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tv   BBC Newsroom Live  BBC News  September 18, 2019 11:00am-1:00pm BST

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and parratto magically within that political and within the key rationale or of non—disability. and i start with the four points, and then i am going to test it, if i may, against the present circumstances that we have here, and the first of those four general points is that as a species of decision, decisions are inherently and fundamentally political in nature. they will involve considerations about how most efficiently to manage the conduct of the government's business, including specifically its legislative agenda in parliament. and those sorts of considerations are shot through with assessments of a political kind
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including how most effectively to secure the government of the day's political and legislative objectives and agenda with all of the aspects that that brings including modern presentation. whether and when it might be appropriate to terminate or interrupt existing business, including the prevention of bills in the courts of passage, and the setting of a new legislative agenda at the queen speech. the interval between parliamentary sessions and whether that period should be extended, whether a new queen's speech with a new differently focused national and parliamentary end legislative agenda should be set. and how long would be needed and desirable. that is we submit both the government of the day and the opposition presuming its proper
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function in challenging government, and their own political agendas, their own perceptions of what will and will not operate. and the ultimate weaponry of course remains in the hands of parliament, motions of no confidence, two thirds voting foran of no confidence, two thirds voting for an election under the fixed—term parliaments act, all the decisions and all the debates of the parliamentary business we have seen in the newspapers in recent weeks. this is, we submit, therefore, the territory of politicaljudgment. in the heart of the reasoning as it therefore was in the maclean case. and there are no predetermined mechanistic rules, you will remember the quotations during that distinction on legislative control and political judgment. just at
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heart, politicaljudgments and political judgment. just at heart, political judgments of and political judgment. just at heart, politicaljudgments of the whole variety of matters, including perceived political advantage, as pa rt perceived political advantage, as part of that parliamentary and day—to—day government cut and thrust that feed into those decisions. and that feed into those decisions. and that we spit respectfully submit, that we spit respectfully submit, that basic and fundamental nature is illustrated by the history of prorogations and we will seek to ca ptu re prorogations and we will seek to capture that at paragraph 71. are we being asked to enquire into a political decision, or are we being asked to determine whether it collides with a precious legal principle? no one in answer to that would dispute the precious nature of the impropriety of purpose and
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principle. it is a well—established principle. it is a well—established principle from pat field onwards that has been prescribed in public law. no one is questioning how it can operate in the context of this particular decision making, this type of decision—making, and you have seen from the case law that some otherwise precious principles of public law have to give way. you can also see from the case law that non—justiciability operates just as much in public law as it does in other spheres of the law, so i think my answer will be to accept the precious nature of that principle, but nevertheless to say the question remains can it operate, can the other principles which are equally precious, rationality, relevance... you have referred to the principle that i was referring to with proper purpose, i was thinking of the bigger one. if there is anybody who is better placed to defend the
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parliamentary legal solvent free, it is us here. and it was that principle that i had in mind when i said, does this political decision collide with something which we are duty— bound to uphold ? collide with something which we are duty-bound to uphold? i'm sorry, i have misunderstood the question. my a nswer have misunderstood the question. my answer is going to be a different one, i have a submission about parliamentary sovereignty, but i will do that in detail in answer to this question when i get there. parliamentary sovereignty is a precious principle, but it all depends on what it means, what aspect of parliamentary sovereignty, what aspect of parliamentary business are we dealing with? it is no good simply turning up and shouting about parliamentary sovereignty, because parliamentary sovereignty, because parliamentary sovereignty means a number of different things. it means that parliament can make and unmake its own rules, and when it does pass
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primary legislation, the other pillars of the state, including the courts and the executive, bow to it. you think it is as limited as that? i'm going to say that those are the classic features of parliamentary sovereignty, and then i'm going to analyse whether or not it is truly analyse whether or not it is truly an aspect of parliamentary sovereignty for prorogation to be controlled in this way so as to engage the concerns of the court. so you need to be very careful before that phrase is too widely bandied about before thinking about what it means in the particular context we are dealing with here.
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let'sjust suppose let's just suppose that it was decided for political reasons by the prime minister that he did want to stifle debate and avoid scrutiny of his actions, particularly during the contemporary situation that we find ourselves in, and he decided to prorogue for one year. don't answer now, but that is exercising me at the moment. it is, and that was the glove thrown down by lord panic at the end of his submissions, how do you deal with that possibility? it is to some extent at the same box is the question that my lord put yesterday about bribery, and bribery and corruption, being the extreme example, prorogation for does that not indicate that there must be some form ofjudicial control. a part at least of the answer is to remind the court of i think it was the canadian
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supreme court who said be very careful about establishing principles by testing them against extreme circumstances. it is not exactly unconventional to do that. my exactly unconventional to do that. my lord, there is caution required. that is not our case, and there are controls that can be exercised. including the practical point that the armed forces need discipline and the armed forces need discipline and the government needs money to operate, but ultimately, the controls are political. i echo and do not retreat in any way from the a nswer do not retreat in any way from the answer given to you by lord keane yesterday, which is that they are political controls and ultimately it is open to parliament to exercise control in all of those extreme situations over the government.
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in that context, the courts could intervene. it is primary legislation, and they will be filling their responsibility, and it comes back in a way to the example of the human rights act. it doesn't follow from that that you get the example. all that that illustrates is the prime and first principle of parliamentary sovereignty. namely that all other organs of the state
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bow to the express will of parliament. but prorogation is allowa ble parliament. but prorogation is allowable in that context. the court will be enforcing primary legislation, which is its function. my legislation, which is its function. my lord has the submission right. so the first of the four general points were politically. secondly they concern the settings in the sessions of parliament. closely connected to the business of parliament which we respectfully submit the province of parliament. we are dealing here with the prime minister is power to regulate a parliament that is responsible for his tenure and to which he is accountable, for example through a no—confidence motion. and through the other mechanisms that now exist
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such as the fixed—term parliaments act. whether or not the opposition and in that territory is a matter for parliament. there is at most a flexible convention that there is a parliamentary session each year but as you know from recent times that is truly flexible. the current session ended by this prorogation was the longest for many years and extended over two and half years. my submission is that the common rule does not regulate and could not relegate the scheduling of parliamentary proceedings. parliament has decided in some
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specific contexts to regulate this by legislative provision. the judgments involved in doing so i emphasise and this goes to the constitutional proprietary issues are para dramatically legislative. when should that control be exercised and in what circumstances. those are legislative judgments ultimately and we have given you in the case in paragraph 28 examples other than legislative —— legislation. this pretty much always in standard
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forms as you see. requiring parliament in effect to be recalled if it stands adjourned or prorogued ata if it stands adjourned or prorogued at a particular point in time. in section three of the northern ireland legislation you will see that that is but a recent example of parliament doing precisely that thing. you will be coming on to explain how the progression does not cut across section three 28. iam very i am very happy to do that now if that would help. i know that lady
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black was interested in that yesterday as well. if i can pick it up yesterday as well. if i can pick it up then so i don't use the flow. the very recent example is in section three. it is an example of parliament deciding in certain circumstances it is going to require parliament to be recalled. the provision are set out in paragraph 29 of the case and the effect of it are summarised in paragraph 30 of the case. but it applies to control the case. but it applies to control the sittings of parliament if parliament stands prorogued. the third general point is to parallel with the solution. we have dealt
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with the solution. we have dealt with that in our case between paragraphs 82 and 85. the position we submit is this, in the days when dissolution was subject to the prerogative, in other words pre—fixed term parliament act, it was regularly singled out as a core example of a prerogative power whose subject matter rendered its political and thus... if you still have the case of a there are three quotations on that citing it as an example of that. lord bingham in our case in paragraph 66. five lines up
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from the bottom of the quotation in brackets. lord ross gill in our case in paragraph 49 in the gchq case. and you see the dissolution towards the end of the line about halfway through that code. and lord justice taylor if you cast your eye down the case to paragraph 52. he mentions making treaties and making war. 0ur submission is that there is for present purposes no distinction between dissolution and prorogation.
