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Hello and welcome to day two of the live blog of the appeals concerning the lawfulness of the current prorogation of the UK Parliament.  Please refresh the UKSC Blog homepage throughout the day in order to get the latest updates. Today’s live blog team comprises Anthony Fairclough from Matrix, and Emma Boffey, Karishma Gadhia, Morag McClelland, Felicity Bramall, Shona McCusker, Sian McNiff, Jennifer Love and Lisa Lennox, all of CMS.

You can watch the live feed of today’s proceedings here and you can see yesterday’s UKSC Live Blog here and we start with a recap of and coverage from yesterday.

Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts.

1603: Aidan O’Neill QC concludes his submissions.  Lady Hale adjourns until 10.30am tomorrow.

1601: Aidan O’Neill QC asks the court to stand up to ‘truth, reason, unity and diversity, stand up to parliament…by dismissing this government’s appeal’.  Mr O’Neill stresses that this government is ‘erosive of the constitution’.

1556: Lady Hale asks Mr O’Neill QC what is the difference between a declaration that an order is null and void and an order for reduction.

1555: Aidan O’Neill QC is questioned by the court regarding a possible amendment to the written pleadings of the Scottish action.  He provides some background to the court regarding the hearing and procedure which was required to be followed.

1552: Aidan O’Neill QC continues and states that the appropriate remedy to be granted is declarator and reduction.  Mr O’Neill QC clarifies, that is reduction of the Order of Counsel dated 28 August 2019.

1550: Mr O’Neill QC states  that Article 9 of the Bill of Rights 1689 is not to be used in a manner to ‘coax executive action’.

1548: Aidan O’Neill QC states that there is suggestion of a remedy being a matter for the discretion of the court by using ‘equitable judgment’.  It is noted by him that this principle has not been developed to the same degree in Scotland as it may have been south of the border.

1544: Aidan O’Neill QC states that there is no ‘No-deal’ statute.

1542:  Lady Hale states that there is always a difficulty faced by the courts as to whether the court should accept the agreement of the parties (referring to the Miller case). 

1538: Aidan O’Neill QC submits that the role of this court is to rebalance the constitution.

1530: Aidan O’Neill QC refers to the decision in Padfield v Minister of Agriculture at page 1061 of the decision. He submits that you look at the constitution and look at the use of the power taken and whether it is compatible with the role of Government at this time.

1528:  Aidan O’Neill QC notes that the documents need to be read in full and sceptically and that this was not a constitutional innovation. He turns to the case law supporting his submission.

1525: Aidan O’Neill QC submits that the Government were aware that there was the potential for attack at the time the memo was produced. He submits that this showed Government was aware that the approach was controversial.

1520: Mr O’Neill QC continues to read from the memo. He refers to the number of sitting days which would potentially being lost. Mr O’Neill QC submits there is a vast difference between Parliament voting on whether to go into recess for the conference season and becoming aware that a decision to prorogue had been taken. He submits to the Court that the Governments first  priority is exiting the EU on 31 October 2019.

1518: Aidan O’Neill QC submits that the Court should be given sight of the whole and full documents because the Government has waived privilege. He refers to the principle set out in the Scottish case of Scottish Lions Co-operation.

1515 Aidan O’Neill QC submits that the Court have no real idea of the reasons for prorogation. He continues to refer to the Prime Ministers comments on the memo and in particular the approval “ticking” yes to the recommendation to seek a prorogation. He refers to the M v The Home Office  in which  an affidavit produced by a Cabinet Minister as showing there was nothing to prevent a Cabinet Minister from producing an affidavit.

1505: Aidan O’Neill QC continues to read from the letter. He submits the letter could interrogate the contents of the letter, he refers to Lord Reed’s comments that it is important to read the memos produced. However, he submits that the Government should not be given the benefit of the doubt given the way in which the documents have been produced. Aidan O’Neill QC refers to  the manner in which the documents have been produced: without the support of an affidavit, redacted and leaked. Lord Reed clarifies that his comments noted that the documents should not be ignored.

1500 Aidan O’Neill QC turns to the decisions to prorogue in a letter from the Prime Minister to MPs. He submits these are the only reasons given for the timing and length of the prorogation.

1455: Aidan O’Neill QC suggests that the government’s legal team were kept in the dark about the government’s plans to prorogue parliament and as such, the court was not given full and frank disclosure of the government’s intention to prorogue parliament.

