Supreme Court catch-up : Wednesday

Tuesday's Supreme Court case on prorogation looked to be evenly balanced. On Wednesday, it looks like things may have swung against the government.

Defending the government, Sir James Eadie appeared to concede that prerogative powers (i.e. ones that can be exercised with discretion and not according to statutory rules) are justiciable, at least in principle. He also conceded that it was for the courts to decide on the limits of executive powers. But he said, quite reasonably, that justiciability depends on the subject matter, and not all such executive prerogative powers are automatically justiciable. Where that runs into difficulty in the current case is that prorogation is very clearly a political power, and matters of "high politics" aren't justiciable... but prorogation is also a constitutional matter, in that it prevents Parliamentary scrutiny. He fully conceded this latter point, saying that prorogation "is what is is" and that it has the effect of preventing scrutiny by design. He doesn't find anything wrong with this, simply that this is a political reality and there are no laws about how to use prorogation - hence in his view it's entirely a political matter. He said that if prorogation did breach statutory powers then the courts could intervene, but not in any other cases; that prorogation could be justiciable in some special instances does not mean that this is true in general.

He felt most successful when defending prorogation on strictly legal grounds. He likened it to dissolution, which was recognised as an executive, prerogative power and was widely recognised as therefore not justiciable.

But he fell into terrible difficulties when it came to prorogation as a constitutional matter. He accepted that there have to be checks and balances on all forms of power, but his claim that Parliament already had sufficient powers to check prorogation does not feel credible. Yes, in principle it could legislate against it, but it wasn't expecting this to happen without warning - it had limited time, and for it to change constitutional procedures is hardly something it does on a whim. His claim that there could be a check on prorogation after it happens feels weak too; yes, Parliament has the option of a No Confidence motion, but the fundamental point is that prorogation removes Parliamentary scrutiny in a way that it can't do anything about. Bills can be dropped entirely or delayed, which is, the judges noted, obviously not great in a time sensitive situation - even changing the government wouldn't help with that. That Parliament can and does sometimes act very quickly doesn't mean that they don't need more time; one of the judges noted that time isn't infinitely expandable. Eadie maintains that there will still be enough time for Parliament to properly scrutinise the Brexit bills. but this seemed very implausible when he noted that the usual time to debate the Queen's Speech is five days !

Eadie noted that Lord Pannick does not say prorogation is a problem in general, only this specific use of prorogation. His response to this was that any use of prorogation is a proper use of prorogation, and therefore it couldn't be used improperly ! This felt downright ridiculous. Similarly, when asked whether prorogation could give a political advantage, he admitted that it did, but in this case that was an entirely incidental outcome. He had no answer as to why the government should have preferred prorogation (which is at their discretion) to recess (which Parliament votes on). Even admitting that the government gets to use prorogation however they like, this doesn't answer why they've chosen to use it here when there were alternatives.

Finally, one judge was not at all impressed with the lack of witness statements as to the veracity of the documents. He said they were just "floating around" and seemed skeptical that they were complete and accurate. Eadie had no real answer to this, saying that it wasn't convention for ministers to give such statements. The judge was similarly overt in saying that there was no higher institution to act as a check on the executive than this court, the clearest instance by far that the judges do perceive the matter as justiciable and possibly - by implication - even unlawful. Why else make the statement if there's no need for the court to exercise its role in this case ? Eadie finished rather lamely (although convivially) with, "One day, my Lord, I shall persuade you of something !"


Then there was Mr Aidan O'Neill, defending the Scottish ruling that prorogation is illegal. His was an entirely different style of oratory of all of the others. He began with a 20 minute sermon on the importance of the constitution, the Union, the rule of law, and the joys of bonnie Scotland. His whole speech was littered with references to Braveheart, Macbeth, and moral principles. He mentioned the Scottish MPs singing in the House after prorogation was declared; he sharply criticised Boris' disastrous Facebook PMQs as a way to circumvent Parliamentary scrutiny. In some ways it felt good to put the whole situation into its proper constitutional context, and to hear someone say outright that Boris Johnson was a lying scumbag (he didn't quite use those words, but he came awfully close) was extremely heartening. On the other hand, I felt it would have been better to stick to the facts, and I'm not sure how well using emotive rhetoric rather than cold logic will play with professional judges whose whole job is to be impartial and objective. Whether Boris' wider actions can be considered as evidence of his motivation in this case, in a strict legal sense, I don't know.

When he finally finished being incredibly Scottish (honestly I wondered if he was half-drunk), he did make some good points. He maintains, as Lord Pannick did, that there is no need for the judges to rule on every single aspect of prorogation, as Eadie insisted. The case is not about carefully defining the exact conditions and permissible usage of prorogation : it's about examining whether it's been applied correctly in this instance, in these conditions, and whether this usage is proper. There is no need to examine the exact number of days because the point is to examine the intent and the effect. In principle a delay of a single day of Parliamentary scrutiny could be critical. This can be judged by examining the effect, which is something that can be done objectively. The debate is not "academic" as some have claimed, as prorogation is actually happening and having consequences. He also noted that the government have prorogued every single day the law (due to other constraints) allows them to.

O'Neill questioned the statements from the governments. He essentially said that "methinks they doth protest too much" with regards to there being so much emphasis on reassuring people that prorogation was not about Brexit. There was no affidavit to verify the witness statements, which he said was not conventional at all, contrary to Eadie's claims. He said they could not be taken on face value given the government's track record. The judge agreed that the statements the government provided are an excuse for prorogation, not actually an explanation for why it's being used in this way. O'Neill added that the amount of time prorogation removes means that there will be hardly sufficient time to adequately scrutinise the Brexit legislation, and that the PM has admitted the EU may try and hold out for Parliament to delay or block Brexit.

While he did cover some technical details of other relevant cases, his main points were almost all constitutional. He noted that Jacob Rees Mogg had previously suggested using prorogation for just this purpose. He notes that prerogative powers aren't "magic", and must be accountable by being narrowly and strictly constrained, and justified. For them to be completely above accountability violates the most fundamental principle of the British constitution : the supremacy of Parliament. He re-iterated Lord Pannick's statement that although prorogation has never been legally challenged before, the principle of accountability is absolutely established, and the case can be judged on that basis. That Parliament hadn't passed an Act to restrict prorogation does not imply its consent, he said, because they simply do not have infinite time. And once prorogation is invoked, the only way to hold the government to account is through the court. Surely, it cannot be allowed to simply revoke its accountability so unilaterally. This situation, said O'Neill, is a case in extremis, and thus he's not asking for more general rulings on prorogation, but only as to whether this one is lawful. Since it violates the principle of accountability, that is enough, he thinks, to declare this instance unlawful, without needing to define the entire parameter space of acceptable and/or illegitimate uses of prorogation.


My impression is that if the Court decides to rule on strictly legal principles, they will find in favour of the government. This would be reasonable. It's important to separate political and legislative powers - the Court should decide if the law has been upheld, not what the law actually is. Making law is Parliament's job. Though it does have a duty to make the law clear, where no laws exist, how should anyone else presume to say what's legal and proper ?

But, if they decide that their role is constitutional - and there's every indication that they might - then they cannot but find against the government. The use of prorogation is a flagrant abuse of the constitutional power of accountability. They would be deciding not on what the law is, only how it should be applied. The choice, therefore, is a simple one : should they uphold the spirit or the letter of the law ? The latter is easier, the former infinitely more important. Not having a written constitution might just yet be a huge advantage in upholding justice.