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there is no distinction because of the underlying basis for the dissolution example as explained in that case of a subject matter area that case of a subject matter area that wasn't for lack of political standards and the constitutional propriety of politicians deciding political issues. it's impossible to see why they should not apply equally to prorogation. it is not distinguished by contending that the dissolution would be a personal prerogative unlike prorogation. in both contexts her majesty the queen will act on advice from ministers. whether prorogation or dissolution is in fact personable and when is governed in any event by convention not by law. and it may be said now is the subject of some considerable
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academic debate. i'm not going to go to it now but you have in the supplementary authorities bundle behind tab 28 professor tony's analysis of all the various examples, he has a whole chapter on prorogation and a series of examples across commonwealth countries in which it has been done which makes for jolly interesting which it has been done which makes forjolly interesting reading, not least because you can see from that the sort of circumstances in which prorogation was ordered. you can see governors and governor generals getting involved in deciding they're going to delay for two hours before announcing whether they are going to accept it. could youjust announcing whether they are going to accept it. could you just give the
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reference. it's in supplementary authorities bundle. it's the first one. it's in the first one, tab 28. i will give it a go. it is headed eight prorogation. that's it. i'm not going to go through it because it's a series of examples of prorogation being used in many cases the obviously political purposes. and for present purposes indicating that in certain circumstances they we re that in certain circumstances they were thinking about whether they had discretion or not. this is why the briefing paper draws on the analysis
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and gives us the example in canada where the queens representative took an active role. it raised the question which is whether if a prime minister who didn't dot to seek prorogation, whether the queen would be bound to accept it. in some ways that the very question we don't have now.
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that deal, paragraph 2.2 deals with the question of the authority for prorogation. i don't have the reference. it's in the millet trial bundle. it's page 175 hard copy. 237 electronic. tab 27. it says in paragraph 2.2 whether the
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crown must always follow this advice is contested but has not in modern times been tested in the united kingdom. then it goes on to give us the example on page 182 of the no—confidence motion in canada in 2008. the governor general plays an active role in dealing with the questions. then at the end on page 194 in the absence of clear confidence in the government you can say for certainty whether the crown would follow the advice of the prime minister on prorogation. we have it
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on the authority of the leader of the is in this particular case that she didn't have any role in the matter. do we know whether her advisers have seen this paper? we don't and even if she had the exa m ples don't and even if she had the examples from the commonwealth, this is the stuff of the article and consider in those contexts that the reserved power operates only in limited circumstances, including in particular when and if there is a problem reflected in a no—confidence motion of the government clinging to power. so there are all sorts of questions about that. the point i'm concerned about is this. it can work both ways. one of the points is that
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there are no checks and balances, there are no checks and balances, there is nothing to stop the prime minister dispensing with parliamentary control. if the case in fact is there are controls then it seems that may raise a different situation. i am very concerned that we don't get into a position where we don't get into a position where we are deciding we've made constitutional issues on the basis of what not represents the true position of the queen's role. there is some sensitivity at around this issue because there are different interests which are not governmental. the furthest i can go in relation to that is that the
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position in relation to the involvement of any sort of personal prerogative both weather and if so when of the sovereign is a matter of some considerable uncertainty. the reason i go there for this purpose at this point is because the court can't proceed on the assumption that the way you distinguish dissolution is because that does involve some personal prerogative by her majesty. in this case is that the governments position that her majesty had any prerogative power?|j position that her majesty had any prerogative power? i don't seek to depart from the advice from the leader of the house. he is making a statement from a political standpoint. i have no instructions in the position on that general constitutional question. from a legal perspective is any prerogative
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power... i am making no submissions either way on that. for reasons i hope you will understand. the position is as reflected in the briefing paper that it's a matter of some uncertainty. different questions around whether or not if there is a personal prerogative decision to be made by the representative of the queen in those contexts are different questions to be asked. there is some suggestion that it's a much narrower group of things where the government has lost the confidence of the releva nt has lost the confidence of the relevant legislature. we are not in
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that territory here. no one has introduced a motion of no confidence in the government. underpinning the question was in reaction to the submission that if the courts and... then there is none. is that constitutionally correct because on the view of some commentators the queen might have... i make no positive submission to that effect. in none of them does it seem to have been seen as enrolled for traditional review. i don't think there's any example of a judicial review being used as a substitute
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for control... there is an down the a nswer for control... there is an down the answer in fairness to the case against as is that it's because no one happened to go to court. but we submitan one happened to go to court. but we submit an agreement that it is of some interest particularly given the politically controversial nature of some of those prorogation is. this isa some of those prorogation is. this is a matter that could be controlled by the courts. in chapter ten there is some discussion of the involvement of the courts. if there are constitutional principles that require to be policed isn't it more appropriate for the court to do it than for the queen to be sucked into what may be decisions with political
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ramifications? i think you may well be right. i make no positive case that as part of the work it would be the queens personal decision which would provide the constitutional protection. my case is that the constitutional protections are provided in the political arena by parliament, by no—confidence motions, by all of the matters that govern the tenure of the prime minister in our democratic legislature. that is where you find the appropriate form of control not in the courts. i submit that there are the requisite control is provided in that way. just to remind
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viewers that you are watching proceedings here on day two of this supreme court hearing about whether or not prime minister borisjohnson acted unlawfully when he advised the queen to suspend or pirogue parliament for five weeks. sirjames eadie saying this is not a matter for the courts. the courts really had nothing to say on this, this is a matter of politics, not law. with me watching and listening to this, professor alison young, professor of public law at cambridge university. what do you make of what sirjames eadie has been saying? he is trying to draw out the unconstitutional role of the courts. and do they have —— to be able to go off and control it? he says they are political controls and there are no legal limits but some of the
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questions he has had from the justices of the supreme court had been saying, what if this was for too long? what if you did breach a constitutional principle, it is our job to defend that and surely we can intervene there. thank you very much indeed. that is being heard right now. let's go back now to sirjames eadie, qc, representing the government on day two of the supreme court hearing. that provides no answer and no distinction between dissolution as the paradigms examples, the fourth point i can make very shortly in terms of the generality and that is that this is not a context which is about rights. this is not miller, this is not any of those cases in which the traditionally identified
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areas have been eaten into. it is not about rights. those are the four points i wanted to make on the general nature of the power. and i wa nted general nature of the power. and i wanted them to test them against the present context and that present circumstances, i wanted to do that because doing that, we respectfully submit, illustrates the fundamental problems with both judicial standards and propriety in both the design and the application of legal principles and legal controls in this context. the contention by the claimant is that the courts, as put by lord pannick in his written argument, the courts must ensure that parliament has not prevented from sitting and that the effect as he puts it probably is seriously to impede pa rliament‘s he puts it probably is seriously to impede parliament's ability to perform its function because it will
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be unable to legislate. and the will of parliament is engaged, it said, because it is said that parliament is being prevented from doing that which it would otherwise wish to do. the case in this court is now put on a narrower basis, orfocused on a more narrow basis, which is the impropriety or alleged impropriety or illegitimacy of purpose, that purpose being identified as quote avoiding the risk of parliament undermining the policies of the government. and i will come back to the detail of the way in which it is put but some initial points if i may, but first it is self—evident that prorogation means that parliament will not set. no parliamentary questions, no committees, no legislation for as long as it lasts. whatever the
