They’re essentially saying if you don’t have any further legal arguments germane to the case then you should stop.

I have no intelligence on this but I think after yesterday’s rather political and dramatic interventions from Aidan O’Neill the Justices are rather concerned that this is becoming about merits and demerits of Brexit ergo even more political and therefore their judgment demeaned.

V telling remark from Lord Wilson about how many people are watching and about how they might have “the wrong impression” from his submission about what this case is about.

Lavery winds up early apologises for not using up his time: “that’s not a problem”, Lord Kerr archly replies. “We never mind if people use up less time”- Lady Hale.

Someone buy Lavery a drink.

Mike Fordham QC (speaking on behalf of the Welsh govt) artfully starts his submission: “I’d like to return to first principles and matters of law...”

Fordham has a compelling style and crucially a loud voice, which given poor acoustics in the room, is helpful.

Some of this stuff is dense legal precedent and not especially viewer friendly but I suspect that its triumph. Fordham has barely been interrupted.

Seems to me Fordham is addressing head on exactly what must be at the core of the justices’ concerns about this case: that this is exactly the sort of thing the Supreme Court should and indeed must be involved in.

And now at a moment of peak Brexit, Edward Garnier QC (and former Tory MP) stands up to represent former Tory Prime Minister John Major to effectively try his successor Boris Johnson on the accusation of lying to the Queen and to the country.

Just another normal day in the UK.

Garnier archly observes that “uniquely in this case we have put in a witness statement on how the power should be used.”

Ie as opposed to Boris Johnson or anyone who works for him.

Garnier says dissolution is not justiciable because it brings the executive into contact with the electorate. Prorogation is because it takes the executive further away.

Garnier seeking to neutralise Eadie’s argument from yesterday that any prorogation is an interference with Parliament’s proper functioning. Garnier accepts that but asks will it make a “material difference” and says this one clearly does.

Garnier says 1948 prorogation is irrelevant because it was done to fulfil parliament’s will, especially the Commons’, not frustrate it.

Garnier says Major’s 1997 prorogation isn’t relevant either as it wasn’t done (as is commonly supposed) for “base political reasons” but rather glosses over it and points justices to written submission.

Garnier says no confidence motion was not really a weapon for parliament to deploy in this circumstance because they would have risked a 14 day period of inaction or even a dissolution. Hmm.

Garnier uses clever argument to neutralise idea Parliament could not be prorogued indefinitely because of requirement for money bill and defence requirements. Says if you had a PM willing to let either lapse to achieve their goals those provisions would be useless.

Says it’s an odd constitutional protection for something to work on a conscientious PM but not on a reckless one.

This is why I’ve loved watching these proceedings. Unlike so often in Brexit with the same old tedious arguments and talking heads it’s actually made me think.

Ok they’ve adjourned for a well deserved lunch.

Then summing up from Lords Pannick and Keen.

Keen: even if the Court declares the advice to the Queen to prorogue unlawful Parliament would in fact remain prorogued and it would be up to Boris Johnson to decide what to do about it. Basically saying that would be a nightmare scenario which would make things worse.

I think the response from many to that would be:

Kerr: surely if the advice to the Queen were unlawful then the act of her commissioners proroguing was unlawful so how can the prorogation be extant. Keen does not supply an especially compelling response.

Keen’s argument seems to be that this case is only about the advice the Queen received not the act of prorogation itself. I’m no lawyer but given the prorogation is intrinsic to and follows on from the advice then surely if the former is unlawful, the latter must be too?

That is certainly the basis of the scrutiny he has received from the justices.

Pannick is a class act.

On a train so missed everything but the last section but seems to me Lady Arden adverted to possible course of action: that the prorogation is declared unlawful, wait to see if the govt complies and then if it doesn’t, issue an order mandating its restoration.

That would be 💥💥

Lady Hale says these are complicated matters and the Court will issue a judgment: “early next week”

This has felt like it’s got more important and totemic as the week has gone on. Truly big principles which yes, go beyond Brexit, at stake. Ultimately, who commands parliament and its most basic function: when and whether it sits at its will. Just how powerful the executive is.

And of course the stakes for Boris Johnson are huge: whether or not he was the prime minister to not only drag the Queen into politics but advised her to act unlawfully; and whether, in effect, he lied (potentially) to her and (certainly) to us about his motivations.

I suspect the Court might take its time. I suspect Lady Hale would dearly love a unanimous judgment or at least one where the minority is as small as possible. It would add greater credibility to their assessment, especially if they do rule against the govt.

If Parliament does have to be recalled, MPs will have to decide what to do with the time they’ve won. They’ve made great play that they wanted it back- presumably they will attempt to bind BJ further. The clamour from the Tory benches for an election will become ever louder.

But I repeat, though it’s potentially the case the govt has acted unlawfully. It is also the case MPs are, not unlawfully, but potentially unconstitutionally in essentially having no conf in a govt yet keeping it there to do its bidding, without removing it or allowing an elex.

That cannot endure. So as much as I’ve admired and loved the proceedings in our highest court this wee (and they’ve proved a rare oasis of maturity and constitutional probity), it will not give us our Brexit salvation. That has to come from the Commons and probably, a new one.

For no legal remedy (as the Justices themselves have adverted to many times this week) can solve Brexit, as much as we might wish it might and as clean as that might be. It has to come from the considerably muckier realm of politics.

But in sum: if we do ever have to have a technocratic govt, I hope the Queen has Lady Hale’s telephone number.

See you next week.