Thread by @WomaninHavana

Here we go #prorogation

Can’t make out the sound though. Streaming problems. #SupremeCourt

Ok sound back on. Lady Hale now setting out the facts relating to the prorogation itself

Unanimous judgment of all 11 justices.

Court holds this IS Justiciable.

Repeat. It IS justiciable. Unanimously.

There is no doubt courts have jurisdiction to decide upon extents and limits of a prorogation power.

This case is about the limits of the power to advise HM.

Parliamentary sovereignty we be undermined if the exec could prevent it from using its powers for as long as it pleased.

Parliamentary accountability lies at the heart of Westminster democracy. The power to prorogue is limited by the constitutional principles with which it would otherwise conflict.

A decision to prorogue will be unlawful if it has the effect of frustrating or preventing, without reasonable justification, the ability of Plmnt to carry out its functions and to supervise the executive.

The court must be sensitive to responsibilities of the Prime Minister.

If the prorogation does have that effect, there is no need for the Court to consider whether the PM propose was unlawful.

This was not a normal prorogation.

It prevented Parliament from carrying out its constitutional role for 5 out of possible 8 weeks before exit day.

Proroguing Parliament is quite different from Plmnt going into recess.

This prorogation took place in quite exceptional circumstances re fundamental change due to take place on 31/10.

Plmnt, esp House of Commons, as elected representatives of the people, has a right to have a voice in how that changes comes about.

The effect on the fundamental on our democracy was extreme.

No justification for why it was taken was put before the Court.

The Da Costa memo does not explain why it was necessary to bring a plmnt to a halt for 5 weeks.

The Court is bound to conclude this prorogation was UNLAWFUL because it had the effect of frustrating or preventing the ability of Plmnt to carry out its reasonable functions without reasonable justification.

Wow.

HUGE decision, and unanimous too.

Lady Hale explores remedy.

This court has already concluded the Prime Minister’s advice to HM was unlawful, void and of no effect.

So Order in Council was also unlawful, void and of no effect and should be quashed.

The prorogation was also void and of no effect.

Parliament has NOT BEEN PROROGUED.

This is the unanimous judgment of all 11 justices. It is for Parliament, esp Speaker and Lord Speaker, to decide what to do next.

Biting end to this from Lady Hale:

It is not clear whether any steps required of PM but if it is, the Court is pleased his counsel have told court he will take all necessary steps to comply with the terms of declaration made.

Comprehensive, conclusive and icily clear.

This should shake the foundations of this government.

In normal times ( and these are anything but), this should be an absolutely straightforward resigning matter for the Prime Minister.

Put aside the legal ramifications, which the public law community will pore over for weeks, the political ramifications of this should be very serious indeed.

This was an unlawful suspension of Parliament, by the Prime Minister, at a critical time in our national trajectory.

Huge congratulations to @joannaccherry @thatginamiller @JolyonMaugham and all of those lawyers who worked with them to uphold democracy in our nation, at a time when there have been naked and shameless attempts to game it.

Their efforts should be applauded and cheered by us all.

Links to the judgment here. Please read carefully.

supremecourt.uk/cases/docs/uks…

I’m still stunned it was a unanimous judgment.

Absolutely extraordinary.

Another important feature was the way the Court sidestepped the question of the Prime Minister’s motive.

Elegant and deflating in advance what could have been some of the most controversial aspects of the judgment, it was a really deft touch.

Sorry, earlier link was to the Court’s summary. Here is the full judgment.

I’m “Gone Surfing” until further notice. Will be on @SkyNews later this afteenoon.

supremecourt.uk/cases/docs/uks…

Back from jmnt surfing. Reading the #SupremeCourt judgment underlined how carefully reasoned it is.

A very short analysis of some key paragraphs follows:-

An important feature of the judgment is how the Court ties its decision both to historical precedent for placing limits on powers & to two fundamental constitutional principles at play- parliamentary sovereignty and parliamentary accountability.

