Supreme Court Catch-Up : Thursday

If things went against the government on Wednesday, then they only went from bad to worse on the final day of the proceedings. In fairness, it was a case of one (Lord Keen) against five, so the day was naturally unbalanced. Still, by the end I couldn't help but feeling the government doesn't have a leg to stand on.


There wasn't actually that much new material, save in regard to technical details and the particulars of previous relevant cases. The Lord Advocate James Wolffe argued that claims that prorogation doesn't impact individual rights is essentially irrelevant, as protecting the constitution is equally important. He accepted that there was a need, when forming a judgement, for comparable existing legal elements with counterparts - and said that they have those here, with the principle of accountability being essential. The period of prorogation is important given the context, he said, and the judges should consider the effect of the decision irrespective of the possible motive. Such effects demand rigorous justification, which have not been provided. He says that there is in fact so much precedent for the principle of accountability that applying it here is a straightforward matter that uses nothing more than perfectly orthodox tools. All of this we've heard before in different forms, albeit stated more boldly here.

He had one extremely important new point though, regarding the claim that dissolution of Parliament was regarded as non-justiciable as it was a political matter. In that case, he said, dissolution was almost always used for calling a general election. This hands power back to the electorate, whereas prorogation maintains the government in power. That is a fundamental difference. Even so, he said that even dissolution could potentially be justiciable in certain extreme cases; the current case is prorogation under extreme conditions, and that such circumstances are what you use to test justiciability. In principle, the government could use prorogation for even more undemocratic purposes.


Next we had Northern Ireland victims campaigner Mr Raymond McCord, who had by far the worst time of anyone in court. He's deeply concerned about how Brexit could threaten the NI peace process, as indeed he should be as a victims campaigner (we in the rest of the UK have often subconsciously dropped the "process" part of the peace process term, probably prematurely). I felt he was right to raise this point, that the ruling here has potentially life-threatening consequences. At the same time, he dwelt on it excessively, almost neglecting the legality of prorogation - which is, after all, the point of the hearing, so it made sense that this annoyed the judges. I had the impression that they would have been happy with a few sentences explaining that the scrutinising of Brexit is being impeded by prorogation, with possible important consequences of that, but more than that doesn't add anything useful to the case here.

He did manage to say, though, that the prorogation is impeding very basic functions in NI though, including the operation of bus services (!) and the courts. He also said that prorogation is ordinarily mundane but in this case it clearly isn't, albeit because of the Brexit context. The legal question should recognise, in his view, the possible impact on Northern Ireland in particular.


We then had Counsel General for Wales Mr Mike Fordham. His contribution was the most technical, focusing on exactly how one could apply well-established constitutional principles in this case. He cited previous cases as precedent. He maintained that the law does indeed extend more broadly than written statutes : it applies equally to new, untested cases, were it must be applied on the basis of principle. But there's nothing strange about this in the British legal system, and he gave concrete examples in support of this as well as concessions by the government's lawyers that prorogation is justiciable in certain circumstances.


John Major's lawyer Lord Garnier didn't offer much that Lord Pannick et al. hadn't said already, except to add the undoubted persuasive force that comes from a former Tory Prime Minister criticising another. He emphasised Wolffe's point that prorogation takes power away from Parliament whereas dissolution puts it back to the people. Dissolution, he said, was not previously justiciable only by happenstance that it had been used in a respectful way that did not provoke a need for legal challenges. In effect, it was a historical hangover, with the British constitution being a series of fudges - as one legal loophole is found, the law intervenes to close it, but no-one ever acts to create a fully self-consistent overarching document. Thus this current ruling would be entirely consistent with the historical approach.

Garnier also noted that regarding the time available to Parliament, it's well-known that laws passed in a hurry tend to be bad laws. Parliament needs time to act and act well, not just a few days for emergency sessions. A No Confidence motion would have wasted even more time so was not the best option available to MPs for them to maintain scrutiny (of course, politically this is much more complex than that, and somewhat misleading in terms of motivation, though the basic statement is correct). He mentioned some interesting ways that prorogation could be used, in principle, under even more extreme conditions, such as avoiding No Confidence votes or disbanding the armed forces (!). He finished by noting that it was plain the government's documents were neither true nor the whole truth but actively trying to mislead, with examples of some ministers actually having been misled.


At last Lord Keen had a chance to respond, but he had little if anything substance to say. He repeated his line that Parliament could prevent itself from prorogation by legislation. He argued that the differences claimed between prorogation and dissolution were more apparent than they were real, though he gave no convincing reasons as to why. He conceded that dissolution leads to a general election, and that this can in principle be misused, but tried to argue that this means a No Confidence vote is therefore an adequate check against the unilateral power of prorogation. That's plainly stupid : No Confidence doesn't automatically lead to an election (it can simply replace the government), and the present conditions mean that an election is not necessarily a way to avoid scrutiny anyway.

Perhaps his only halfway-decent point was that the yesterday's O'Neill's fire-drenched rhetoric betrayed a bias in his interpretation of the government's reasons for prorogation; if one takes them at face value, one reaches a different interpretation. That is true, but implicitly concedes that there is scope for different interpretations and undermines his point that there's no need for an affidavit attesting to their validity. He section ended with some discussion on whether prorogation would remain legal if the advice on which it was granted was declared illegal; no-one seemed convinced that this was the case. It wouldn't be the Queen's fault - constitutionally she doesn't scrutinise legal advice - but the prorogation would nevertheless be illegal.


The day ended with Lord Pannick. He re-iterated his major points : that Parliament could have chosen to avoid a lengthy recess but prorogation denies them that option, that Parliament would still have been in session and (to some extent) accountable during recess, and that the government had not at all explained their reasons for the chosen prorogation dates. He also repeated that a junior partner cannot unilaterally decide to remove their senior oversight, and that there is no reason to suppose that advice from the Prime Minister cannot be subject to the same legal forces as anything else. The circumstances may be extraordinary, but the principle of court intervention in these scenarios is absolutely normal. He said that even if we follow Lord Keen's recommendation of taking the government's documents at face value, then the statements about showing "MPs earning their crust" patently show how misleading they are, since there were plenty of bills that required debate - it is clearly not true that MPs just want to "look busy" when they actually are very busy indeed.

He finished largely answering judges questions as to what they should recommend if they found in favour. These were quite protracted, so at the very least this indicates they are taking the prospect extremely seriously. His recommendation was for the court to absolutely minimise its involvement in politics. It should make a declaration that the prorogation is unlawful, and after that they can - most likely - wash their hands of it, as it will be for Parliament to decide how it responds. It is of course possible that more court action could be required, but with any reasonable Parliamentary response this will not be necessary.

Whether the government will actually act in a reasonable way is, of course, dubious. I say that if they do not recall Parliament despite the court's order, or simply prorogue again, then this is nothing less than abject tyranny. But that is a future matter.


Regardless, on what grounds could the court now rule in the government's favour ? I find it hard to see any. The basic principle that the court can intervene in constitutional matters seems beyond doubt. That the court acts to protect Parliamentary sovereignty also seems inescapable : there must always be some mechanism of accountability. And that the government's advice is misleading, that prorogation was implemented to avoid that precious accountability seems as plain as the big ugly nose on my face. I, for one, cannot see how any sensible constitutional court could possibly decide that this is a power the government should be able to legally exercise.