tv BBC Newsroom Live BBC News September 17, 2019 11:00am-1:01pm BST
report, page or 471, on the second page of that, 409, the third paragraph up from the bottom, we see that mrjohnson is speaking to the bbc and on the final page, on the penultimate page of this document, 410 or 473, about a third of the way down the page, there's a paragraph, mrjohnson said, "the best way to leave with a deal is if our friends and partners over the channel don't think that brexit can be somehow blocked by parliament". as long as they think in the eu that parliament might try to block brexit, or might even succeed in blocking brexit, the less likely they are to give us the deal that we want.
iam not i am not asking this court to say whether the prime minister's assessment is correct or incorrect. the relevance is that they are strong evidence to be added to the material referred to by the inner house as to the prime minister's motive in trying to close parliament for five weeks during this negotiating period. the other point i want to make on the facts is that it is, we say, a remarkable feature of these proceedings that the prime minister has not made a witness statement explaining why he decided to advise her majesty to prorogue
parliament for a period as long as five weeks. and that is even though we made very clear in commencing these proceedings that an important pa rt of these proceedings that an important part of our case is that the prime minister's advice to her majesty was motivated, or at least strongly influenced, by the prime minister's desire to prevent the risk, as he saw it, of parliament damaging government policy. and we set that out in our statement of facts and grounds dated the 28th of august, which is in the bundle. if the prime ministerdid which is in the bundle. if the prime minister did not wish personally to make a witness statement, such as statement could have been made by
the cabinet secretary, as in the gchq case. the only witness statement from the government side is from the treasury solicitor, who statement is confined to the production of documents. the treasury solicitor, mrjonathan jones, could not give evidence as to the prime minister's reasons for advising a five week prorogation. my ladies, my lords, of course the production of a witness statement from the prime minister or anyone else setting out the reasons for advising on a prorogation as long as five weeks would have had legal consequences and the legal consequences and the legal consequences of consequences and the legal consequences of such a witness statement would have been almost inevitably an application to cross
examine. the legal consequences would also be that it would be a contempt of court, of course, for such a witness statement not to tell the truth. our submission is that the truth. our submission is that the documents pose more questions than they answer, as the inner house has pointed out, and in any event, the production of those documents is no substitute for evidence from the prime minister or from someone on his behalf stating to the court in terms why he thought a prorogation for the exceptionally long period of five weeks was appropriate. we draw attention to the decision of the court of appeal in an earlier case.
this appears, i hope, in the supplementary authorities bundle, supplemental authorities bundle, at tab number19. it supplemental authorities bundle, at tab number 19. it is volume one of the supplemental authorities bundle. volume one. i hope is it tab 19. it does not have, i'm afraid, a page number. it is 292 on the supplemental authorities.|j number. it is 292 on the supplemental authorities. i am grateful. supplemental authorities volume one, tab 19, against the home secretary. and the relevance of this case is that it approves the test stated at
first instance by my lord justice, sitting at first instance in that case, as to the applicable test releva nt case, as to the applicable test relevant to this principle that i am relying upon. and that appears in this case, using the numbering in the report right at the end, page 3565. i'm afraid some of us are struggling here. i have got a supplemental authorities bundle that goes up to tab 12. 0h, supplemental authorities bundle that goes up to tab 12. oh, dear. i have got a supplemental authorities bundle volume two, which starts at 35. but you want one in the middle. iam 35. but you want one in the middle. i am terribly sorry. maybe the best thing to do is to hand up to those members in the court, and i
anticipate from the science i am receiving, that the deputy president is in the same position. so we need a numberof is in the same position. so we need a number of copies please, urgently. can we just have tab number 19. i am terribly sorry about this. what page? within the report, 3565. we don't have it here. tab 19. the updated supplemental authorities bundle. it should have been updated. it is in the what? 1481 in the
cherry bundle. yes, it is also in the bundles authority... ah, yes. number13. yes, i have that. lots of discussion in the supreme court of bundles and tabs. a bit of sorting out of paper work going on but let me just refresh you on the three main points that lord pannick, who is acting for gina miller in this case about whether it was lawful or not for boris johnson this case about whether it was lawful or not for borisjohnson to suspend parliament, there are three main points he said they are arguing on, they say that the prime minister advised the queen to prorogue parliament for as long as five weeks because the prime minister thought parliament would frustrate his
plans. lord pannick said that the prime minister had failed to produce witness statements as to his motive for doing that. secondly, he said they were arguing that it is elementary in public law that power may be only exercised for a proper purpose. and they are arguing therefore that the government exercised this power to suspend parliament for an improper purpose. and lord pannick, as you can see, is speaking again. submitting that there is no obligation to file witness evidence. she erred the court not to punish the secretary of state for not filing evidence. she referred to the scarcity of resources, heavy litigation burden, they need to prioritise resources, none of which factors are relied on in the present
case. and the court of appeal then approves the statement at first instance by the judge. approves the statement at first instance by thejudge. he approves the statement at first instance by the judge. he observed, where a secretary of state fails to put before the court witness statements to explain the decision—making process and the reasoning underlying the decision, they take a substantial risk in general litigation where a party elects not to call available witnesses to give evidence on a releva nt witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party. the basis for drawing adverse inferences of fact against the secretary of state in judicial review proceedings would be particularly strong because in such proceedings, the secretary of state is subject to the stringent and
well— known obligation owed to the court via public authority facing a challenge to its decision. in the words of lord walker for the board in another case, to cooperate and to make candid disclosure of the releva nt make candid disclosure of the relevant facts and so far as they are not apparent from contemporaneous documents that have been disclosed, the reason behind the decision challenged in the judicial review proceedings. and we rely on that statement of principle. we say that at best, at best, from the prime minister's point of view, the prime minister's point of view, the documentary material, that is the documentary material, that is the material referred to by the inner house and the statements to broadcasters to which i have
referred, are at best from the prime minister's view ambiguous about whether his concern about parliament potentially damaging negotiations was his motive, or an important part of his motive, for advising on an exceptionally long prorogation. we say this case cries out for an answer ina say this case cries out for an answer in a witness statement to the allegation that was made against the prime ministerand, in allegation that was made against the prime minister and, in the absence of such a witness statement, the willingness of the prime minister to submit potential cross examination, we say the court should infer that there is no answer. you might want to check. i think this question about drawing inferences in the
absences of reasons... i am going to come to padfield. you are correct. there are many cases where this point has been addressed. i was also going to mention the gchq case, where of course issues were raised about national security, whether or not the decision of the then prime minister to remove the right to trade union representation at gchq without consultation because of national security considerations was the subject of witness evidence. it was the subject of an affidavit from the cabinet secretary and the appellate committee in that case, notwithstanding the very sensitive subject matter, made it very clear
that the government needed to produce evidence to support their claim that they were national interest —— national security considerations. sir robert armstrong produced an affidavit. it may not matter but i think lord walker... you said for the board, i think he was descending. i don't think that statement was very clear. we can check that. it has certainly been accepted as the judgment of lord sales, approved by the court of appeal in that case as the governing principle, certainly in the context of public law. that if an allegation is made, a factual allegation, and
the material is at least ambiguous, one expects the minister or someone one expects the minister or someone on his behalf to answer.|j one expects the minister or someone on his behalf to answer. i am not questioning the principle.|j on his behalf to answer. i am not questioning the principle. i take your point. can we see it if we can find that? it may be that there isn't, otherwise lord sales would have referred to some approval, i'm sure, of the principal stated, but we say that is the principal. can i show the court the gchq case. that is in the miller bundle of authority is in the miller bundle of authority is volume one, and it appears at tab number11. and the relevant passages, a very
