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Court returns. O’Neill rises to continue the case for the petitioners, that action should be taken to ensure Boris Johnson abides by the law passed by Parliament on Brexit.
O’Neill submits transcript of the Andrew Marr show, various interviews, & BJ’s Tory conference speech all asserting that UK will leave the EU on 31 Oct irrespective of the law passed by Parliament. This, he says, demonstrates his willingness to break the law.
Andrew Webster QC rises for the respondents, the UK Government acting for Boris Johnson as Prime Minister.
Webster deals with preliminaries. Asserting that this is a case regarding Boris Johnson as an office holder (rather than strictly as an individual). Moves onto issues of competency.
Webster makes claim the case could have been incompetently raised, which means it could be thrown out if proven. Technical rules on actions, petitions, & judicial review procedure quoted.
Webster continues a long, detailed attempt to undermine the case on competency grounds. [By my reading part of the reason we’re having this Outer House hearing is to strengthen the technical grounds of the full Nobile Officium hearing on Tuesday at the Inner House].
Webster focusing on changes to the Rule of Court concerning judicial review: ‘including’ v ‘includes’. Lord Pentland asks why this matters. “I’m not sure I can assist the court on why this has changed,” Webster admits. Lot of time on this technical point (well >20mins now).
Andrew Webster QC confirms the earlier headline news: UK Government has told Scotland’s Court of Session that the requirement to send a letter to extend Brexit deadline under the Benn Act will be abided by. “It could not be clearer,” he tells the court.
What Webster says next explains why UK Government has made this statement to court - even though it’s politically contradictory. He says this shows the legally challenge has been answered.
Lord Pentland asks why, if this is the case, they won’t make undertakings through sworn affidavit to make this crystal clear.
Webster: “It wouldn’t add anything.”
“It would,” contradicts Lord Pentland, in the snappiest part of the hearing so far!
I’m enjoying sceptical Lord Pentland.
Pentland to Webster: ‘You’re not suggesting that the law officers of the UK Government are not subject to the same standards as all citizens to make representations to this court?’
UKGov failing to fully engage not going down well, it seems.
Lord Pentland reinforces a suspicion of why UKGov will not give sworn affidavits but prefer to make statements in pleadings - they don’t want any UK Gov officials cross questioned. “This is all highly unusual,” Pentland says. [Cherry case followers will remember this theme]
Lord Pentland asks why he should not bear in mind government’s failure to provide undertakings to the court.
Webster says he should not draw negative inferences from this.
Key government point by Webster: UK Ministers are making statements contrary to Benn Act as the Act is not their policy. Argument being that they are free to oppose it as a matter of politics & policy, while stating they will abide by the law as it stands on October 19.
Webster says the Government is legitimately making statements to advance the ongoing negotiations, statements of intent to get the best deal. He says the EU has re-engaged as a result & so this approach is “effective”.
Lord Pentland asks if the UK Government has made as full a statement anywhere else as it has provided to this court on being willing to send the letter.
“No,” Webster confirms.
This is the extract image I shared earlier today.
Lord Pentland shoots down Parliamentary Privilege shield claims. Says reference to Hansard statement has happened “numerous times”, particularly by the government itself in public interest litigation! I’ve never seen this line successfully argued... (one for you @Scott_Wortley!)
“After this there’s not a great deal more,” says Lord Pentland referring to the government case. Judicial theatre & the subtlety of its put-downs is my new favourite sport. 😅
Lord Pentland: Why would providing undertakings on article 8 (saying it would send the letter) tie the hands of the government in negotiations? If you’ve accepted it in a pleading what’s the difference?
No clear answer given.
Webster: “we seem to be going round in circles here.”
Lord Pentland: “That’s because I raised it again.”
This goes to the heart of the matter - can you trust what the UK Government says to the Court? And will it even abide by the spirit & letter of the law & orders?
Anyone who followed the Cherry case will know you can’t trust what the UK Government tells the Court of Session.
They said prorogation was an “academic” & “hypothetical” situation while Downing Street was drawing up its prorogation plans - it’s legal team presumably uninformed.
Webster finally turns to the motion for specific implement (performance of a requirement - in this case the duty to send the A50 letter). Webster on firmer ground raising doubts about when any court can take action - when would Boris have broken the law?
Webster’s case easier to understand here. There would be no breach until after 19 Oct, the legal letter deadline.
But Pentland even picking away at this - saying Court of Session can act when it appears a duty will be breached.
Webster concludes his submissions. O’Neill rises again for petitioners to respond - immediately goes to article 8 in UKGov pleadings. Starts quoting BBC website - & ‘senior number 10 source’ attacking the purpose of the Benn Act.
Quite something. O’Neill reading out unattributed briefings from Number 10 directly to the Court of Session just an hour after it’s been issued - that the Government seeks to sabotage any extension. O’Neill pointing out contradictory messages are being issued to court v public
O’Neill essentially pointing out the government is contradicting its own evidence to this court in live time - they tell the court they won’t frustrate legal requirements of the Benn Act. As soon as this was revealed, they say they will frustrate the law.
O’Neill: This proves total inadequacy of relying on what UK Government tells this court. ‘No doubt the Prime Minister’s ability for self-deception exceeds his ability to exceed others.’
O’Neill: Johnson thinks he’s an honest man sent to lie to foreigners for the good of the country. But he’s lying here too. This is why we have been forced to take this action - for the constitution & the rule of law.
O’Neill rebuts arguments on competency given by Webster. Says the petition is competent, based on pre-existing authorities. Standard judicial review not suitable in this case, he explains.
O’Neill concludes. Pentland thanks parties for effective handling. Decision to be issued on Monday. Thanks everyone for following! ☺️
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