Thread by @AdamWagner1

I am aiming to live tweet the Supreme Court prorogation judgment from 10:30. This will be tweet 1 (thread)

Here is my introduction to the case and why I think it’s so important newstatesman.com/politics/brexi…

At 10:30 you can watch the 'hand down' (giving) of a short summary of the judgment here supremecourt.uk/live/court-01.…

You can read the written submissions (statements) of the various parties to the case here supremecourt.uk/brexit/written…

Below is the Court's summary of the key issues

There are 4 key issues:
ISSUE 1: Is the case 'justiciable':
Can prorogation decisions, made by Executive in exercise of 'royal prerogative' be reviewed by the court at all. Courts won't get involved in 'high politics' but will if 'constitutional principle'. Messy, muddy, unclear

ISSUE 2
If prorogation *is* justiciable, was the prorogation in fact lawful? Court will focus on whether there was
(a) an improper and therefore unlawful *motive* and/or
(b) an improper *effect*.
And (a) and (b) are both concerned with stymying/avoiding scrutiny of parliament

The question of whether the prorogation was lawful involves questions of law and fact.

The question of law is what does an unlawful prorogation look like? One might say that a prorogation designed to stymie parliament is a paradigm example of improper purpose but who knows.

Questions of fact are (a) what was Boris Johnson’s actual motive - was it partly to avoid scrutiny?

(b)(maybe) what was the true effect of the prorogation? i.e. did it in fact result in limiting parliamentary scrutiny

ISSUE 3
Even if justiciable + improper motive/effect, is this 'academic'? I'm afraid to say 'academic' in legal speak is bad: interesting but with no real world effect. Courts don't like academic cases. Govt says parliament was not *in fact* stymied as passed Benn Act so academic

(4) Finally, if case justiciable, and improper and therefore unlawful motive/effect of prorogation, what will the "remedy" be? That is, what order, if any, will the court make to right the wrong? Answers on a postcard! This is a fascinating question in and of itself

One thing which is true whether or not the Supreme Court rules against the government:

Our 'dark' constitution isn't working.

Fundamental constitutional principles (as opposed to how to apply them) shouldn't be left solely to judges to 'reveal'

newstatesman.com/politics/uk/20…

The Supreme Court has ruled that the government's decision to prorogue parliament is JUSTICIABLE

(thread on judgment as a I read it below)

Extraordinary - a unanimous judgment saying that the prorogation power is justiciable! What a turn of events

Supreme Court says that it has exercised a supervisory jurisdiction for centuries.

This case is about the limits of the power to advise her majesty to prorogue par

Two fundamental principles define the limits of the government's power to prorogue parliament

(1) Parliamentary sovereignty

(2) Parliament accountability

The government looks set to lose this entirely.

The relevant limit on the power is:

"a decision to prorogue will be unlawful if the prorogation has the effect [NOT MOTIVE] without reasonable justification of preventing parliament" from scrutinising executive

If the prorogation has that effect without reasonable justification there is no need for the court to consider whether the prime minster's motive is unlawful.

Neat!

Did the prorogation have the effect of preventing parliament from carrying out its constitutional role?

YES says the Supreme Court

For five weeks

Government loses

Supreme Court smacks down government unanimously.

"quite exceptional circumstances" of leaving EU on 31 October.

Parliament "has a right to a voice on how that change comes about"

"No justification with taking action with such an extreme effect has been put before the court"

Nicki de Costa's memo doesn't explain why it was necessary to prorogue for such a long period.

Does not discuss difference between recess and prorogation.

The is "bound to conclude that the decision to prorogue parliament was unlawful as it had the effect of preventing parliament from carrying out its constitutional function"

UNANIMOUS GOVERNMENT SMACK DOWN

Now on to remedy.

Here is the summary

Void and had no effect

Parliament has not been prorogued

This is the unanimous judgment

Parliament can take immediate steps to return. It was never prorogued.

Government has lost on every level

Here is the Court's full press summary

I will now tweet key parts of the judgment

As I said it would be, the key concern of the court was that if it couldn't exercise jurisdiction (consider a prorogation decision) that would be the thin end of the wedge. I expect that the leak from Boris's office about proroguing again would have focussed minds.

"It must therefore follow, as a concomitant of Parliamentary sovereignty, that the power to prorogue cannot be unlimited."

Obviously. When you think about it.

Difficult to emphasise how important and unusual it is for 11 justices to be unanimous. Nobody predicted this. Everyone, even the most gung ho lawyers thought there would be a majority

The Prime Minister through his brazen unconstitutional behaviour has woken a sleeping giant

Second principle in play: parliamentary accountability (as opposed to sovereignty)

"the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model."