familiar case, of course, the releva nt familiar case, of course, the relevant passages that we rely upon, first page 404. just under e. do you know the electronic member of that or again are you unable to help us? volume one, it is at tab 11. page 31 of the 51 pages. i'm afraidi i'm afraid i don't have the electronic numbering. he says the point of principle in the appeal is
to the duty of the court when proceedings are brought before it that the question arises as to what is required in the interests of national security. then picking it up national security. then picking it up again, though there are limits dictated by law and common sense which the court must observe in dealing with the question, the report does not abdicate its judicial function if the question arises as a matter of fact, the court requires evidence to be given. if it arises as a factor to be given in reviewing, evidence is also needed to determine... 0n the preceding page, page 403, the court sees that there was evidence from sir robert armstrong, the then cabinet secretary, who addressed the
releva nt cabinet secretary, who addressed the relevant issue of fact. and at page 420 of the report, e, 420, the courts have long shown themselves sensitive to the issue is shown by the executive that considerations of national security must preclude judicial investigation, but even in that field, the courts will not act on the mere assertion that questions of national security would involve, evidence is required that the decision is in fact founded on those grounds. that is, i think, decision is in fact founded on those grounds. that is, ithink, beyond doubt. and then it goes on to the
merits of the matter. so we respectfully submit that on the facts of this case, the inner house was correct in its analysis and conclusion as to the motive of the prime minister. their conclusions, we say, are supported by the prime minister's own public statements as to his concerns as to what parliament may do and the court, in addition, should be prepared in the circumstances of this case to draw an inference from the absence of any evidence on the government's side by way of witness statement as to the
answers to the allegation from the prime minister or the cabinet secretary on his behalf. we submit that on all the material, the court should conclude that but for the prime minister's wish to avoid parliamentary control, he would not have recommended to her majesty a prorogation for a period as long as five weeks. but he would have recommended a substantially shorter period in order to allow for a queen's speech, the closing of one session, the opening of another, as had occurred on every occasion, that isa had occurred on every occasion, that is a shorter prorogation, on every occasion in the last 40 years. if
the court accepts our submission that there was here an improper motive, it is for the prime minister to satisfy the court that it was not material to the decision that he took, and he can't do that in the absence of any affidavit or witness statement. that is what i want to say in answer to the first part of the case. lord keane will respond for the government by way of answer to the decision of the court of session and my friend mr o'neill will have the opportunity to address the points, but that is what i want to say in opening on that part of the case. can i turn to the law, the second part of my submissions concerns our intention that for the
prime minister to advise her majesty to prorogue parliament for a period of five weeks in order to avoid what he saw as the risk of parliament undermining his negotiations is to use the prerogative power for an improper purpose. and we say it is well established in public law that a power conferred on the executive may only validly be used if it is for a proper purpose. excuse me.
and this is a principle that can be traced back to the 17th century and traced back to the 17th century and traced back to the 17th century and traced back in modern times to padfield. and the matter is addressed by the learning authors, which i hope the court will find in supplementary authorities act tab 16, although that to... the smiths -- judicial 16, although that to... the smiths —— judicial review. 16, although that to... the smiths -- judicial review. tab 16 of supplementary authorities volume one. i think the supplementary authorities bundled is titled updated supplementary authorities.|j am grateful. it is electronically, at least.
there is apparently, i am told, an envelope that some members of the court may have with the updates. that may be the answer. yes, because i had one, but i had opened the envelopes. that is the explanation. i appreciate some members of the court may not have appreciated... we will sort this out but i hope that members of the court will have the updated material. it is tab number 16. iam updated material. it is tab number 16. i am grateful. that is the answer. it is probably not the most difficult question in this case but it is the answer to that question. but well spotted by the young lady
behind you. the court will see at paragraph 5009, which is the second page of this insert, that the learning authors, they describe the origins of this principle back to the 16th century. the court will no doubt wish to look at that, but at five — 018, we come to modern times and we come to the decision in 1968 that padfield was an important landmark and it reminds us of the context the minister had refused to appoint a committee as he was statutorily empowered to do at his discretion to investigate complaints made by the milk marketing board that the majority of the board had fixed milk prices in a way that was
unduly favourable to the complainants. the house of lords held that the minister's discretion was not unfettered and the reasons he had given for his refusal showed that he acted ultra vires by taking into account factors that were legally relevant and by using his power ina legally relevant and by using his power in a way calculated to frustrate the policy of the act. and we have padfield in the same volume, tab18... we have padfield in the same volume, tab 18... but this is we have padfield in the same volume, tab 18. .. but this is a statutory. yes, i have to satisfy the court that the same principle applies in the context of a prerogative power. it sets out the basic principle. can i very brieflyjust identify what the basic principle is and it is lord read at page 1030. between c
and g. parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the act and they must be determined by construing the act as a whole. construction is always a matter for the court. if the minister, by reason of having misconstrued the act or for any other reason so uses his discretion as to thwart or run counter to the policy or objects of the act, i work law would be very defective if persons aggrieved were not entitled to the protection of the court so it is a necessary first to construe the act. and then over the page, at page 1032, is the point my lord deputy president was referring to. it was argued that the minister is not bound to give any reasons for refusing to refer a
complaint to the committee, that if he gives no reason is his decision cannot be questioned and it would be very unfortunate if giving reasons where to put him in a worse position, but i do not agree, says lord read, that a decision cannot be questioned if no reasons are given. if it is the minister's duty not to act so as to frustrate the policy or object of the act, and if it were to appear from all the circumstances of the case that that has been the effect of the minister's refusal, thenit effect of the minister's refusal, then it appears to lord read that then it appears to lord read that the court must be entitled to act. and then i emphasise the following sentence. a numberof and then i emphasise the following sentence. a number of authorities we re sentence. a number of authorities were cited in the course of the argument but none appeared to lord read to be at all close to the present case. in other words, his lordship was not deterred by the absence of a clear precedent, his
lordship proceeded as i am inviting this court to proceed by reference to principle. the speeches of the other members of the appellate committee were to like effect, and without taking the court through them, at 1049, 1053, 1061. it might be said that there is a different nuance here from the passage you cited. rather than drawing an analogy with the failure in ordinary proceedings to lead an available
witness and therefore being inclined to draw an adverse inference against a party, it is put here more in terms of looking at all the circumstances and deciding what inference should reasonably be drawn. but in my submission, the absence of a witness statement that addresses what is otherwise at least addresses what is otherwise at least a strong prima facie case is a releva nt a strong prima facie case is a relevant consideration for the court to address. public law has moved on in my submission since 1968. the approach in 1968 was that the minister cannot simply say, i have no duty to give reasons. the modern law is strongly influenced by the development of duties of disclosure and a recognition that a minister can be expected specifically by
evidence to address a complaint. but i recognise this case is not of itself authority. but it is also interesting that lord reed was speaking of if it were to appear from all the circumstances of the case that that had been the effect of the minister's refusal. to do what he should have done. yes, indeed. one looks at the consequences of what is happening. it is the purpose and the effect of which are both relevant in this context. if the effect, if the inevitable effect is to frustrate the operation of parliamentary procedures, that assists in identifying the motive of the minister. that might it be unlawful
if the effect was to do that, even if the effect was to do that, even if that was not determined to be the motive? that is our alternative way of putting the case. we had put the case at all stages by reference to the motive of the prime minister and by reference to the inevitable effect that the prime minister's decision to close parliament for five weeks, inevitably, in the context of this case, has a very damaging impact on the ability of the legislature to scrutinise the actions of the executive. indeed so. and we are not wedded to a solution that involves a finding of a wrongful motive. we put a case in both ways. your complaint is about