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ultimate ends sought by any prorogation, whether it simply be a new queen of speech in as short as time as possible, accelerating the act in 1948, wrong footing the opposition, a desire to focus on the prosecution of war in 1914, the means by which the intended end is to be achieved is the inevitable preventing of debate and those other functions for some period in parliament. and it is difficult therefore we submit to separate the object and effect of prorogation. asian always necessarily limits the debate that could otherwise occur —— prorogation always. it is intended to reduce at a time for debate in parliament. that raises questions of utility of it sitting for particular periods of time. secondly, some effects flow from the fact of
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prorogation. in other words, the falling of bills as an example. and some effects last parliamentary questions, the setting up committees and so on, for as long as parliament is prorogued. flowing from that, my learning friend lord pannick does not attack prorogation per se, he simply attacks prorogation of this length at this politicaljuncture. and there are consequences of that narrowed form of attack. the first is that it is those features of this length at this politicaljuncture which are the focus of the arguments aboutjudicial intervention. which are the focus of the arguments about judicial intervention. and which are the focus of the arguments aboutjudicial intervention. and i emphasise that because the constitutional principle that he advocated appeared to be that parliament must always sit and have
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opportunities and have the same opportunities and have the same opportunities as when it is in session. that was at least the position until pulled back a bit by a question asked by lady black and then he reverted to the case from then he reverted to the case from the divisional court which was that the divisional court which was that the period was what was being attacked and it should not exceed what he then described as a period that was reasonably necessary for the purpose of the prorogation. so it is important to bear those features of the argument in mind because the condition the questions that the court will have to ask, not least in relation to some of those adverts in which i will come back to. the second consequence of him not attacking provocation just this length at this politicaljuncture as he... improper purpose argument, consequences flowing from the very fa ct of consequences flowing from the very fact of prorogation. bills falling is one of those things. they fall
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because of the fact of prorogation, he is not attacking that. it has nothing to do with the period for which parliament is paroled, so the falling of bills is irrelevant —— parliament is prorogued. we would add at least a political point that in any event that falling is temporary. if the new session chooses to pick them, it can do so, if they form part of the legislative agenda set out in the new queen speech, which is an integral part of the way in which democratic government operates in parliament, they will be picked up. and if they fall and stay fallen, that is simply a function of the operation of those democratic principles in parliament. i know you say to zeroual —— irrelevant, nevertheless i don't wa nt irrelevant, nevertheless i don't want to be ignorant. the automatic effect of prorogation is that bills
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that have not yet passed all stages in parliament fall. there is a method of preserving, carrying over, now as i don't know the precise limits of that, no doubt somewhere in the documentation it will be explained, but my understanding is that if they are carried over, they go over into the new session of the same stage that they were in the previous one. whereas of course if they fall without being carried over, they have to start all over again. my lady, you are right. good. and you have seen some reference to the bills that might be carried over. in fact only one bill has been carried over. i am sure we can check the precise number. i am having it whispered in my year that they are wrong about that but we can check.
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thank you. but they do go back to the beginning, as it were. the option as i say remains for the government to make time for parliament to make time, for those a cts parliament to make time, for those acts that otherwise fell and were not carried over. it does postpone the debate and some may be time critical. that is possible. all of thatis critical. that is possible. all of that is possible. but all of those are simple functions of parliament operating and parliament can legislate as we know from recent events very quickly if it considers thatis events very quickly if it considers that is the appropriate thing to do. if there is time critical legislation that parliamentjudges needs to be passed time critically then that is what it will do.|j needs to be passed time critically then that is what it will do. i was a bit concerned to hear you say that some of the evidence given in the public law project, presentation is wrong, you have actually reply to that in your skeleton, in reply, and
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we have obviously been reading that... we have obviously been reading that. . . that we have obviously been reading that... that is the latest one. that is the one we got this morning. i am so sorry, we have replied to their previous admissions was and then they replied to your reply. but do you challenge that five brexit bills have fallen completely? and do you challenge that a mass of delegated legislation has got to be enforced by—— legislation has got to be enforced by —— in force by the 31st of october and can now only be enforced if the may affirmative procedure is invoked and the widget is made before it is scrutinised. those time critical things can be dealt with, it is not the subject of challenge,
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i got the note this morning, i had my mind slightly on other things this morning. i apologise for not having a complete answer to that yet. it may be appropriate for us to check the new note to see how that operates. my principal dancer is going to be the same one that i gave to my lady, which is if parliament considers that those time critical pieces need to be passed critically, they will act accordingly —— principal answer. we all know that parliamentary time is in itself a scarce resource. it is not as if it is infinitely expandable. it is not but no one is making a case that it is. i think what my lord, lord wilson, one of the things he was asking you about was the passage of delegated legislation which will be very important to have in place by the 31st of october if brexit happens on that date. on my
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understanding, that is going to go through without scrutiny in parliament before it is made. but it has to be made in the period of the prorogation. i don't know, i'm afraid, having not seen this morning's effort... that is in the original. that is in the original public law project presentation, to which you have replied. if that is said to be wrong, we should be told. i would double—check that. but my a nswer of i would double—check that. but my answer of principle is the one i have given, of course parliament a positive yes time is not infinitely expandable. —— pa rliament‘s positive yes time is not infinitely expandable. —— parliament's time. this is a matterfor them. expandable. —— parliament's time. this is a matter for them. thank you. i have been handed a note that three bills were carried on. the birmingham commonwealth games bill.
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sentencing pre—consolidation amendments bill. and the high—speed rail west made spill. the low commission will be extremely pleased to hear that. —— commission will be extremely pleased to hearthat. —— high—speed railways bill. those are the points i wanted to make, the initial points i wanted to make, the initial points i wanted to make, non—justice ability as we have seen as a principle underpinned by the two rationales, the manageable standards and addressing and answering the questions necessary for constitutional proprietary and that does involve therefore considering with some specificity what questions the court is actually being invited to and would have to considerfor the purpose being invited to and would have to consider for the purpose of all of thejr consider for the purpose of all of the jr principles consider for the purpose of all of thejr principles that consider for the purpose of all of the jr principles that are consider for the purpose of all of thejr principles that are said to be in play, including in proprietary
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of purpose reasonably necessary for the purpose and so on. and we submit that once those general assertions are actually analysed so that you see the specific areas into which the court is being invited, the features in support of the principal contended for and the nature of the control contended for require decision—making and the formulation of legal control in relation at least to the following, the length of prorogation, whether this political juncture warrants a of prorogation, whether this politicaljuncture warrants a longer ora politicaljuncture warrants a longer or a shorter prorogation, whether parliament would wish to legislate, what range of legitimate purposes for a longer or shorter prorogation there might be. what types or
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species of political consideration or advantage might operate as legal controls. and just to take those a little bit more fully, there is an immediate problem and it is that the court tends in the past has tended to identify the will of parliament from enacted legislation. its meaning, and whether it is undermined, arejudged meaning, and whether it is undermined, are judged against that clear and constitutional appropriate large stick that was what the court was doing in miller one. unless and until legislation is in fact enacted, how the core judges whether parliament would wish to legislate is an entirely uncertain question because some mps say so on a headcount or how. how is that question to be determined and answered?