1450: Aidan O’Neill QC makes reference to the reliance by the court on the good faith of counsel, properly instructed, to put forward a proper and candid disclosure of their case. He thereafter notes that prior pleadings by the Government in this matter dismissed the case as being merely academic and theoretical.

1443: Aidan O’Neill QC states that by impeding the parliament from holding the government to account at a time when it is making significant constitutional decisions, the power is being exercised improperly.

1441: Aidan O’Neill QC says prorogation is a unilateral Executive act and is a derogation from the general constitutional principle of accountability. Therefore, the power has to be construed narrowly and strictly. The derogation must be reviewed with the most anxious scrutiny as Parliament has no say as to when, how, why and for how long the Executive may choose to close down parliament.

1439: Aidan O’Neill QC submits that parliamentary sovereignty is undoubtedly the animated constitutional principle of the UK constitution. The Executive is subordinate to the law and is answerable to the elected Members of Parliament.

1437: Aidan O’Neill QC states that the court is not being asked to create a whole new set of rules on when prorogation may justly be used or for how long. Instead, the court is being asked to act as a constitutional court and determine whether the way the power was exercised was constant with the fundamental principles of our constitution.

1435: Aidan O’Neill QC submits that the Sandyford case is limited by its facts.

1433: Aidan O’Neill QC submits that the prerogative cases referred to have been unduly assimilated. They are a collection of random residual cards. There needs to be further differentiation based on the specific prerogative power being used in each case. The prerogative can go from declaring war to giving honours to proroguing parliament – none having much to do with each other at all.

1428: Aidan O’Neill QC confirms he is now turning to the substantive issues in his submissions (after comment from Lady Hale).

1425: Aidan O’Neill QC refers to the four pillars of the state and the UKSC’s role in adjudicating. He also refers to reminders of when the rule of law has failed, specifically he refers to the statue outside Parliament of Oliver Cromwell as a signatory of the death warrant of Charles I.

1423: Aidan O’Neill QC states we can be made richer by hearing different voices from other rooms. He appears to be conveying the importance of the view from the Inner House of the Court of Session.

1421: Aidan O’Neill QC says we are faced with a country that is afraid to know itself. He submits a country recognises itself when it knows what its constitution is and that is the role of the UKSC in this case. He notes diverse voices are important so there can be an awareness of tradition and a respect for difference and diversity.

1418: Aidan O’Neill QC confirms his focus will be on Scots Law.

1417: Lady Hale asks if Aidan O’Neill QC is suggesting the court dismisses the UK Government appeal in the Cherry case. Aidan O’Neill QC confirms definitely not, but the court should find against it.

1415: Aidan O’Neill QC submits the banner of the law, chosen to symbolise what the UKSC is about, states that the rule of law matters. He submits that histories and perspectives make up our Union and should receive a hearing and understanding before the UKSC.

1412: Aidan O’Neill QC notes it can appear in England the important dates in history are 1066 and 1966. Lady Hale interjects in jest, noting he might have to explain the importance of 1966 (when England won the world cup). Aidan O’Neill QC digresses.

1409: Aidan O’Neill QC notes the role of the UKSC is to protect the constitution.

1408: Aidan O’Neill QC notes that the UKSC has taken cases from Scotland which challenged primary legislation from the Scottish Parliament. Including the assessment of the rationale behind policy choices. The UKSC has previously said, looking at the issue from a distance, it sees the judgement was wrong and has overturned the position. With reference to the Cherry petition , Aidan O’Neill QC suggests the Inner House of the Court of Session was returning this favour, to give a better perspective of the issues.

1403: Aidan O’Neill QC kicks off by making the point that the most necessary quality to understand and untangle the issues involved is distance to lend perspective, discernment and sometimes disenchantment. He goes on to state the Court of Session Inner House had the advantage of distance and the UKSC has the advantage of a view from the periphery outside the Westminster bubble.

1402: Proceedings have resumed post lunch. Aidan O’Neill QC will begin his submissions on behalf of the Respondent in the Joanna Cherry Case.

1300: Lady Hale adjourns the Court for lunch until 1400.

1257: Aidan O’Neill QC for the Respondent in the Joanna Cherry case rises to his feet. He initially suggests that the Respondent should be entitled to a right to input into the question of relief.