the effect on parliamentary accountability, parliamentary scrutiny, the ability to legislate. evenif scrutiny, the ability to legislate. even if there had been no intention to block all that in order to pursue a different government policy, you would still have the same complaint, would still have the same complaint, would you not? a stronger complaint would you not? a stronger complaint would be that you are putting it in a different way. one can put it either way. at its very lowest, the prime minister's decision to provoke for a period as long as five weeks, in effect prevents parliament from performing its scrutineer functions over the activities of the legislature. —— prorogue. it means
parliament cannot legislate and it cannot inform itself for the purposes of legislating by the asking of parliamentary questions, by holding parliamentary debates, by the report of parliamentary committees, all at a time when we say it is self evident that parliament will, or may, wish to carry out such activities. do we have evidence about questions being put and not being answered as a result of the prorogation? once parliament is prorogued, it is not possible for parliamentary questions to be tabled. where any tabled and not answered ? to be tabled. where any tabled and not answered? the questions that we re not answered? the questions that
were asked before prorogation, i do not have the material. as a matter of principle, any development, and there are inevitably developments, as from the 9th of september, cannot lead to any parliamentary question being asked, written or oral by any memberof being asked, written or oral by any member of parliament. parliament is closed. you as a member of parliament, as a member of the commons, as a member of the lords, ask any question. that is made clear in material before the court. it is made clear if the court wants to have document, in a briefing paper from the house of commons, which is in the main bundle at... the hearing bundle, trial bundle, tab 29, the
house of commons briefing paper. it is page 169. adding 63 pages, takes us is page 169. adding 63 pages, takes us to 232. i had it at tab 29 of the bundle. and the relevant passage, if the court has that document, is at page 180 in the paper version 223 in the electronic version, in the middle of the page. neither has of parliament sits. during prorogation, parliament sits. during prorogation, parliament does not meet and that means legislation cannot be considered or introduced by mps and peers. debates in the chamber and westminster hall are not held
written and oral parliamentary questions cannot be asked. committees do not carry out usual business of enquiry and evidence taking. temporary suspension of activities not normally significant asa activities not normally significant as a new session typically begins shortly thereafter. for a longer prorogation however, this suspension of activity we is the ability of parliamentarians to hold the government to account. that is the undisputed position. inevitably, thinking about your ladyship's question, there will inevitably have been parliamentary questions that we re been parliamentary questions that were pending on the 9th of september, which will not have been answered and will not now be answered and will not now be answered until the 14th of october. but the point i emphasise is that parliament is prevented from responding to whatever developments there may be and it is not difficult
to see that there are and will be developments as from the 9th of september. do we have evidence of what business last? there were a number of bills. we can try to find out for the courts. some of the bills, i accept, out for the courts. some of the bills, iaccept, will out for the courts. some of the bills, i accept, will be reintroduced once parliament resumes. that is not an aspect you rely on particularly. it is not in the forefront of my submissions. at the forefront of my submissions. at the forefront, the circumstances of this case, we say, the plane effect of the prime minister's decision that parliament will not sit for five weeks is to prevent parliament from performing its scrutineer functions, which include legislation, in response to whatever developments there are and whatever developments there are and whatever
developments there are not. an important part of this case is the distinction between parliament and going into recess and prorogation. an important feature of prorogation is, in those circumstances, bills and current consideration are lost. precisely so. it would be of great interest to know which bills were last? we can find out. we will find out the answer to the question put by the president. of course, during a recess by contrast with prorogation, parliamentary questions can be asked and they answered. during a recess, parliamentary committees continue. produce their reports. of course, a recess is a judgment made by parliament itself.
parliament decides when it is going to recess. there is a need for a nation before the house. just finishing this submission, padfield, the authors, and i was showing the court relevant passage, they make the point in supplementary authorities, it was tab 16. they make the point at paragraph 5.0.90. 90 or19? make the point at paragraph 5.0.90. 90 or 19? 90. this make the point at paragraph 5.0.90. 90 or19? 90. this is an make the point at paragraph 5.0.90. 90 or 19? 90. this is an elementary proposition. that is the power granted for one purpose may not be exerciseable a different purpose. is
elementary. did a deal with the issue —— this issue? elementary. did a deal with the issue -- this issue? not that i am aware. we have not found such a statement. in the context of a statutory power, identifying a proper purpose for which the power may be used is, as lord reid said, a matter of construing the legislation, assisted of course by legal principles which the court applies. in the context of a prerogative power, the exercises more complex because there is no statute stuff we say it is not different in principle. it is still for the court to identify what other purposes, what are the impermissible purposes, what are the impermissible purposes, for which the power may be exercised. this has been the subject
of analysis by professor mark elliott. can i invite the attention of the court again to the supplementary authorities? and it is tab 15 of the supplementary authorities. and it is the analysis by professor mark elliott, published on the 12th of september, relating to this case. and it is in the light of the judgment of the divisional court. it's difficult to please goes to the second page of this document... —— as if the court. in then evhow of, professor elliott has dealt with this. once it is
established, and other crucial matters followed. first is the widely recognised principle that no government legal power is unfettered. all legal powers by the government are legally finite and boundaries are determined among other things by reference to the purposes for which they may or may not be used. there is no good reason why they should not apply in the case of prorogation. it follows that there powers are legally limited among other things by reference to the purposes for which they may or may not be legitimately used. what those purposes are are a legal question for determination by the courts in the ordinary way. when such questions arise in connection with statutory powers, they are as old first and foremost by means of statutory construction. that is the
legislative text is examined and construed by the court. however, the purpose of statutory construction is rarely a purely literal one. it entails a course to nothing more thana entails a course to nothing more than a dictionary and it frequently involves adding meaning to statutory text by reference to broader, legal and constitutional principles. he says this is so well established that authority is not needed but he cites deb robinson case, the sims case and the fire brigades union, volume three tab 42. he then says in the next paragraph in the case of prerogative powers there is no starting point, such as is when statutory powers are in it may be
difficult to determine the boundary of the powers. it does not however follow that no such boundaries exist, nor does it follow that question is asked to the locations of such boundaries are anything other than legal questions, just as fundamental constitutional principle may cast light on the proper meaning of statutory text and thus on questions about the proper and improper use of statutory powers. fundamental principle may eliminate and determine the boundaries of prerogative power, including the purposes to which they can and cannot lawfully be put. on the next page, in the paragraph, then you, a third of the way down, in these cases, the question is therefore whether they use to which the power has been put results in the boundaries of the power having been exceeded, with reference to any
purposes for which the power may not lawfully be exercised. the court rightly noted there are several purposes for which the power can lawfully be exercised but the question here is whether the power has been used for a purpose for which it cannot be so exercise. that raises questions of evidence and legal principle that he says he takes no position on the evidential question. two legal questions then arise. is the style of parliament, the inner sessions, the inner houses phrase, is it a purpose which the prorogation power can lawfully be exercised in dealing with something the court can legitimately do? notwithstanding all of their fury, neither of those questions, it seems to him, raises especially controversial or difficult legal or constitutional questions. their first question falls to be answered
by fundamental constitutional principle. one such principle is the nature of democracy in the uk and institutional arrangements, including executive accountability to parliament that are thereby necessitated. the course to such principle and determining limits of the power should hardly be a controversial step, nor should the conclusion it is incompatible with the nature of parliamentary democracy for the executive to have illegally unfettered power to suspend the operation of parliament to shield the executive from parliamentary scrutiny. that is our case. interesting enough, even someone as case. interesting enough, even someone as knowledgeable on the subject as elliott, does not have any authority to support what he says. he says it is constitutional principle. his argument were just as a statutory power... i understand the argument that it would be comforting to have some authority.