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question to be determined and answered ? it moves question to be determined and answered? it moves away from the shore and only proper guide to parliamentary intention, which is an enacted legislation we submit and moves the court moreover straight into the territory of political and parliamentary controversy. it is also entirely unclear what scale or nature of controversy would engage the intervention of the court or trigger it to invent controlling mechanisms of that kind over prorogation. the next set of questions around the length of the prorogation and the sufficiency to put the same point in a slightly different way, the sufficiency of the opportunity for parliament legislate or oversee. as we know, the challenge does not involve the challenge that requires permanent setting for obvious reasons, no
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credit, the case is that there has been insufficient opportunity afforded to parliament to oversee in the context specifically brexit and most specifically in the claim advanced by this claimant for the possibility of a withdrawal without a deal on the 31st of october. but again, thatjust simply prompt a whole series of unanswerable questions. how is sufficiency of time to facilitate legislation to be judged? how long is needed to hold the government to account over brexit? and we submit that the points made in paragraph 57 in the divisional courtjudgment are points made in paragraph 57 in the divisional court judgment are well made. it is impossible said the court for the court process by any measurable standard how much time is required to hold the government to
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account, including passing legislation that would require the prime minister to take steps to avoid united kingdom leaving the european union without an agreement. is it particular legislation or raise it or legislation? what factors justify a longer or shorter propagation? and how could the court assess politicaljudgments propagation? and how could the court assess political judgments of propagation? and how could the court assess politicaljudgments of that kind against the legal standard? and again we respectfully submit if you still have the judgment to hand that the analysis of the divisional court at paragraphs 54 and 56, which i am sure you have read, so i will not repeat them, is correct. so those are the sort of questions that surround sufficiency or length, sufficiency of opportunity or length. what about the controlling reasons for the advice? again, they are going to be shot through with
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political considerations, as history demonstrates and indeed it may be entirely or purely for a perceived political advantage, whatever controlling principles there? how is the court tojudge controlling principles there? how is the court to judge what is relevant and irrelevant, what is rational ultimately in terms of the decision and what is not? when it cannot weigh those political judgments and what is not? when it cannot weigh those politicaljudgments in the balance in any sense of sensible way. my learning friends have sought to focus on motivation or effect. as an abuse of power, as he has put it, the controlling principle. just in relation to abuse of power, we do recommend the court the quotation from lord justice laws in the case in paragraph 90. effectively saying
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be careful of abuse of power because thatis be careful of abuse of power because that is simply an overarching way of describing public law unlawfulness. it does not actually advance the analysis. but however it is precisely put, the essential problem of trying to introduce proper or improper purpose into this prerogative and prorogation territory remains that that has been identified already by the courts. that is the significance of the sandyford decision. which is in the authority's bundle at tab 32 in bundle three. again, i can probably ta ke bundle three. again, i can probably take the quotations from our case, the quotations of relevance from our case at paragraph 88 and 89 from the judgments of the judgment on the one
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hand... and the key thought if i may so characterise is in the passage, paragraph 88, they don't stem from any legislative source prerogative powers, and there is no external originator that could have imposed an obligation to exercise and in one sense rather than another. effectively pointing out the distinction between a padfield improper purpose where you have the statute which you can interpret and use as a guide to parliamentary intention applying standard principles of courts interpreting legislation to identify purpose and a power such as the one that was being considered there, where there
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is no external originator, there is no yardstick against which to judge what is a purpose that promotes the legislation or does not promote the legislation. these cases are fundamentally different from the padfield line of authority on which this line of argument was founded. for the very reason given in sandford. sandford was... those remarks were addressed to a rather different challenge. i am not saying it necessarily makes a difference, i am saying that is the situation. you are entirely right. my submission should have been by way of analogy into this, those comments on the judgment are equally applicable here. we have put up this morning on your desk it has properly been lost againa your desk it has properly been lost again a case called the air centre, which my lady... lady arden may
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recall. i do so again, emphasise, not because it is directly on point but because it is an illustration of the same sandyford type principle in operation, does the court have that, it was probably loose on your desk this morning? if not, i am sure we have more copies. it does not matter, we have got more. it has come through electronically. you can have my copy. thank you very much. i don't want to spend long on it but you will see if you discussed and i down the head node, the context of the case on the facts for relevant purposes the issue for present purposes the issue for present purposes was whether the police am i speak as you read, as it were, whether the police had the power and common law to ask questions of persons arrested to establish their immigration status on behalf of the home office. there being no statutory power for the police to do
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so. and you see that cast as the issue in paragraph 33 of the judgment. this was a judgment of lady arden. it is a recentjudgment, soi lady arden. it is a recentjudgment, so i think it is still sitting in the court of appeal but recently promoted. paragraph 33. and the argument, as you see, reflected in paragraph 34, was that the police could only exercise their common law powers for purpose and not to assist in immigration enforcement, so it was effectively using their powers foran was effectively using their powers for an improper purpose by another means. i it was quite presented in that way but that looks like the essence of it. and the court of appeal agreed with the high court that the police had a common law
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power to do anything an ordinary citizen could do, that is paragraph 38. they then concluded in 39 the additional statutory powers of a police officer over and above those held by the ordinary citizen did not constrain or restrict those common law powers, 39. and they then concluded that the common law powers we re concluded that the common law powers were subject ordinary principles of public law but could not in effect be assessed by reference to purpose, so the key bit is really between g and h on page 3012. what they did not have to—do however was fine specific police power to enable them to do something ordinary citizens can do, nor do we accept the principle that public bodies must exercise their powers for purposes for which they are engaged on the
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fa cts . for which they are engaged on the facts. and we agree that this case does not concern any specific statutory power conferred upon the police, the issue is a different and anterior one, whether the police can exercise the same non—coercive rights and powers as any other natural person, in other words whether a common law power was being exercise, where a common law power was being exercise, the court of appeal agreed entirely in accordance with that sandyford principle that the purpose principle had no purchase, it could not be asked the purpose for which the power had been conferred because it was not a statutory power conferred for any tickler purpose will stop that is another illustration of sandyford in operation —— any particular purpose. i respectfully emphasise that this is not just about the court i respectfully emphasise that this is notjust about the court making an order or adjudicated to require a
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particular length of prorogation, and ultimately you just pretty close to that in terms of irrationality challenges that were to be made, but the court of course could not do that but the fact that it could not illustrate we submit a deeper problem and the deeper problem is the lack of standards against which to test the standard jr controls, what is relevant and irrelevant, what is relevant and irrelevant, what a proper and improper purposes, what a proper and improper purposes, what is rational, they will have to be tested against some standard and back to the rights point, normally what happens when you are dealing with rights or an impingement on fundamental rights, such as when the hra is engaged, is to examine the impactand hra is engaged, is to examine the impact and what is relevant and irreleva nt impact and what is relevant and irrelevant by reference to their impact on individual rights, so when you are assessing proportionality for example, is the thing that the government wants to do, the policy
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thatis government wants to do, the policy that is being pursued, proportionate to the nature of impact on individual rights that it creates, thatis individual rights that it creates, that is the fundamental question, but you have legal standards at all parts of that analysis and the same is true back to the centre and sandyford, where you have a statute stating the relevant purposes and objectives and legislation that you can interpret. so not merely here are there none, but we submit that the tools for their invention are lacking. what about political advantage or political issues and how all of that phase? again, in common with lord hodge, we understand it was common ground that at least some types of political advantage were common ground accepted, as permissible. and even lord pannick seemed in the course of
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his submissions to accept that some might be, but how is this court to determine whether and if so what political advantage points are and are not legitimate? how is it to determine whether this is a relevant or proper consideration? without a statutory yardstick of the kind that you had in sandyford. and indeed in this particular context of parliamentary timetabling and the business of parliament. and if the assertion is that some are ok and some are not, to go back to the thought that lord kerr my lord, lord pannick, an argument, it depends on the species, how does the court term in which species is good and which species is bad for present purposes of political advantage being pursued? and we respectfully submit in this context also that the judgment of the divisional court was correct and principled, including in
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particular the passage in paragraph 55 of their judgment. this is sirjames eadie qc who is arguing the government's case at the supreme court. what the 11 supreme courtjudges are going to have to decide is whether or not boris johnson the prime minister acted unlawfully or illegally when he advised the queen to pro logo suspend parliament and sirjames eadie's argument here has been this isn't a matter for the courts, this isn't a matter for the courts, this isn't just a symbol, isn't a matter for the courts, this isn'tjust a symbol, it's a political matter when you suspend parliament. it's not something the courts can adjudicate on. let's get some analysis now on what is being said in today's hearings. i'm joined
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bya said in today's hearings. i'm joined by a legal expert from surrey university. we also have a senior lecturer from the six university. do you buy this line that sirjames eadie is pushing that this is not a matter for the courts to decide so in effect we shouldn't really be here. i think he is 10096 in effect we shouldn't really be here. i think he is 100% right. in effect we shouldn't really be here. i think he is 10096 right. the lawyers on his site. you can see that he is doing very well this morning. his major point is that it would bring political controversy into the courtroom if the court decided they have the power to say how long prorogation should be. these are not things for the court and james eadie is right. the cracks of the argument, what do you think?