1256: They turn to consider relief. Sir James Eadie QC asks that the court provides a written statement on relief (i.e. what should happen once the judgment is handed down).

1253: Lord Kerr further asks whether if the prorogation rendered scrutiny impossible, could it be a political advantage. Sir James Eadie QC accepts that this could be the case in theory and further suggests that Lord Kerr review the memos. Lord Kerr states that is the point that it would have been useful for a contemporaneous witness statement. Sir James Eadie QC submits that prorogation is what it is and that each member of the government knew what its effect was.

1251: Lord Kerr asks whether it is accepted that there was a political advantage to the government by having a prorogation of five weeks.

1250: Sir James Eadie QC submits that the second de Costa memo and the cabinet minute produced by the government demonstrate that the aim of the prorogation was so that the government, in particular the prime minister, could produce a Queen’s speech, and that this would have taken time. Sir James Eadie QC submits that the court could not comment and it would not be appropriate for it to comment on whether that is the correct length of time.

1246: Lord Carnwath compares the absence of a witness statement to a standard judicial review. He asks whether such a witness, whether it have been the prime minister or a cabinet minister, could have been cross-examined. Lord Kerr states that the important question in this case is the motive for the prorogation, and there is no explanation for the documents that have been provided.  Sir James Eadie QC submits that the court can operate on the basis of the documents that have been produced, and if the documents are reviewed then the questions asked by the appellants are answered.

1242: Sir James Eadie QC notes that they have produced the cabinet minutes. Lord Wilson accepts that they have the documents but states that the documents are just ‘floating around’ and that no witness statement has been provided. Lord Wilson contends that it seems odd that no-one has come forward to confirm that the case of the government is true.

1241: Sir James Eadie QC submits that parliament had options during the period up to the prorogation, such as a motion of no confidence. Sir James Eadie QC submits that the Inner House’s decision that the Prime Minister acted to ‘stymie’ parliament, is unsustainable.

1238: Lord Kerr asks whether parliament could have been recessed in combination with prorogation, and whether that could have been discussion. Lord Kerr refers back to a memoranda spoken to yesterday which made no mention of such a recess-prorogation hybrid.

1236: Sir James Eadie QC states that parliament has had years to legislate and consider the effect of Brexit. The prorogation decision sits in a position where parliament had the opportunity to sit and debate in advance of 9 September prorogation and after the Queen’s speech from 14 October. Lord Wilson asks about how long a debate on the Queen’s speech takes and Sir James Eadie QC responds that it would take five days.

1235: Sir James Eadie QC turns to make sumissions in respect of the ‘factual matters’.

1233: Sir James Eadie QC states that there is no support in the case law for parliamentary sovereignty having the effect suggested by the appellant. Sir James Eadie QC goes on to say that the key purpose for present purposes is that expressions of that parliamentary sovereignty is in enacted legislation, rather than by the courts. The first Miller case suggests that nothing less than enacted legislation will do to provide for parliamentary sovereignty.

1229: Sir James Eadie QC submits that the questions of parliamentary sovereignty cannot address justiciability. Parliamentary sovereignty requires the government to step in and assist parliament on when it should sit when parliament does not do so.

1227: Sir James Eadie QC submits that practical considerations circumvent an ability for a long or indefinite prorogation, such as A.V. Dicey’s concerns about government needing money to govern and needing to go back to parliament for that.

1222: Lord Kerr and Lady Arden ask about the mechanics of the Northern Ireland (Executive Formation etc) Act 2019.

1221: Sir James Eadie QC takes the court to section 3, Northern Ireland (Executive Formation etc) Act 2019.

1215: Sir James Eadie QC  states that the centrepiece of the Miller claim was that the purpose of the prorogation was to circumvent parliament from legislating in respect of no deal Brexit on 31 October 2019. Sir James Eadie QC  submits that parliament has had and has taken the opportunity to legislate. He cites a number of pieces of primary legislation which have been put in place in respect of Brexit. Sir James Eadie QC  submits that it is an impossible question for the courts to determine regarding how much more time should parliament have been afforded.

1212: Sir James Eadie QC submits that it is for the government to regulate the sessions and sittings of parliament subject to the specific constraints that exist. Even if a prorogation were just for a Queen’s Speech, it would be difficult, or impossible, for a court to assess how long that should be. Sir James Eadie QC goes on to say that the formulation and design of the principle simply raises questions that the court cannot answer. He further asks whether it is appropriate for the courts to designing a set of such rules, and he submits not.