-- is comforting to have some authority. —— is that it would be comforting. we will come to that. the difficulty is the absence of occasions for which these powers have been used with effect two undermine a basic constitutional principle, that is here parliamentary sovereignty. that has not occurred. just as in the padfield case, lord reid said he was not... his lordship was not deterred by the absence of a precise precedent, my submission to the court is it should not be deterred, it should provide fundamental principle. the fundamental principle that no power enjoyed by the executive may be used with the purpose, or with the effect, of
undermining fundamental principles of law. their second limb of the argument is that it does undermine, either as argument is that it does undermine, eitherasa argument is that it does undermine, either as a matter of purpose or as a matter of inevitable effect, a fundamental principle of the constitutional law, which is that the executive is answerable to parliament and here the purpose and slash your effect of the decision is to remove such accountability, such scrutiny, at a vital time. —— and/or. it is notjust professor element he makes his points. the other leading academic authority is professor craig of oxford university and his analysis is in the same bundle, tab 13. could i invite the attention of the court to tab 13,
professor paul crane, professor of english law at oxford university? i commend all of this to the court. had ijust commend all of this to the court. had i just emphasise commend all of this to the court. had ijust emphasise at tab 13, their second page, in the middle of their second page, in the middle of the page... and there is a paragraph in the middle. he is dealing with the argument of the divisional court. he says, if we accept such an argument that we recast the boundaries of parliamentary savagery as traditionally conceived. parliament remains omnipotent in the sense there are no bounds to its legislative authority but the executive can determine when parliament exercises that legislative authority. it can choose to prorogue parliament whenever it
wishes, in order to prevent parliament exercising its voice through legislation or otherwise commit merely because the executive believes that what parliament might do is undesirable. the decision by the executive in this respect is legally unchallengeable, irrespective of the ground on which the prorogation decision is based. if this represents the law, then every textbook, and essay on constitutional law has missed this crucial qualification to the sovereignty of parliament. professor crane puts it the other way around. he says that if it were really to be the constitutional of this country that the executive may act for the purpose, or with the inevitable effect of silencing parliamentary scrutiny, then one would expect to find some authority to support that
contention and there is none. we therefore submit base, as i say, that it therefore submit base, as i say, thatitis therefore submit base, as i say, that it is a basic principle of law that it is a basic principle of law that public powers may only valuably be exercised but they are not intended to, do not have the effect of undermining constitutional principle, and we say here that either the purpose of the prime minister, or the inevitable effects of his decision is to silence parliament unnecessarily because it does not need to close for five weeks in order for there to be a queen's speech and constitutional principle. what is the principal? it isa principle. what is the principal? it is a principle of common law as to
parliamentary sovereignty. can i ta ke parliamentary sovereignty. can i take that first miller place? it is in the authorities bundle. —— miller case. at tab number 29. bundle three, tab 29. i take the course at first to the judgment of the divisional court, that of course was lord thomas chief justice and my lord, lord sales, and the relevant passage is at page 73 of the report. at paragraph 18, the
uk does not have a constitution to be found entirely in a written document. this does not mean that there is an absence of a constitution, or constitutional law. on the contrary, the uk has its own form of constitutional law as recognised in each of the jurisdictions of the four constituent nations. some of it is written in the form of statutes which have particular constitutional importance, some of it is reflected in fundamental rules of law. i emphasise of law. recognised by both parliament and the courts. there are established and well recognised legal rules, which govern the exercise of public power and which distribute decision making authority between different entities in the state to define the extent of their respective powers. the uk as a constitutional democracy, framed by legal rules and subject to the rule
of law. the courts have a constitutional duty, fundamental to the rule of law, in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws. and in this court, at paragraph 45, which is on page 138... at the bottom of page 138, paragraph 45, we are told, the crown's administrative powers are now exercised by the executive, that is by ministers who are answerable to the uk parliament. however, consistently with the principles established in the 17th century, the exercise of those powers must be compatible with legislation and the common law. the
court added, at paragraph 90 which is on page 152, just above c, bearing in mind this unique history, and the constitutional principle of parliamentary sovereignty, it seems most improbable that those two parties, that is parliament and the courts, had the intention, or expectation, that ministers constitutionally their junior partner in that exercise, could subsequently remove the draft without formal appropriate sanction by the senior partner in that
exercise. ministers are constitutionally the junior partner. and the real issue in this case is whether the junior partner may lawfully remove the scrutiny of its activities by their senior partner, either with the motive or having the effect of removing such scrutiny on vitally important questions. there is of course a good constitutional law reason why ministers are the junior partner and parliament is the senior partner. and that is explained by lord hoffmann for the board, for the majority of the board
ina case board, for the majority of the board in a case which appears in authorities number two, at tab number23. authorities number two, at tab number 23. this is a very familiar case to the court. and the relevant passage is volume two of the volume miller, tab number23. the passage is volume two of the volume miller, tab number 23. the relevant passage is paragraph 35, which appears at page 482. paragraph 35, page appears at page 482. paragraph 35, page 482. lord hoffmann, for the majority of the board. the fact that auditing cancer resemble axa
parliament does not mean a share all their characteristics. —— auditing council. over the past 350 years, this is founded upon the unique authority parliament derives from its representative character. an exercise of the prorogative lacks best quality. it is still an exercise of power by the executive alone and that is why the executive is to use the phrase of the court, the junior partner in the constitutional exercise. one other authority, to like effect, which i mentioned in opening, is the fire brigade union case, to be found in volume three of the miller
authorities, at tab number 42. volume three, tab number 42. and the releva nt volume three, tab number 42. and the relevant passage is at page 552. of the minister's refusal. to do what he should have done. in the speech of lord browne wilkinson, it isjust under e on page 552, the constitutional history of this country is the history of the prerogative powers of the crown being made subject to the overriding powers of the democratically elected, and i emphasise those words, democratically elected legislature as the sovereign body.