I think... this is the Supreme Court saying that there is no prerogative power which is non-justiciable. Constitutional principles (from the common law) are now supreme

Here is the clever wheeze by which court avoids directly examining motives of the Prime Minister. It looks only to justification for prorogation, and the question of whether it is "reasonable" is an objective rather than subjective one. That means it doesn't matter what PM thinks

So the burden of proof is shifted to the Prime Minister to provide a "reasonable justification" (what is 'reasonable' in the courts is an objective question, so the purported justification will be examined in the round) and if s/he can't, the prorogation is unlawful

Here is the court's summary on justiciability. Just a little slap on my own back here as this is how I predicted the issue would play out - it's about mapping the constitutional territory (excerpt from my article on right) newstatesman.com/politics/brexi…

Supreme Court here laying out the ABC of the UK's constitution. This is directly aimed at the Prime Minister. Lady Hale has the big colourful markers out here.

Here is the key paragraph on the factual question of whether prorogation did *in fact* have effect of preventing parliamentary scrutiny of Executive.

The answer is it did for 5 out of a possible of 8 weeks. Brexit context crucial as we really need Parliament during this period

Incidentally, you can read the judgment and press summary for yourself here

supremecourt.uk/cases/uksc-201…

Recommend at least the press summary which is clear and straightforward, as these things go

Moving backwards for a second, & zooming out to wider political (even democratic) context, this is the danger paragraph for the court. Says (correctly) that since we have an unwritten constitution, it is for court to take responsibility for determining "legal limits" of powers

One might argue (as I do here newstatesman.com/politics/brexi…) that as the court becomes more embroiled in issues which may be 'legal' but are *also* 'high politics', it is time for a wider democratic settlement of these principles. ie. a written constitution

Parliament had a right and a duty to be involved in the preparations for Brexit. Not politics, constitution. End of.

Here Supreme Court says it isn't concerned with PM's motives but his stated reasons. Clever. Avoid having to say he's a liar, but does say his reasons are insufficient. In fact, he gave *no reason at all* for length of prorogation.

Might as well have called him a liar really

Here the Supreme Court is putting on its *unimpressed face* at Nikki da Costa's memorandum.

And it's *super unimpressed face* that there isn't a "hint" that the PM took his constitutional responsibility seriously

The end of para 60 is 🔥🔥🔥

Let's see that 🔥🔥🔥 again

Smart move. PM didn't give any reason for the length of prorogation, let alone a lawful one.

"We cannot speculate, in the absence of further evidence, upon what such reasons might have been"

Supreme Court a fan of cake (not saying he lied) and of eating cake (implying he lied)

Moving on to remedy (what will the court do to make things good)

Govt argued that declaring prorogation null would be contrary to the British Bill of Rights 1689 which prevents the courts getting involved in a 'proceeding in parliament'

Nope, says the court.

First, since the Bill of Rights is an act of parliament, it is for the court to define its limits (swish!)

I'm not reading replies yet by the way, will get to them in a bit

Side note: are Labour MPs abandoning their conference to rush back to parliament to fulfil their constitutional role? (-:

Here's why the prorogation isn't caught by section 9 of the Bill of Rights. It's imposed upon parliament from the outside. Neat!

And here is the firework which explodes at the end of the judgment. Since the advice to prorogue was outside of the Prime Minister's powers, it is as if he never gave it, and there was no decision, and prorogation never happened!

Parliament is BACK! As if by legal magic

So, to summarise the answers to the questions posed right at the beginning of this thread:
(1) Justiciable? YES
(2) Was prorogation in fact lawful? NO, and it was about (b) effect not (a) motive
(3) Academic? Court ignored
(4) Remedy: prorogation null and void

To sum up my initial thoughts (emoji a tribute to Lady Hale's spider broach):
🕷️ On legal principle, important case as appears to be a licence for the courts to define the boundaries of all prerogative powers. And so has become the constitutional court it has been evolving to be.

🕷️Court cleverly said the case was about the scope of the PM's powers, not his motives in exercising them.

🕷️ Can't prorogue if interferes unreasonably with constitutional principles (as decided by court) of parliamentary sovreignty or parliamentary accountability

🕷️There has to be a reasonable justification for length of prorogation, and since he gave no justification, let alone a reasonable one, was unlawful

🕷️Reasonable justification can be analysed objectively by the court in the normal way. No need to look into the heart of the PM

🕷️Ultimately, my view as stated in my article tweeted above is that our 'dark' constitution is fundamentally unstable. Whilst remainers and 'rule of law' people like me will revel in this unanimous Supreme Court smack down of the PM, it can't be sustainable for the court only...

... to define the boundaries of our 'unwritten' constitution. It arguably gives the judges too much power. Obviously a written constitution would still give the courts a key role in resolving ambiguities but at least there would be a broadly agreed upon starting point...

As things stand, with Parliament and the Executive in such a mess, there is a huge amount of pressure on the courts to be the guardian of our democracy and that's a lot of pressure on 12 judges. For this reason, I think a written constitution is needed.

https://twitter.com/AdamWagner1/status/1176435946054672384?s=20

Continues

🕷️I agree with this that the emerging in this judgment of a constitutional principle of "parliamentary accountability" in addition to parliamentary sovereignty (which is forever stained by the anti-judicial arguments of the leave campaign) is significant

https://twitter.com/performidentity/status/1176441115303694337?s=20

🕷️Also, for anyone wondering, Lady Hale, who is an absolute legend, will 100% have chosen this spider broach deliberately.