1207: Lady Arden asks whether the courts would have no role in a situation in which the length of a prorogation has no rational connection with the purpose of such a prorogation. Sir James Eadie QC replies that the courts should not have such a role – it is straying into political matters.

1203: Lady Black asks Sir James Eadie QC  how parliament could have applied the checks and balance on prorogation in this example. Sir James Eadie QC  replies theat parliament can control the prorogation process before and after a prorogation. Sir James Eadie QC  suggests that after prorogation, parliament could, for example, call a vote of no confidence. Lady Black further questions how useful parliament’s checks and balances are after the event; Lord Kerr also takes up this line of questioning.

1200: Sir James Eadie QC  states that the example of the Parliament Act 1949 referred to by Lord Pannick QC yesterday was an example of political manoeuvering by the government of the day.

1156: Sir James Eadie QC emphasising that this isn’t just about the Court making an order or a decision in relation to a particular length of prorogation – the Court cannot do that – but the deeper problem is the lack of standards against which to test, for example, what is relevant or irrelevant.

1152: Sir James Eadie QC referring to a recent immigration case in which the issues were whether the police had the power at common law to ask questions of persons arrested as to their immigration status, where the police did not have such powers in legislation.

1149: In relation to the length of prorogation, Sir James Eadie QC considers that, in looking at the Divisional Court judgment, it is quite correct to say that it is impossible for the Courts to decide how long Parliament needs to legislate on Brexit.

1146: Sir James Eadie QC submits that the Courts seek to identify the will of Parliament from legislation. Unless and until legislation is enacted then how the Courts can judge how Parliament wishes to legislate is entirely uncertain.

1143: Sir James Eadie QC advised the Supreme Court has has been handed a note which states that three Bills were carried over.

1140: Sir James Eadie QC confirming that is correct. If Parliament considers certain Bills are time critical, it will act accordingly.

1139: Lady Hale noting her understanding that the automatic effect of prorogation is that all Parliamentary Bills will fall. There is, however, a method of preserving carrying over Bills, in which circumstances the Bills go in to the new session at the same stage. However, if the Bills fall without being carried over they have to start all over again.

1134: Sir James Eadie QC noting that it is self-evident that prorgation means that Parliament will not sit, therefore no Parliamentary business will happen for as long as that lasts. His learned friend, Lord Pannick, only attacks the prorogation at this particular juncture over this particular period.

1132: Sir James Eadie QC setting out his fourth point, which is to put in to context that this is not about rights. It is not about traditional identified areas of non-justiciability.

1130: Sir James Eadie QC confirming he makes no positive submission in that regard.

1129: Lord Sales enquiring whether it is more appropriate for the Court to take decisions rather than the Queen taking a decision where there are political ramifications?

1128: Lord Carnwath noting that there is no example of judicial review being used in similar circumstances of prorogation accross the commonwealth.

1126: Sir James Eadie QC submitting that the position is as reflected in the Briefing Paper, in that it’s a matter of some uncertainty.

1119: Lord Carnwath referring to the Commons Library Briefing Paper on Prorogation. There is an example of a no confidence motion in Canada in 2008 which discusses relevant issues. Do we know whether the Queen has seen this paper? We don’t want to decide these major constitutional issues where there is any doubt as to the Queen’s role.

1117: Sir James Eadie QC submits that there is a series of examples across the commonwealth countries to support that there is no difference between dissolution and prorogation. In both contexts, the Queen should act on advice from her Ministers.

1114: Sir James Eadie QC noting his third general point which is the parallel with dissolution. Dissolution was regularly singled out as a prorogative power whose subject matter rendered it policital and thus non-justiciable.

1110: Sir James Eadie QC turning to his second point, which is the flexibility of Parliament. The common law does not and should not regulate the scheduling of parliamentary proceedings. It is legislated for.

1108: Sir James Eadie QC referring to a Canadian case in which there was caution given that one should be careful against testing legal principles in extreme circumstances.

1104: The Supreme Court questions Sir James Eadie QC as to whether there is anybody who is better placed to defend the legal principle of parliamentary sovereignty than the Supreme Court? Does this policital deicison collide with something which the Supreme Court is duty bound to uphold?