and it is our submission that the case for the crown in the present proceedings necessarily has to contend for the reverse. that the powers of the democratically elected legislator as the sovereign body are subject to the decisions of the executive as to when the executive enjoys, it is said, a discretion, complete discretion, to remove the powers of the democratically elected legislator. in terms of motive or effect. and that was in substance the reasoning on this issue of law
was not deterred by the argument there is no authority for this. lord coe, like lord reed in 1968 resolved the question by reference to fundamental principle. the argument was, leave it to the king. more recently, of course, there is the fire brigades' union case that the home secretary could not frustrate parliamentary sovereignty. but parliamentary sovereignty has also been used as the basis for other decisions by the courts. it has been used as the basis for recognition of parliamentary privilege. in another case, i don't have time to go for it, and parliamentary supremacy was also relied upon by my lord the deputy president in this unison case asa
deputy president in this unison case as a foundation for the general constitution and principle of the rule of law. it meant that there we re rule of law. it meant that there were limits on the ability of the lord chancellor to impose fees for those who wish to bring employment tribunal cases. my lord was not deterred by the difficulty of identifying when a free would become lawful, how much free is appropriate did not deter your lordship on behalf of the courts from saying that the approach of the lord chancellor was an unlawful one because it denied in practice access to the courts and that was a breach of the rule of law red with parliamentary sovereignty. all of the cases, my submission, all of the cases are simply illustrations of
the basic principle of our constitutional law, and the basic principle is that parliament is supreme. the executive is answerable to parliament. and this legal concept of parliamentary sovereignty is not confined to cases where the executive ignores or frustrates an act of parliament, it must also apply to cases, and this is a unique case to answer, it has never before occurred, it must also apply to cases where the executive takes a decision with the purpose or effect of removing the ability of parliament to legislate. indeed, it isa parliament to legislate. indeed, it is a greater breach, or could be a greater breach of parliamentary
sovereignty to prevent parliament from legislating as it sees fit than it is for the executive to defy a particular law. the inferior body, the junior partner, cannot validly use its constitutional powers for the purpose or with the effect of preventing the superior body from performing its constitutional functions. particularly when that constitutional function is the scrutiny of theirjunior partner itself. that is the principal for which we contained. and there is a further analysis by professor paul craig that i commend to the court.
it is in the miller authorities volume five. and it appears at tab number79. this was published on the 31st of august by professor craig. tab number79 of august by professor craig. tab number 79 of volume five. he refers in the second paragraph to the leading cases. in the fourth paragraph he says, the salient issue in relation to prorogation is whether the prime minister's discretionary power should be limited pursuant to the principles underlying the case law set out above. he says the argument for an affirmative answer is compelling and he says there are two related
reasons. first, to contend there is some difference between existing case law and the present situation does not withstand normative examination. the reality is to the contrary. the rationale for intervention to protect parliamentary sovereignty is even stronger than in the preceding cases. consider the following two propositions. parliament has enacted a statute, the executive seeks to circumvent it by recourse to the prerogative. the court intervened to protect parliamentary sovereignty. and it does. parliament wishes to exercise its legitimate authority through enactment of a statute or in some other way. the executive precludes this through prorogation and the court is said to be powerless to intervene. this distinction makes no principled sense, more especially because the latter abuse of discretionary power is more far—reaching and significant than the former. the former impacts
only on a particular statute, the latter constitutes a pre—emptive strike that takes parliament out of the entire game for the crucial period during which it is prorogued. it affects not merely one piece of legislation but its capacity to exercise the totality of this legislative authority, there by severely curtailing the authority —— opportunity... this is more over the reason whyjudicial intervention in this instance would not seek some intrusion in this terrain, the use of prorogation in this instance is singular and warrants judicial intervention. secondly, the case for intervention. secondly, the case for intervention is also compelling because of the impact of the abuse of power in relation to prorogation on the sovereignty principle itself. the sovereignty of parliament is the foundational principle underlying
the unwritten uk constitution. this sovereignty resides with parliament, not with the executive. and he says that it represents a challenge to sovereignty since the executive in the standard case seeks to bypass an existing statute through recourse to the prerogative. it was for this very reason the house of lords intervened to prevent the prorogation scenario is more far— reaching prorogation scenario is more far—reaching in its impact on sovereignty. the political discussion of prorogation by the present government is predicated on this current situation. this cannot be constitutionally correct. to prescribe to such reasoning diminishes parliamentary sovereignty asa diminishes parliamentary sovereignty as a foundational principle. it transforms the uk constitutional order such that the cards become stacked in the executive's favour. we rely on all of that.
cani can i ask, if it were put to you that the, that the government, that parliament is indeed sovereign and the government is accountable to parliament, when parliament sat in early september, if it were sufficiently concerned about the prospect of prorogation, —— prorogation, it could have helped the government to account by enacting a vote of no confidence. if parliament had held its hand, should the courts intervene. my answer to thatis the courts intervene. my answer to that is that it is well established that is that it is well established that the executive is answerable to parliament for matters of policy. but the executive is answerable to the courts for matters of law. and i
respectfully submit that this court is simply not concerned with whether or not the prime minister could command the confidence of the house of commons, whether a vote of no confidence could have been brought or the consequence of it might have been. that is, in my submission, no answer, with respect, to the accountability of the prime minister to this court for the legality of his conduct and the authority for thatis his conduct and the authority for that is again the fire brigades' union case. could i take the court back to authorities volume three. the miller authorities volume three.
it is at tab number 42. and the relevant passage appears at 572, again in the speech. this is in the speech of lord lloyd of berwick, at 572. volume three, tab 42. page 572. bottom of the page. lord lloyd says, no court would ever deprecate, or depreciate, sorry, or call into question ministerial responsibility to parliament. you are watching the supreme court hearing into whether or not the suspension of parliament is lawful. lord pannick qc for gina miller
arguing it is unlawful, saying that but for boris johnson's wish arguing it is unlawful, saying that but for borisjohnson's wish to avoid parliamentary scrutiny, he would not have recommended a five—week suspension to the queen. we are saying goodbye now to viewers on bbc two. thank you for watching. because they are accountable to parliament for the way in which they carry out their functions. they are accountable to parliament for what they do so far as regards efficiency and policy and of that, parliament is the onlyjudge. they are responsible to a court ofjustice for the lawfulness of what they do and of that, the court is the only judge. we rely upon that fundamental principle. and i respectfully submit that if that argument were to be
advanced against me, that parliament could have expressed its dissatisfaction with a vote of no competence, it is to blur the arguments of policy with the arguments of policy with the arguments of policy with the arguments of law. it is simply no answer to our submissions if they ever debbi'es be correct. and if i am able to show that the prime minister's advice to her majesty was unlawful, there is no answer that they could have been, in this or in any other case, a political solution. indeed, that could always be the answer to a judicial review. it could be said in the unison case, in the gchq case, in the miller case, that the prime minister is answerable to parliament. in my submission, legally, that is quite irrelevant, if and to the extent, as is here the case, that the issue is