Put another way, whilst meticulously describing this as a “one-off” in the opening paragraph, the Court also seems to be saying “nothing to see here”.

The Court is making clear its role is entirely conventional &, despite circs, there is nothing unorthodox about its conclusion

Part of that is conveyed in its introductory remarks.

Para 30 takes the sting out of any impact for HMQ. Subtly (or not), all the emphasis is placed on the Prime Minister’s constitutional responsibility.

At para 31, the Court squarely tackles the ‘political not legal’ question. It states, as a matter of fact, that many if not most constitutional cases in our legal history have been concerned with conduct of politicians or political controversy.

Nothing to see here etc.

To illustrate that point, the Court looks back to 1611 (Case of Proclamations) where the courts held that an attempt to alter the law of the land by prerogative power was unlawful.

ie This is old hat. Courts have determined the limits of the prerogative powers for centuries.

The Court is alive to the practical realities of prorogation throughout the judgment. Remember some of the questions faced by the govt counsel last week?

In defined circumstances, “the most Plmnt could do would amount to closing the stable door after the horse had bolted”.

The Court is alive to its key role within the foundational principle of the separation of powers. That’s what this is about.

In other words, the Courtis saying that this is democracy & our very constitution in action.

The Court gives short shrift to the allegations of deficiency in our constitution which swirled around.

The courts are responsible for upholding constitutional values/principles & cannot shirk that responsibility merely because a question raised is political in tone or context.

Although there was no direct precedent for the Court to follow, it draws on historical similarities.

“Time & again, in a series of cases since the 17th century, the courts have protected parliamentary sovereignty from threats posed to it by the use of prerogative powers..”

Then, at para 42, sitting at the heart of its judgment, the statement that an unlimited power of prorogation would be incompatible with Parliamentary sovereignty.

Remember the govt submissions were, effectively, the PM had carte blanche.

Para 43 is a straight out slap down to the govt lawyers (& indeed the Divisional Court) since it is no answer to say the Court should decline to consider extreme hypothetical examples.

Perfectly appropriate to consider implications of govt position of Carte Blanche (my words).

In time, public and constitutional lawyers will be poring over the implications of Para 46 which pitches the principle of parliamentary accountability squarely within the constitution, amidst the modern direction & conception of public law.

Now the neat segway into the critical question which permits it to avoid scrutining Johnson’s motives.

A decision to prorogue Plmnt will be unlawful if the prorogation has the effect of frustrating or preventing, w/o reasonable justification, the ability of Plmnt to scrutinise.

Para 55 is a neat reminder to the outside world. It should be replicated on newspaper front pages tmw.

The govt exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. That means it is accountable to the House of Commons.

This was not a normal prorogation in the run up to a Queen’s Speech. It prevented Plmnt from carrying out its constitutional role...

This is an elegant way of undermining the Prime Minister’s alleged motive without actually spelling it out.

Fact-based, calm, clear.

Carefully treading around the elephant in the room, the Court upholds the right of the House of Commons, as the democratically elected representatives of the people, “has a right to have a voice in how that change comes about is indisputable.”

That is a powerful underlining of the principle that democratic governance requires the voice of its elected MPs.

However he thought the Court would find, it’s still astounding that Johnson tried to game democracy in this way. The very argument of Vote Leave turned on its head.

The nail in the coffin. Surely the basis of any honourable public person to resign immediately.

And another elegant way to impugn Johnson’s motive, even though they say they won’t speculate.

NO REASON, let alone a good reason, to prorogue for 5 weeks.

Game, set and match.

So, across a long weekend, the Supreme Court has established that we have a functioning constitution, a rule of law that won’t be gamed & a court that won’t be deterred by the sinister threats of newspaper moguls and anonymous No 10 sources.

I’m off to buy a spider brooch.

One last reflection- so much of the last 3 years has felt out of control, childish, covert & incompetent.

It has felt striking how the Supreme Court proceedings, & jmnt, showed civility, transparency, judgment & competence all back in the limelight.

Experts, back in fashion.