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this is the strongest argument of government. it's reaching back to two important ideas. first that this is so political the supreme court should not be involved. it also this goes to the separation of powers. but what we are seeing in the questions to government from one of the 11 judges, the push he is giving, isn't it for the court to decide what that separation of powers is? so interesting arguments. 0ne powers is? so interesting arguments. one of the 11 judges did say to sir james watt hypothetically if there was a decision to pro row parliament
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for a year was a decision to pro row parliament fora yearand sirjames was a decision to pro row parliament for a year and sirjames said that would be an extreme example. there are two safety valves here. one is the queen could refuse to suspend parliament in such a situation. but what's more important is it is such an unlikely scenario given the government depends on the leadership of their party and the house of commons. if they tried to do something like that the government would fall. it's not a scenario we should be worrying about. if that really happens it would mean a constitutional crisis of such a magnitude that the courts would not save us. but is this something for the supreme court to decide? 0nejudge said 0ne judge said yesterday this was a serious and difficult legal issue and this was the sort of issue of
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the supreme court is here to decide upon. the supreme court are looking into this case up but also deciding the future. they might wonder if it's a dangerous precedent to say some powers have no limits on some powers can be applied at any time for any reason and the supreme court has said that's ok. this is because we have this unwritten constitution and it's partly about the separation of powers. exactly. this is why we saw one of the judges saying it isn't fit for the court to decide, isn't fit for the court to decide, isn't that one of the driving principles and that our whole legal system. fascinating to watch. thank you both very much. this is day two and there is another day of hearings
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tomorrow and then we should get judgment from the 11 judges by —— it's only the second time 11 judges have sat together underlining the importance of this case. we should getjudgment either towards the end of this week. let's go back inside the supreme court and continue to listen to sirjames eadie qc for the government. iam being i am being told we have a note from our instructors on that issue. we can address that.
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could i ask a different question. suppose that the government does give reasons for prorogation and suppose it is said that because of some incident that needs to be oppose but then seeks and obtains a prorogation is much longer than that so it could be said there is no rational connection between the end that was status —— stated to be the purpose. are you saying the courts would have no role in that situation? i am because it is testing the sufficiency of the period. 0ur
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testing the sufficiency of the period. our case is that this is political territory. this is not aboutjudging the sufficiency and how you judge the sufficiency of opportunity or the length. this is not territory in which there are appropriate and proper legal standards. even though the government has specified... yes because they will specify reasons for political reasons. it comes in essence to the case my learned friend eventually ran an answer to lady black plasma question. it's gotta the shortest possible time. the problem with that is the one
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that was mentioned yesterday based on the 1867 act which is that you can pro row parliament when it summoned to meet... meet. . . that meet... that would take an extra order of counsel. yes, you could have a double prorogation. you could do it twice. my only point is that it's not just restricted do it twice. my only point is that it's notjust restricted to how long you need to do a clean speech because prorogation can exist in a variety of different contexts.
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we submit it is for the government to regulate the sessions of parliament while it's an existence subject to the specific constraints that exist and even if the purpose we re that exist and even if the purpose were to prepare for a queen's speech pure and simple as you could restricted to that, the divisional court again dealt with the difficulties of a court trying to assess whether the period for preparation of a queen's speech should properly be five weeks, four weeks or three weeks. they concluded it was simply impossible. so a basic submission is both a formulation and
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design of the principal control over parliamentary sittings simply raises questions to courts cannot answer. by questions to courts cannot answer. by reference to what standards does it do it when you actually properly analyse what my learned friend is contending it is all about sufficiency of length or sufficiency of opportunity. and it also raises the of the basis, is it appropriate for the court to be designing a set of rules and resubmit not. they are and should be for parliament and it can and has in fact answered the when and for how long questions in legislation when they've chosen to do so. and all of that, all of those submissions we submit are thrown into stark relief by the very recent events that have occurred. i make
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only two points in relation to those recent events. first, there was a lwa ys recent events. first, there was always going to be and they will be sittings affording opportunities for parliament to express its will and to legislate as it chooses. section three was enacted and the significance of it being enacted is that it and the other pieces of legislation that i took you to in our case indicate that when parliament wishes to control sittings it's made specific provision for doing so and it has in fa ct provision for doing so and it has in fact made specific and detailed provision for precisely that with brexit and it states very well in mind through the end button
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amendment. —— anderson amendment. it illustrates also section three that there are legislative judgments that are involved in making that sort of legislation. about which parliament is the onlyjudge. when, for how long, how would you come back, what are the principles and procedural controls? at the heart of these claims is an invitation to the court to enter territory through the principles ofjudicial review with a view to the legal imposition of additional controls to those specifically enacted in section three. with brexit clearly in mind. additional controls.
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secondly, the centrepiece of the claim was and remains despite the attempt to broaden it out the contention that prorogation wasn't intended to have the effect of depriving parliament of a sufficient ability to legislate specifically in relation to what are perceived to be the consequences of a no—deal brexit on the 31st. and the events during the course of the hearing before the divisional court demonstrate precisely why and how that is untenable in fact. parliament has had and has taken the opportunity to legislate. just to remind you,
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you're watching proceedings from the supreme court. you can continue watching this on the bbc news channel but for the moment we are going to say goodbye to viewers on bbc two. more time is going to be needed before —— beyond the period of 9th of september and before the 14th of 0ctober two questions arise and they are the same basic two questions. how is the court to determine that question? how much more time should parliament be afford —— be afforded. they could of course have been through the legislative provision in
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the 2019 act. before you got there they could have been a motion of no confidence. but if parliament had wished and enacted the new act to produce a provision requiring the parliament should sit during the period of prorogation they could have said so. no such provision was in the bill. and it's no answer to that as a queens consent. whether queens is needed for a bill is a matter parliament and the speaker and the courts cannot make any assumption that it would be needed. we note it was not a provision, it was not needed and was not sought for the enactment of section three. and nor can the code assume if this was the suggestion that even if it had been needed it would not have
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been sought or obtained. you can make no assumptions about that at all. the fact of the matter is that parliament had the opportunity if it had wished to do so to legislate is not merely to control the undesirable pudsey —— perceived undesirable pudsey —— perceived undesirable consequences of a no—deal brexit, it could have said and by the way if parliament is going to be prorogued next week we think we need more time. but it didn't do that. can i turn briefly to section three and how it works. but there isn't a direct issue before you about that. you find the provision itself behind tab
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59 in bundle three of the authorities. if it helps to give the number, 2951. sorry, it's bundle four. you see the basic structure of the section. it is to produce reports,
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to publish reports. you've got to produce a report on the first one has got to be produced on the 4th of september and the second on or before the 9th of october. the one thatis before the 9th of october. the one that is produced on the 9th of 0ctober will be a report under subsection one. so go back to the rules that would apply to the first report produced on the 4th of september and then to kitson. the secretary of state must make arrangements for a copy to be laid on the same day as published and then motions moved in the commons and the lords. and those have to be
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moved in the relevant house within a period of five calendar days beginning with the end of the day on which the report is laid before parliament. that's what happens with the ordinary scenario. it specifically contemplates as you see the possibility that when such a report is published, parliament will stand prorogued or adjourned. so it's making very specific provision for what happens when parliament stands prorogued. in that set of circumstances the bespoke rules that we re circumstances the bespoke rules that were set out in four apply and the first obligation that happens is the
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minister of the crown can't comply with the obligations under two and three. so this is specifically contemplating that as a result of the prorogation, despite having published the report under one, they will not be an opportunity or the possibility of either laying or moving the motions. and in that set of circumstances i recognising that you can't for the purposes of this set of sections lay in this way, what then is to happen to complete those steps? that's what ford is about. the first thing that happens is you've got to get parliament back. what are the mechanics of that? with
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the to ask the queen to make a proclamation? i am not sure is the a nswer to proclamation? i am not sure is the answer to that. you've got the day within the period and that is a period we respectfully submit five calendar days. your point is that all of this could have been translated to a wider provision or a different provision but parliament chose not to do that. my point about how this works, what i'm... chose not to do that. my point about how this works, what i'm. .. you are going to say it only requires compliance within a period of six —— subsection three and not subsection two but the problem with that submission is that three depends upon the day on which the report is laid before parliament which takes you back to two. that's true but it
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simply being used to define the period so we take the day of laying as the date of publication and you still get the five days. you have to have something because it's recognising earlier on that you can't comply with two or three and two was about laying so the only way of making it work sensibly is that. does that make sense? then you have a period of five working days. so you say because the second report at to come in on the 9th of october subsection for allowed the government to prorogue until the 14th of october. exactly so.