a question of law. you will also seek to say that the consent of a sovereign would have been required if parliament had limited the government's... if parliament had limited the government's. .. your ladyship is completely correct, that would not have been an answer to the question put to me however by the deputy president, because the consent of the sovereign would not have been required for a vote of no confidence, but if the argument were to be put, and it is but i think in the prime minister and the advocate general's case, that what could have happened was a bill to remove prorogation, to alter prorogation. this is put in paragraph nine of the written case. that would not be
available because a bill which touches upon the prerogatives of her majesty, this is the point your ladyship is putting to me and i respectfully agree, a bill that touches upon the prerogatives of her majesty cannot be brought forward in parliament without the consent of her majesty. and her majesty, of course, would be advised as to whether to give consent by the prime minister. the authority for that is authorities bundle, miller, bundle number five, authorities bundle, miller, bundle numberfive, tab number authorities bundle, miller, bundle number five, tab number 73. authorities bundle, miller, bundle numberfive, tab number73. and it appears behind tab 73 in bundle five, this is from the latest edition of erskine may, and the releva nt
edition of erskine may, and the relevant paragraph is paragraph 30.79. and that says, bills affecting the royal prerogative require the queen's consent. and thatis require the queen's consent. and that is a well established principle. what happens in practice, ican hand principle. what happens in practice, i can hand this in if the court is interested, when the fixed—term parliaments act bill came before parliament, the second reading was preceded by the then deputy prime minister telling the house of commons, i quote, minister telling the house of commons, iquote, i minister telling the house of commons, i quote, i have it in command from her majesty the queen to equate the house that her majesty, having been informed of the purported bill, has consented to place her prerogative so far as it is affected by the bill at the disposable —— at the disposal of parliament. so in practice, no bill, as my lady points out, no bill
affecting the prerogative power could have been placed before parliament without the consent of her majesty and her majesty would have been advised by the prime minister. paragraph 54 of the divisional court judgment refers to examples of lengthy prorogation of parliament in the early part of the 20th century. i am with respect doubtful that this court is going to be assisted much, if at all, by detailed submissions on the very different circumstances in 1930, 1914 or 1901. if it matters, we respectfully submit that there is no evidence that we found that the length of the prorogation —— prorogation in those cases was dictated by a wish to avoid
parliamentary scrutiny, and those examples all occurred long before modern judicial examples all occurred long before modernjudicial review. in particular the gchq case, recognising the exercise of prerogative powers was open to legal challenge. the 1949 example that is given by my friends, where they were very short sessions of parliament, was to ensure that the provisions of the parliament act 1911 could be implemented. that was not designed to prevent parliament from acting, it was intended to allow parliament to act, to implement the parliament act 1949. .. intended to act, to implement the parliament act 1949... intended to to act, to implement the parliament act 1949. .. intended to allow the house of commons to act. indeed. not parliament. which was permitted under the 1911 act. the court
addressed that thorny constitutional issue. but that was 1949, again, long before gchq, and we respectfully doubt that the court is much assisted by analysis of what could have been possibly legal challenges in very different circumstances. may i then turned to our submissions, which is that this case raises a legal question for resolution by the court, and the legal question is whether it is an invalid use of the power for the prime minister to exercise it in order to avoid parliamentary scrutiny or with the inevitable effect of avoiding parliamentary scrutiny. again, i rely on the academic analysis, i rely on the
analysis by professor mark elliott, which is in supplemental authorities volume one at tab number 15. and cani and can i pick it up where i left off when i last took the court to tab 15. it is on the third page of professor mark elliott's analysis. professor mark elliott's analysis. professor elliott is a professor of public law, deputy chair of the faculty of law at the university of cambridge, fellow of saint catharines college. he also served as the legal adviser to the house of
lords select committee on the constitution. and on the third page, in the final paragraph, the court sees that leads on to the question whether notwithstanding all of the foregoing, the answer to that question, an answer that largely follows the foregoing analysis is surely no. this is so because of what once the issues are clearly understood, the court does not need to do in order to answer the releva nt to do in order to answer the relevant legal question. it is correctly pointed out that supplementary authorities tab 13 that it supplementary authorities tab 13 thatitis supplementary authorities tab 13 that it is misconceived to suppose that it is misconceived to suppose that the exercise of the prorogation of power necessarily involves matters of high policy. it's exercise is almost always mundane. and he says it is possible to go even further in the present context and argue the issue at stake is justiciable because it does it in the first place raise any questions forjudicial determination upon which an argument of
non—justiciability could bite. such questions could at least in theory arise if a court were asked to rule on whether three days or five days would be reasonable. that would raise the sort of problem referred to by the divisional court often insuperable difficulty where the court can't make a legal assessment of whether a duration is accessible by reference to any measure. crucially, no such issue arises in millerand crucially, no such issue arises in miller and cherry. there is no need for the court to determine whether the duration was excessive. this is not however to deny that inferences may properly be drawn from the duration of a period of prorogation when a court is determining what the true purpose or indeed effect was. and the government's position is the government wanted to open a new session of parliament, hold a queen's speech, fails to explain why such a nominally long period of
prorogation has been chosen and gives rise to an inference of improper at stake. gives rise to an inference of improperat stake. far gives rise to an inference of improper at stake. far from requiring the court to determine whether the duration is excessive, theissue whether the duration is excessive, the issue determines the court only to determine to decide whether prorogation was undertaken for reasons that were permissible because it lies outside the range at which power can lawfully be deployed. with the effect of frustrating the legal principle of parliamentary sovereignty. this is a crisp question of constitutional law, says professor elliott, concerning the scope of the discretionary power to prorogue, as distinct from a question as to whether a question has been lawfully exercised. such a question of law about the scope of the executive's legal powers is manifestly one that lies within the field of matters with which the courts can properly
deal. and then i draw the court's attention to the following paragraph, which adds some further supplementary reasoning, which i won't read out. slightly frustrating to hearan won't read out. slightly frustrating to hear an academic without any reference to the authorities on the limits of the review of the prerogative power. the authorities to which i am coming recognise in my submission that way one is dealing with a question of law, where one is dealing with the question of whether there has been a breach of their general principles of public law, the court does have jurisdiction. i will come briefly... this is, to my
mind, one of the really difficult issues we have to grapple with. what are the limited —— limits in relation to prerogative.|j are the limited —— limits in relation to prerogative. i want to show you within courts of law what approach is taken by leading academics in this area. can i also show your lordships what is said by lord manse on the question of review ability —— review ability in the context of prerogative powers in giving the lecture, that appears in the cherry authorities at volume three. it appears behind tab 67.