1102: Sir James Eadie QC states that the business of politics includes motions of no confidence and all the decisions, debates, and parlimentary business that has been in newspapers in recent weeks. It is political business, not legal. There are no pre-determined mechanistic rules.

 1100: Sir James Eadie QC submits that decisions about prorogation are sqaurely within the key rationale for non-justiciability and commences outlining 4 key points.

1054: Sir James Eadie QC notes that Lord Pannick QC submitted that prerogative power involves executive power and is therefore judiciable. If that is the submission, Sir James Eadie QC submits that not all exercises of prerogative power are justiciable by default, and justiciability depends on subject matter for all the reasons Sir James Eadie QC has noted. Lord Pannick QC’s interpretation denies that some matters would not be appropriate for judicial intervention – it should be noted that Lord Pannick QC’s case focuses on traditional basis’ such as improprietary purpose. Sir James Eadie QC says he will later discuss whether this is the correct approach.

1045: Sir James Eadie QC notes that rationale for non justiciability is therefore two-fold. Lord Carnwarth queries whether Sir James Eadie QC accepts that prerogative powers are constrained by overrarching fundamental rights, and notes that there are constraints to the power and the purpose of the court is to consider what those constraints are.

1040: It is further noted that non justiciability is at the extreme end of the considerations and factors which determine whether it is right that the court should be making such decisions. A reference from the case of Wheeler is mentioned, which identified matters that depend on a political rather than legal judgment.

1033: Sir James Eadie QC further submits that the fact that the power is prerogative does not make its exercise non-judicial. This additionally does not mean judicial power applies in all forms. It is noted that the nature of the power itself must be considered. Authorities include GCHQ, specifically a quote from Lord Scarman that was further applied in the case of Everett and recently the Supreme Court Yousaf case. Lord Carnwarth notes however, that these cases have not yet been challenged.

1032: Sir James Eadie QC notes that a prerogative government is being dealt with, and that the exercise of that power of the sphere in which it operates is subject to specific legislative control, but is otherwise not controlled or regulated by legislation. It is further noted that Parliament has made provision to sit where it would otherwise stand adjourned.

1031: The eleven Justices of the UK Supreme Court take their seats.

1015: When quizzed on what Boris Johnson would do if the Court found the suspension of Parliament was unlawful because of the advice the PM received, Lord Keen gave a “clear undertaking that the PM will respond by all necessary means” to the Court’s order. Asked if that meant Johnson would try to prorogue Parliament again, he said he was “not in a position to comment on that”.

1008: We also found out yesterday that legal charity, the Public Law Project, has been granted permission to intervene in order to argue that the Prime Minister acted unlawfully because he did not consider the impact on parliament’s ability to scrutinise the secondary legislation required for an orderly Brexit.

0958: Yesterday afternoon, Lord Keen QC argued that the Prime Minister was “entitled” to suspend Parliament for legitimate political reasons, and that the issue of what was and what was not a legitimate political reason was non-justiciable.

0948: There’s coverage of day 1, in The Guardian here and in The Lawyer here – the latter which concentrates on the perils of court bundle administration. John Crace was cutting in his assessment of Lord Keen QC who presented the Government’s case in Cherry & Ors v Advocate General for Scotland, stating that that he “appeared almost comatose” and that “Everyone surely made a mental note not to hire him if they ever found themselves in trouble with the law. Just plead guilty and get it over with. Even if you were innocent. You’d still get a lesser sentence”.

0940: Speaking for 2.5 hours, senior Counsel for Gina Miller, Lord Pannick QC,outlined the case why the English and Wales courts were wrong to find the prorogation of Parliament lawful – that the exercise of the power had been for “an improper purpose”- and that the arguments for the Prime Minister amounted to a desire of the executive to avoid parliamentary scrutiny.

0918: Good morning from the UKSC Blog team covering the the conjoined matters of (1) R (Miller) v Prime Minister; and (2) Cherry & Ors v Advocate General for Scotland before the UK Supreme Court.

Today sees counsel for the Government start submissions in R (Miller) v Prime Minister this morning, with Aidan O’Neill QC doing likewise on behalf of Joanna Cherry MP, the respondent in Cherry & Ors v Advocate General for Scotland from around 2pm.

You can see written cases for each of the parties here.