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so this is a way of making its way —— work sensibly. that means you set your period and it refers to a period so it's gotta be a period which is referred to and it's the five calendar day period but you do your five day period for that and then you have five working days and what that does it set a mechanism by which parliament and the five day calendar period is a sensible one because it requires some mechanics to be gone through to get parliament back to do with the laying on all of that. so you say parliament wished to be in session from the 14th and five days thereafter. exactly.
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this... nobody has queried this in this litigation. do you say there are any restrictions? five working days and that's why prorogation happened on the ninth. i hope that's of some assistance. the extended prorogation scenario we have dealt with that. we are dealing
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here with a five week prorogation. it isn't our position and historically they have been prorogation is for prolonged periods as you see. in extreme examples they would be practical controls in any event over a longer prorogation including specifically all the concerns about government needing money to govern and armed forces discipline and so on that we set out in our case discipline and so on that we set out in ourcase on discipline and so on that we set out in our case on paragraph 92. we have cited in our case on paragraph 76 third throwing out the lack of legal enforceability even in extreme circumstances. that passage is predicated we note not on the non—review ability of the prerogative as such but it's
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examining the fact there are controls which are parliamentary ones and there are good parliamentary reasons why the government would need to go back to parliament for the authority to get money and so on. my my learned friend seeks to identify standards against which he says the court can make these sorts of judgments. how can it do it and there are two. the first is responsible government but we submit the same issues arise in relation to that. how do you determine the standard? that. how do you determine the standard ? how that. how do you determine the standard? how can it be appropriate for the courts to do so? what type of issue or issues of political and national controversy or importance
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would trigger the intervention? what is responsible and what isn't? and you still have to solve the problem of sufficiency of opportunity for parliament to legislate or control. so we submit that responsible government does not provide any a nswer to government does not provide any answer to the lack of standards, it prompts the same questions in a different form. parliamentary sovereignty and the reliance of that we submit does not advance this case will provide an answer. the difficulties in terms of... cannot be sidestepped simply by reciting parliamentary sovereignty. they have to be confronted. it has to be said that parliamentary sovereignty requires the courts to intervene to design and apply a principle which controls when parliament must sit in
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circumstances when parliament itself has not done so. so parliamentary sovereignty is a phrase provides no a nswer to sovereignty is a phrase provides no answer to the principled objections that have been advanced. for all the reasons i have given, the courts can engage in for them to engage in the exercise fat load panic seeks to invite you into would have the difficulties of no standards and propriety we submit. the political or high policy line set in the case law is set by reference to the equally constitutional principle and a much more than a blip —— applicable one which is the separation of powers. especially i
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emphasise in circumstances where parliament has legislated specifically to deal with sittings and has preserved the prerogative of prorogation. the coat is in effect being asked to redesign and produce additional sittings of parliament by some set of legal mechanisms or controls and for all of the reasons given by the divisional court in theirjudgment in given by the divisional court in their judgment in paragraphs given by the divisional court in theirjudgment in paragraphs 63 and 64 addressing the parliamentary sovereignty argument directly and focusing on the relationship between the executive and parliament, that is appropriate. that's the second point. the third point is that there is no support in the case law for any principle of that kind at all.
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parliamentary sovereignty has the well—established meanings and principled basis established in the case law. as we have set out in our case law. as we have set out in our case on paragraph 97 giving the meanings of parliamentary sovereignty. hello and welcome back to the supreme court, where the hearings into whether borisjohnson acted lawfully in suspending parliament continue. this is sirjames eadie qc for the government, who has been arguing that this is not a matterfor the courts, this is a matter shot through with politics, the decision to suspend or prorogue parliament. lord kerr, one of thejudges, did ask sirjames, what if a prime minister in the future wanted to
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prorogue or suspend parliament for a much longer time, for a year, wouldn't that then be a matter for the courts? this is the debate and sirjames eadie was saying if the argument is that parliament is being stop from having enough time to scrutinise brexit, sirjames for the government said how long is needed for parliament to hold the government to account over brexit, how are the courts, how is the law supposed to decide that amount of time? that is the whole crux of the matter, as far as the government's case is, this issue of suspending parliament is not in the legal phrase just to see able, in other words, it is not a matter of legal standards whether courts can decide, it is simply a matter of politics. let's listening a little bit more for the government case, sirjames eadie, who is going to be talking
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until one o'clock, lunchtime, when the court will take a break. again, for good reason, again doesn't go anywhere near that, in that case the court was considering the nature and extent and legal controls over a broadly expressed power to set fees for the employment tribunal is and thejudgment of for the employment tribunal is and the judgment of lord reid for the employment tribunal is and thejudgment of lord reid made it absolutely clear that if it is a generally expressed power, a bit like those cases on principle of legality, you have to take into account the constitutional principle and importance of citizens being afforded access to court, so that goes nowhere near saying an aspect of parliamentary sovereignty the courts need to protect is the sittings of parliament and whether or not parliament has sufficient time, whether prorogation should be two weeks, three weeks or four weeks or even five weeks. that is what i
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wa nted or even five weeks. that is what i wanted to say about all of that. i wa nted wanted to say about all of that. i wanted to say about all of that. i wanted to touch finally and briefly ifi wanted to touch finally and briefly if i may on some of the factual matters that arise and this is if you were under a heading, lawful in any event, the key starting point we respectfully submit is that parliament is being considering —— has been considering brexit for months and years, it has had the opportunity to make whatever legislative position is wished over that period and it has in fact made a plethora of legislative provision, including an starting with, the authorising of the giving of the article 50 notice, following miller one. specifically, parliamentand more directly parliament has decided with this set of guidelines in mind
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to make section three of the northern irish legislation. and the prorogation decision thus sits in a context in which parliament would sit and would debate and legislate if it chose to in the week leading up if it chose to in the week leading up to the prorogation on the 9th of september and would have further opportunities after the queen's speech on the 14th of october. that period as we have seen being conditioned by the prime minister's provisions in section three. doesn't they have to be a debate on the queen's beach question mark how long does that customarily take? five days. —— does that customarily take? five days. -- queen's speech. we saw from
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the debate yesterday and i am not going to go back to it that few sitting days in fact have been lost by comparison with recess or adjournment. recesses introduced by adjournment. recesses introduced by a proposal from the government, is that right? i think that is right, a motion. which the house of commons votes? i think they are different, aren't they, house of commons, house of lords? separate? quite, quite. is there any extra nation as to why a recess was not contemplated here instead of prorogation? —— explanation. we have made those submissions. it could be possible to have both, wouldn't it? recess for
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the party conferences? you could. in theory, you could have any combination of the two. you could in theory have a shorter prorogation period and a longer period of recess. the decision not go for a recess. the decision not go for a recess combined with prorogation meant that parliament was deprived of the committee to vote on whether it would go into recess over the party conference period or because of imminent events it could choose not to do so. my submission as it had plenty of opportunities to regulate its own citizens at all stages. —— sittings. my lord, just before leaving and without wishing to make a julie point against men before leaving and without wishing to make ajulie point against men —— eminent politician, one of the