volume three of the cherry authorities, tab 67. i commend all of this to the attention of the thoughts. yes, page 3092. it begins at 3073. and the conclusion is at page 3092. and the conclusion is at page 3092. and at the top of 3092, lord manse giving the lecture onjusticiability says, drawing together the threads, my thesis is that for the most part, courts can and should adjudicate upon several claims without it being
necessary or appropriate to resort toa necessary or appropriate to resort to a doctrine of non—justiciability. there are a few ad hoc situations where an international law principle ora where an international law principle or a domestic law principle debarred the courts from fulfilling their ordinary function but the nature of ordinary function but the nature of ordinary civil claims makes non—justiciability a very rare phenomenon. judicial review can in contrast range widely but is subject to other control, standing, discretion, which commonly make it unnecessary to grasp at so bland a response. it continues to be the area of foreign relations for constitutional competence they most easily tip over into outright non—justiciability. they can be no single litmus test. the political
question doctrine has faded. very often it would be unnecessary and inappropriate to accept the blunt argument ofa inappropriate to accept the blunt argument of a no—go inappropriate to accept the blunt argument ofa no—go area. inappropriate to accept the blunt argument of a no—go area. there is a continuing shift to a more nuanced recognition that each case much the approach on its merits when all releva nt approach on its merits when all relevant factors decide whether the particular issue is really non—justiciability or whether a judicial review should as a matter of discretion be granted. this will be promoted by fuller recognition, the intensity ofjudicial review should reflect the respective institutional cons —— expertise of the original decision. he reaches that conclusion after assessing prerogative powers. that is part of the analysis that is adopted. i commend all of that to
the court. it is similar to the analysis by lord sales. speaking extra judicially, authorities bundle five, the miller authorities bundle five, the miller authorities bundle five at tab number 84, under the heading crown powers, the royal prerogative and fundamental rights, againi prerogative and fundamental rights, again i commend all of this to the court. which tab? sorry. volume five of the miller authorities, tab number84. of the miller authorities, tab number 84. thank you. and page 379 in the middle of the page, ijust wanted to draw attention to this
paragraph, although as i say all of the command consideration. the most basic level of control of the prerogative powers of the crown is the doctrine that the crown only has such powers as are recognised by the courts. the courts police the boundaries of prerogative power. the claims of constitutional authority are thus filtered through common law doctrine, much as their distinct claims of constitutional authority by another locus of constitutional power, namely parliamentary privilege, is scrutinised. while the common law is not the exact source of this power, it is only to the extent they are recognised by the common law and permitted to have an operation that the authority claims in which they embody are effected in law. that happens over time. there isa
law. that happens over time. there is a reference in the footnotes, 88, to the proclamations case. the king has no prerogative but that which the law of the land allows him. we say that is right. the scope and extent of prerogative power is a matter for the courts to determine. i know you have a shortage of time. on your present form of regulation, the power cannot be used in order to avoid parliamentary scrutiny or with the inevitable effect of avoiding it. does the second half require more sophisticated formulation? the fixed—term parliaments act effectively allows for prorogation and that will inevitably mean no parliamentary scrutiny.|j and that will inevitably mean no parliamentary scrutiny. i am not
challenging the existence of a power to prorogue. i recognise, as the leadership puts to me, any prorogation involves a removal for that length of time for the powers of parliament to scrutinise. given the junior role of the executive, our case is that it is implicit in the power to prorogue that it will not be used in such a way as to re move not be used in such a way as to remove parliamentary scrutiny, other than so faras remove parliamentary scrutiny, other than so far as is reasonably necessary to accomplish a legitimate objective. and here the objective thatis objective. and here the objective that is presented is to end one session and to start another, with the queen's speech. i entirely acce pt the queen's speech. i entirely accept that is a decision in which the prime minister is totally
entitled to take. what it is not permitted to do, without a good justification is to prorogue for a period so long that, in effect, or with a purpose, it is going to frustrate, remove the ability, of parliament to scrutinise the actions of the executive. we say, applying the padfield principle in the context of prerogative powers, this isa context of prerogative powers, this is a decision, prorogation for five weeks that which either has the intention or the self—evident effect of frustrating the constitutional principle of parliamentary sovereignty and depravity over the executive. i make it clear, of course the prime minister can prorogue. this, we say, is quite a
distinct case, given their circumstances and the length of prorogation. can the legitimate purposes, for which the executive prorogues parliament, include political advantage? well, not if that political advantage is to re move that political advantage is to remove the scrutiny of parliament. no. for the reasons i have sought to give me that, we say, is an impermissible purpose because it is implicit in your lordship's formulation that the executive is seeking to remove the scrutiny of parliament. if that is the purpose, or the effect it is not permissible.
no. obviously, cases are going to depend on facts in this context. one needs to look very carefully at the circumstances of any particular case. in the cherry case, it seemed to be accepted by both sides that obtaining a political advantage could come in certain circumstances, bea could come in certain circumstances, be a legitimate measure taken by the executive. if your lordship is putting to me, if the prime minister thinks, and he does, that there are political advantages in having a prorogation because he wishes to end one session of parliament and start another in order to have a queen's speech that will set out his programme, his government's programme, his government's programme, of course i had no quarrel with that. programme, of course i had no quarrelwith that. it programme, of course i had no quarrel with that. it depends on the species of political advantage. yes.
you'll essential submission is you cannot have political advantage in the form of shutting down parliament to avoid scrutiny. -- your essential submission. i had said it is perfectly acceptable for the prime minister to take the view that it is time to have a queen's speech. in order to do that you need to prorogue parliament. i have no quarrel with that. it is a different matter from saying, what i want to do is to have a prorogation of an exceptional length of time for the purpose and effect of closing down parliament so it cannot scrutinise the conduct of the executive. that isa very the conduct of the executive. that is a very different matter. it is a vital distinction. i am is a very different matter. it is a vital distinction. iam not is a very different matter. it is a vital distinction. i am not asking the court to go wider than the circumstances of this unique case. the authorities, they need to be
addressed. the leading authorities volume four, tab 47. volume four of the miller report, at tab 47. and the miller report, at tab 47. and the relevant passage, it is in the judgment of lord newburgh, speaking for the court. tab 47, paragraph 41, which is on page 377 of the report. gon which is on page 377 of the report. g on page 377. non—just disability refers to a case where an issue are said to be inherently unsuitable for judicial determination for reason
only of its subject matter. the court said such cases generally fall into one of two categories, the first comprises cases where the issue in question is beyond constitutional competence assigned to the courts under our separation of powers. this category is rare because it may result in a denial of justice. paradigms cases are non—justiciability of certain transactions of foreign states and other proceedings in parliament. the first is based in part on the constitutional limits of the competence of the court, as against that with regard to relations with foreign states. the second is based on the constitutional limits of the competence of the court as against that of parliament. the distinctive feature of all of these cases, the court may not adjudicate on the
matters within it even if it is necessary to do so in order to decide some other issue, which is itself unquestionably justiciable. no one suggests it is this case. the second category of non—justiciable cases is different. it is where cases is different. it is where cases are based neither on private legal rights or obligations all on reviewable matters of public law. examples given are domestic disputes, transaction is not intended to affect legal relations, issues of international law which engage no private right of the claimant or reviewable question of public law. some issues might be non—justiciable in this case if the court were asked to decide them in abstract. the best known examples are in the domain of public law and
the examples are given of some of the examples are given of some of the leading cases. we have no quarrel, of course, with any of that. our point is that the present case does involve a question of public law, which it is, with respect for the court to determine. is the exercise of this prerogative power, in the circumstances of this case, within or without the legitimate purposes, legitimate legal purposes, for which that power may be exercised ? legal purposes, for which that power may be exercised? the answer is either yes, or it is no. but it is an issue of law and the rule of law, in my respectful submission, demands that the court answered it and not say it is not for us, it is to be left. it is for the discretion of the minister. the minister cannot,
in my submission, have a discretion. the prime minister cannot have a discretion as to the breadth of the powers that he, the prime minister, enjoys. many cases have been cited by the divisional court and by my friends in their written case. and i say something about them briefly? the first is a against the secretary of state which is in authorities volume one, tab number five, of state which is in authorities volume one, tab numberfive, and of state which is in authorities volume one, tab number five, and the court will recall that this... i am sorry, tab number one, authorities volume one, tab number one, k and the secretary of state. this was the case about the detention of foreign
nationals without trial when they we re nationals without trial when they were suspected of having an involvement in terrorism after 9/11. allah submission being the political context in which an issue of law arises does not remove in itself the jurisdiction of the court. —— our submission. in the miller case, the court nevertheless accepted the issues were justiciable. there was no dispute about it. absolutely not. inka,i in k a, i referred to lord bingham.