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exa m ples of eminent politician, one of the examples of recess being taken into account was when sirjohn major was prime minister. you have got that choice, certainly, but the idea that recess needed to be thought about was a relevant consideration and so on, a matter of political choice. in the memoranda yesterday, there isn't any discussion about the possibility of going into recess, combined with prorogation. there isn't a discussion of that. there is discussion of that. there is discussion of that. there is discussion of the party conference season, a number of sitting days actually lost, discussion about facilitating the snp party conference, there is discussion about the bills falling and so on. those choices are all available in theory. the first point i wanted to make on the facts, i am not going to spend long on, but the first one i wa nted spend long on, but the first one i wanted to make on the facts is that it is plain from those underlying
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documents, both from the mickey to cost mmo the 15th of august and in particular what was said to the prime minister to the cabinet that there was a real concern to ensure that parliament had adequate opportunities, sufficient opportunities, sufficient opportunities coming to debate these matters, they all recognised and specifically recognised that parliament would have the chance to do, it may be said, precisely what it then did do, which is in the run—up to the 9th of september two debate and to legislate. 0f run—up to the 9th of september two debate and to legislate. of course, in that period, there were lots of other options open to parliament, a motion of no confidence could have been introduced, no such decision was made to alter section three and
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the requirements that it contained for parliament to sit in the run—up to the 31st of october, none of that was done. but the suggestion ultimately that on the basis of those materials, those factual basic materials, the prime minister was concerned to stymie parliament, whatever on earth that means, as we respectfully submit, untenable. 0f course it is true, as everyone has acknowledge, if you prorogue, prorogation has the effect that has been identified but all of this was donein been identified but all of this was done in the sure knowledge that parliament would have all the opportunities it had to legislate, to control, do debate in the manner that it interacted up to the 9th of september, specifically about brexit and specifically about sittings if it so choose and would have opportunities when it came back on the 14th of october, so that basic attack, if the basic attack is this was improper purpose or impossible —— improper effect, improper
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motivation, because it was designed to stymie parliament, we respectfully submit it is unsustainable. and we have produced andi unsustainable. and we have produced and i should make it absolutely clear, we have produced exceptionally the cabinet minute those are minutes that are produced only with extraordinary rareness and you have the documents that went to and from the prime minister in terms of the briefing to him. we do have those documents but we have no witness statement from anybody apart from the treasury solicitor and so no one has come forward from your side to say this is true, we are just given the documents as it were floating around, for what they are worth, the whole truth, nothing but the truth, partly true? they are just floating around. isn't it odd that nobody has signed a witness
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statement to say this is true, the reasons. . . statement to say this is true, the reasons... these statement to say this is true, the reasons. . . these are statement to say this is true, the reasons... these are the true reasons... these are the true reasons for what was done. my lord, you have the witness statement you have. you have the witness statement you have. my submission is that in the light of the case... it remains open to the court to make judgments about the facts on the basis of the underlying documentation if that is produced without underlying documentation has been produced, it is documentation at the top of doesn't —— government, briefings directed to the prime minister twice and what the prime minister said to cabinet and what cabinet discussed on that occasion and no one has suggested those are not proper documents. you saw also the letter from the government legal department yesterday. my lord is right, you don't have a witness statement of the kind you would traditionally, there may be all sorts of reasons for that. how unusual is that because most of a judicial review,
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you are dealing with decisions that are recorded and you don't expect to have an affidavit from the leader of the council to say, yes, that is what we were doing, because i don't... what we were doing, because i don't. .. and what we were doing, because i don't... and in what we were doing, because i don't. .. and in some what we were doing, because i don't... and in some cases, what we were doing, because i don't. .. and in some cases, what one has is amy covering affidavit that says here ministerial submission. the suggestion seems to be that the prime minister should personally have sworn an affidavit and then been subject to cross—examination.” have never experienced that. that was one alternative. the alternative was one alternative. the alternative was the cabinet secretary... would that be practical? i am generally concerned to know how they should be done if lord pannick is right, because the idea that the prime minister would have to come back from luxembourg... i have never been involved in a judicial review in which the minister who made the decision has actually given a
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witness statement. would the cabinet secretary... civil servants often do and that could be in a variety of forms. with the cabinet secretary have been cross—examined on the government's motives question mark if that application would have been made, it would have been resisted like theory. i think it is important that in the context of a judicial review, one comes across these issues of how the evidence should be dealt with and it is not always straightforward. no, but my lord, certainly in relation to the actual minister or secretary of state, it is undoubtedly not the practice. indeed, my experience it is uniform, the secretary of state would produce a witness statement of that kind. lord pannick says... made clear to the government what they
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conceive to be an alleged to be the true motives for the prorogation. the only answer that the government has given is to produce documents which predated the allegation and it would have been entirely conventional and to be expected that a statement would be made in which it was averred that those documents contain the only reasons for the prorogation and there is no explanation as to why that convention was not followed. no, there is in, but the answer is you have the documents that were produced on the documents that were produced on the documents that were produced were at the height of government, as i have the letter saying... the central point i am making is that those were not in reaction to the case that was being made against them. one needs to be a bit careful of that because otherwise any claimant can turn up and make any allegation and say
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there we are, and now i would like to cross—examine you about it. there are questions there but the basic legal position is that the court can operate and we respectfully invite them to operate, on the basis of the line —— underlying documents that have been produced, particularly documents of that seniority, if i can describe them in that way. if you look at those documents, certainly the suggestion that the prime minister was operating on the basis that parliament was intended to be stymied is untenable. both in the briefing to him and in the state m e nts the briefing to him and in the statements to cabinet he made it absolutely clear that he understood that parliament is going to have the opportunities it in fact had an if he tried to say that knowing that parliament was going to come back on the 3rd of september and what it interacted, it was entirely predictable. it was either going to bea predictable. it was either going to be a motion of no confidence or legislation and so the idea that parliament would be deprived of the opportunity to take whatever steps it wished in that run—up, including
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in relation to the sittings in parliament, isjust in relation to the sittings in parliament, is just simply untenable. the second and final point i wanted to make on the facts and then finish is really by way of invitation, i have not got time now andi invitation, i have not got time now and i do not intend to go through the documents themselves but we do respectfully invite the court to read and i am sure the court will already have read, the first memo which is the briefing to the prime minister and that cabinet minute and from those documents, we respectfully submitted does appear that there were a myriad of reasons for the length, which is truly what we are arguing about, of this prorogation. we may say it has not covered recess prorogation. we may say it has not cove red recess versus prorogation. we may say it has not covered recess versus prorogation, it has not covered the precise period, but in truth and in fairness, reading those documents, the evident aim was tolerably clear and it was that everyone and
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particularly the prime minister was concerned to get to a place where a queen's speech was produced. they recognise prorogation had the effect it was going to haven't fully recognised the context would involve parliamentary opportunities to do what they in fact did, they recognise that some ills would fall —— bills, all those matters would need to be considered, and in particular the paragraph, my lord took you to yesterday, paragraph ten in the da costa memo, they recognise that the central planning assumption i think as it was put to get to the queen of the speech was incredible tight anyway and a period of five weeks was the minimum that would be required to get there. you can say, as lord kerr would no doubt say, what about recess question mark you could do recess and parliamentary committees and the rest of it, but the fact of the matter is there is a short period within which government intensively prepares not merely for