paragraph 16 on page 96. the heading was public emergency. the claimants in that case were contending that detention without trial was unlawful because contrary to article 50 of the european convention, there was not a public emergency threatening the life of the nation. that is the context in which lord bingham made the observations of paragraph 29. in letter e, he said, the morley political in a broader sense, the more appropriate for political resolution and the less likely for a judicial decision. it is for political bodies to resolve political bodies to resolve political questions. under our
constitution, their subject, the sovereign power of parliament, it is the function of the courts to resolve legal questions. his lordship said the question seemed, to his lordship, to be very much at the political ends. nevertheless, his lordship did not rule that the issue was non—justiciable. his lordship resolve the issue in favour of the government. it is not a case about non—justiciability, it is a case about discretion and margin of discretion. to the contrary, the majority of their lordships house, including lord bingham, ruled that the impugned legislation was a breach of the human rights convention not merely was there justiciability, there was unlawful decision because the distinction was drawn between foreign nationals and
citizens of this country. at page 110, paragraph 42, letter f—g, lord bingham was very critical of submissions where suggested the issues were not forjudges to determine. i suppose it is also worth bearing in mind that lord hoffmann actually did decide. lord hoffmann actually did decide. lord hoffmann dissented. on the very point that there was an emergency threatening the life of the nation. he must have considered it to be a justiciable question. all of their lordships accepted there was justiciability. even on the highly political question of whether or not there was a threat to the life of
there was a threat to the life of the nation. eight of them held that there was no breach on the merits of there was no breach on the merits of the provision of the european convention article 50. lord hoffmann dissented. justiciability and a breach. as to whether the distinction between foreign nationals and domestic nationals could be challenged, all of their lordships accepted, and leadership is accepted, justiciability. lord walker dissented on the merits and eight members of the appellate committee upheld there was a breach of the european convention. the case does not assist my friends. gibson and lord advocate is the second case, volume one of the authorities. it isa case, volume one of the authorities. it is a decision of lord keith in
1975. the context appears, from page 139. this is volume one of the authorities tab 12. page 139. in the middle of the page. it is the first paragraph of lord keith's decision. the issue was whether the european communities act was contrary to article 18 of the act of union 1707 and was therefore now and of no effect. —— was therefore null. that is because it was pointed out that article 18 of the act of union talks about scott's private law and matters of evident utility. and the judgment of lord keith that is
relied upon is that 144, in the middle of the page, in the middle of the main paragraph on page 144, lord keith says, i am however of opinion that the question of an act altering pa rt that the question of an act altering part of scott's private law isn't for the evident utility and is not a justiciable issue. the making of decisions on what must essentially bea decisions on what must essentially be a political matter is now part of the function of the court. the function of the court is to adjudicate on particular rights and obligations of individual persons in relation to other persons or to the states, etc, etc. unsurprising as a conclusion. i would respectfully qualify lord keith's analysis, if it is suggested that the only function of the court is to adjudicate on the
particular rights and obligations of individual persons, becausejudicial review has long since proceeded further than that in relation to challenges, challenges as in miller, as in fire brigades union, are to the legality of policies, decisions, which have an effect on the community at large, including the individual applicant. then there is robinson, which is authorities, volume four, of the miller authorities, tab 46. this was the northern ireland case, involving the question of whether or not the first minister, said deputy first minister, said deputy first minister, could be appointed more than weeks after the relevant date,
and what is relied upon is paragraph 12 on page 398. my friends rely upon that malware lord bingham said, matters of this important is left to political leaders all of the crank at the constitutional arrangements maintain scope for political judgment and they permit a flexible response. we point out that was not afinding of response. we point out that was not a finding of non—justiciability, far from it. see paragraph 11, where his lordship referred to the 1998 act and then added, but the provision should consistently, with the language used, be interpreted generously and pa pa language used, be interpreted generously and papa tivoli, bearing in mind the values it is intended to
embody. the case of wheeler is at volume four, tab 48. lord sayles played a role here as one of the council for the defendants. the context, and i don't have time to go into this in detail. the context is that paragraph 25 and 26, mr wheeler was complaining there had been a promise to have a referendum in relation to constitutional treaties and he said that should apply to the lisbon treaty and, entirely understandably, the court was unimpressed with the suggestion that it could rule, that there had been a breach of a legitimate expectation in this... in that context. what was legitimate, in what circumstances could the prime minister part for
good reason from any expectation? standard questions in legitimate expectation laws could not be applied in that context. similarly, the case of maclean. authorities volume one tab 16. thejudgment the case of maclean. authorities volume one tab 16. the judgment of lord sayles. again can i summarise the claimant sought permission to bring a judicial review of the supply agreement between the conservative party in the democratic unionist party which the court will recall enabled the prime minister to form government after the 2017 general election? the court refused. my general election? the court refused. my lord refused leave for that claim to be brought. again, we have no difficulty in accepting that the
claim did not raise any tenable public law issue, on which the court could adjudicate in relation to the circumstances. we have no difficulty with any of those cases. the cases in this court include sandyford which is authorities, volume three, and to which my lord referred. volume three, tab 32. this is the case, the court will recall, involving the complaint that the secretary of state was refusing to fund legal expenses for a british national, who was facing the death penalty in indonesia. and lord khan
worth gave the judgment for the court. —— carnworth. it referred to the gchq case and picking it up at paragraph 52, it was said, the court's role is dependent on the nature and subject matter of the power or its exercise, particularly on whether the subject matter is edition —— justiciable. it referred to gchq and bentley, a case where there was a challenge in 1994, was it 1993, to the refusal of the home secretary to grant a retrospective pardon to derek bentley, and the
divisional court held that that decision was unlawful. your lordship said, in gchq, it was suggested prerogative powers would not be justiciable, those related to treaties, defence of the round, dissolution of parliament, appointment of ministers. even so it has been held the decision to refuse toissue has been held the decision to refuse to issue any pardon based on a to identify any possibility in law, it has been how the decision to refuse toissue has been how the decision to refuse to issue a passport is reviewable. in the present case there has been no review. the secretary of state has some responsibility for british citizens facing capital charges abroad, nor that it is exercised the responsibility is subject to review by the courts. common ground he has a wide discretion in the formulation and application of that policy. if you turn on restrictions in which he
is entitled to place on the policy and on its application to the appellants case. even in that foreign policy context, there is no dispute and the court was content to proceed on the basis that prerogative power was... could be reviewable. we are going to keep you right up to date with all the developments at the supreme court throughout the day. you can follow theirs and watch the hearing live online on the website. or via the bbc news app. the one o'clock news is coming up with simon mccoy. now for the weather forecast. perfect conditions for gathering in the ha rd est. conditions for gathering in the hardest. dry, settled on sonny pretty mastic crush —— and are pretty mastic crush —— and are pretty much across the country. it should stay largely dry three
daylight hours. a bit of a breeze on the east coast, pegging the temperatures back stop clear skies by day which would allow for clear skies and a chilly night stop single figures right across the country, low single figures basking in the morning and more sheltered rural parts. the weather front will continue to drift its way across the top of the high, bringing outbreaks of light, patchy rain into scotland. dry and settled elsewhere and temperatures are likely to peak at a height of ten to 20 degrees. —— highs.
high drama at the supreme court — as judges decide whether boris johnson acted unlawfully when he suspended parliament for five weeks. as protesters demonstrate outside the court — the prime minister says he has the greatest respect for the judiciary. wait and see what they say. but would you be ready to recall parliament if that is what the supreme court says you ought to do? i think the best thing to do is wait and see what the judges say. i'm here at the supreme court where 11 judges are hearing two appeals relating to the pm's decision to prorogue parliament to mid—october. their decision could have a huge impact on the future of brexit — and of the prime minister. identifying whether a power has been used for a valid purpose