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all the possibilities that brexit throws up but for the preparation and presentation of a full—blown new legislative agenda to deal with a whole raft of domestic governmental policies and so the question you are in truth being asked this can be said that was improper, we respectfully submit not because the primary basis for that is gone, once you recognise the prime minister fully appreciated parliament would have the opportunity, but can you say that was an irrational or improperjudgment say that was an irrational or improper judgment in relation say that was an irrational or improperjudgment in relation to the length of it or even in relation to whether it should be an adjournment or recess, with all the business of parliament dragging ministers and civil servants' attention, parliament dragging ministers and civil serva nts' attention, or should it bea civil serva nts' attention, or should it be a short period of prorogation to prepare for the queen's speech, how does the court answer that question? could it be five, could before, could be three, could something else? not appropriate for
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the court to be in that territory. if parliament wants to do it, it can do itand if parliament wants to do it, it can do it and it has done it. and that we respectfully submit is the answer to this appeal, so for those reasons, we do respectfully submit the divisional court's judgment was entirely correct for all the reasons that they gave. i am going to write that they gave. i am going to write that down, sir james!” that they gave. i am going to write that down, sirjames! i should have said that at the beginning and sat down. sirjames was looking at me because he knew i could not be tempted to another question. is it accepted there was a particular advantage to the government in having a prorogation period of five weeks? there was a critical advantage to the government. in fa ct, advantage to the government. in fact, i am advantage to the government. in fact, iam not advantage to the government. in fact, i am not sure i can answer that question. during whatever
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period, be it seven days, or a longer period if the decision to adjourn had been taken in combination with prorogation, it does mean that the period during which scrutiny of the government's actions, particularly it would be said in this very critical period coming up to brexit is reduced, now can it be other than the case that represents a advantage to the government, a political advantage? there is political advantage to the commending having a clear space, we will certainly accept that, having a clear space when it is not subject to the daily grind within which to prepare not merely to do all the things that need to be done in relation to brexit but also to prepare the queen's speech and you saw paragraph ten in the da costa memo. . . saw paragraph ten in the da costa memo... it saves a lot of time, you
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could be devoting resources elsewhere. but my question is a rather different one and that is, whether there is, if it be the case that scrutiny is rendered impossible, could that not be properly regarded as an advantage to the government? i suppose it could be, in theory, but... the respondent foster vs case here it is purely incidental benefit, not one that was sought? you read the memos and use it -- sought? you read the memos and use it —— read what was said to cabinet... that depends on us accepting the memos are comprehensive of the reasons that the five week period was chosen, thatis the five week period was chosen, that is why it may be argued that a statement in reaction to the case made against you might have been... i think the only case that was advanced about that was not that
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government was seeking a political advantage in having a lack of scrutiny in that sense on the facts, the case that was factually advanced based on the interviews to which lord pannick took was that he was trying to improve the position of the negotiations with the eu. we certainly would not accept that was improper. but my lord, prorogation is what it is, you can certainly work on the assumption that everyone understood that prorogation had the effect that it has. but even if you we re effect that it has. but even if you were to conclude that some part of the motivation for the length of the prorogation, which is all that is attacked, was critical advantage, thatis attacked, was critical advantage, that is not unlawful. and this is the territory in which you are being invited —— political advantage. you are being invited tojudge different species of political advantage, is one relevant, is one proper, is one improper and we submit that is not an improper place for the court to
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be. —— appropriate place. 0ne an improper place for the court to be. —— appropriate place. one day, my lord, i will persuade you of something. can i ask you a question about relief? just before you do, cani about relief? just before you do, can i say, what we are proposing to do on release, and i have discussed this with lord keane, we think it is quite important that we should have something very short in writing on relief and not least because as an issue, the various stages to prorogation you know about, there is to be borne in mind the question as to be borne in mind the question as to quite what the reasoning of the court would be in the event of a finding that this was unlawful. normally in public law, as you know, the position is that unless the reasoning of the court leaves open
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only one lawful answer, the matter goes back for reconsideration and does not formally have to be remitted, it is not terribly matter whether the thing is declared void or is not declared void, there is a great big intellectual debate about that, which you are aware of but this does not touch that. the decision—maker can retake on a lawful basis, if that remains open. lots may depend on the precise reasoning of the court as to the options that are available. and that may engage questions as to whether or not even in the event of a finding of unlawfulness it would be appropriate to do more than make our submission ultimately i think it is going to be what it has been today, which is a declaration abnormal. you are watching the second day of hearings at the supreme court, which is considering whether borisjohnson acted lawfully in suspending parliament and that is the government's lawyer, sirjames eadie qc, arguing that the decision to
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suspend parliament is not something a court of law and rule on. the 11 judges there are ruling on two appeals, one by the campaign a gina miller's team and won by the government which is contesting a ruling in the scottish courts. yesterday the court was told the prime minister suspended parliament to reduce the risk of mps suspending -- his to reduce the risk of mps suspending —— his brexit plans. we will resume our coverage when they return after lunch at two o'clock on bbc news. just before we go to the weather, i wa nt to just before we go to the weather, i want to show you some material that has come in of the prime minister being confronted by an angry father ona being confronted by an angry father on a visit to a hospital. there are not enough doctors, nurses, on this
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ward. it is not well—organised enough. the nhs has been destroyed. it has been destroyed. it has been destroyed and now you can hear for a press opportunity... there are no press opportunity... there are no press here. what you mean? who are these people? it is a bit late now. years and years and years of nhs being destroyed... and you are telling me there are no press here. there are no press here? this is a press opportunity. you invited the press opportunity. you invited the press here! in your la la land, believe whatever you want. well,
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thatis believe whatever you want. well, that is what happened a little bit earlier in a hospital, borisjohnson is visiting today. more coverage on the bbc news at one, which is coming up the bbc news at one, which is coming up shortly. right now it is time for a look at the weather forecast. the weather across the uk is looking very quiet in the next few days. it is thanks to a big area of high pressure and they will be largely dry weather and a lot of sunshine. but there is always an exception to the rule, it seems, and at the moment, that is scotland, where we have a warm front feeding in thicker cloud and rain, patchy rain this afternoon. contrast between the north and south of the uk today. through the evening and overnight,
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most of the rain will clear away from mainland scotland, pushing towards the northern isles. still keeping quite a lot of cloud. but they could be patches of mist and fog returning. some rural spots may be three or 4 degrees first thing on thursday but a lot of sunshine. it will take a while for us to see some decent sunny spells developing across scotland on thursday but what across scotland on thursday but what a difference in the temperatures. aberdeen, at 218 degrees. —— to 18 degrees. the area of eye pressure —— high pressure is centred on the continent. the southerly breezes pulling warmer air towards the uk. it will lose the cloud from the north on friday. almost sunshine
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from top to tail and temperatures perhaps up to 20 greece across southern scotland. 22 further south. -- 20 southern scotland. 22 further south. —— 20 degrees. gentle southerly breeze, widespread sunshine, temperatures of up to 25 for the south—east of england. you may have noticed to the west of the previous chart, weather fronts trying to edge in on sunday. it looks like a very different day. more cloud and outbreaks of rain and it will also feel considerably cooler.
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the supreme court is told that borisjohnson's suspension of parliament is not a matter for its judges to rule on. the court is considering whether the prime minister acted legally when he suspended parliament. his lawyers say it's not for the courts to decide. it would not be constitutionally appropriate for the courts to seek to do so. that is because the exercise of the particular power is appropriate for political, notjudicial resolution and control. but one supreme courtjudge questioned whether the queen should have been involved in the process.

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