This is a live blog of the reclaiming motion (appeal) hearing in the challenge brought by Joanna Cherry QC MP and others for judicial review of the Government’s ability to prorogue the UK Parliament.  Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts. Today’s live blog team comprises Kenneth Rose, Stephen Phillips, Rory Thomson, Morag McClelland, Shona McCusker, Sian McNiff, Tobias Seger and Emma Boffey, all from CMS Scotland.

Update on 11 September 2019, 1028: The Inner House of the Court of Session has ruled that the Prime Minister’s advice to Her Majesty the Queen, that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October, was unlawful because it had the purpose of stymying Parliament. The Inner House has declined to recall parliamentarians before the UK Supreme Court makes a final decision on the issue. The UKSC appeal is expected to be heard next Tuesday, 17 September 2019 and we’ll be back to live blog again then. 

1328: Thank you for following our live blog of the reclaiming motion in the matter of Cherry QC MP and others for judicial review.  We’ll be back next week with further coverage, as the Inner House of the Court of Session give their decision.

1256: The Lord President states that the decision should be available on Wednesday but that no interim orders will be granted. The Court then rises.

1253: Aidan O’Neill QC seeks to conclude and seek interim orders pending a decision of the Court.

1245: Aidan O’Neill QC argues that prorogation quite different from dissolution. Also argues that the Petitioners are not seeking to determine when Parliament should sit but only that it should not be prohibited from sitting. Points out that David Johnson QC in his pleadings seem to accept that prorogation can be excessive and in that context the exercise of such powers can be justiciable.

1240: Aidan O’Neill QC states that it is unrealistic that Parliament to regulate the prorogation by legislation in the time available before the planned prorogation. Lord President says the point is whether it could have been included in the No Deal bill currently going through Parliament. Aidan O’Neill QC argues that as that bill was discussed for weeks and months over the Summer between different political parties and so would not have been possible in the timescale

1235: Aidan O’Neill QC argues that the UK Govt tried to frustrate the action by creating a fait accompli.

1230: Aidan O’Neill QC discussing the earlier responses from the UK Govt to the Petition as compared to the sequence of events and the decision to prorogue as evidenced by the documents.

1225: Aidan O’Neill QC back on his feet. Focussing on the documents and whether they should be redacted and admissible.

1220: David Johnston QC considers the question of interim relief as no prima facie case. However on balance of convenience arguments matters on Brexit have moved forward and the case in London has been refused.

1217: David Johnston QC turns to redaction of the documents. Important that redactions remain in place and would cause difficulties for the operation of Govt.

1212: David Johnston QC turning to the question of the purpose of the prorogation as set out in the documents. That it was to allow new legislative programme. There are political considerations and these are proper ones. The lack of an Affidavit is not something required to confirm what the documents are.

1206: David Johnston QC says that case remained “academic” notwithstanding that it appeared from the documents that a decision to prorogue had been made.

1203: David Johnston QC turns to the documents provided by the UK Government. Considering sequence of events as set out.

1158: David Johnston QC confirms on questioning from Lord Drummond-Young that he does not agree with the Petitioners’ contention that further legislation is required for a No Deal Brexit.

1157: David Johnston QC considering EU Withdrawal Act. It empowers domestic law to reflect a Withdrawal Agreement. Argument that this sets out groundwork for withdrawal. He says that Petitioners have conceded that a No Deal Brexit would require further legislation so prorogation cannot facilitate a No Deal as it does not facilitate the legislation that is required.

1150: David Johnston QC considering the Claim of Right. Prorogation is a matter for the Crown then Parliament if it wants to regulate. No support that there would be a breach by prorogation as no requirement to be permanently in session under Claim of Right.

1146: further discussion on how Parliament could now legislate to regulate this prorogation.

1140: The Lord President asks how parliament can do that, in real terms? David Johnston QC says that the process of this weeks shows that parliament took control of its own agenda, and having done that, passed the Bill introduced this week, in order to ensure that the Prime Minister could not proceed with a no deal Brexit, unless certain conditions are satisfied.

1136: David Johnston QC says that parliament decides when it will sit, not the court. He says that the events of the last few days show that parliament is capable of moving at great speed, if it chooses to do so.

1135: David Johnston QC is now moving on to the academic nature of the challenge.

1134: David Johnston QC submits it would be remarkable if there were any difference in the reviewability of the advice, between the courts of England & Wales and Scotland.

1130: On behalf of the UK Government, David Johnston QC is now outlining his position on constitutional convention.

1129: David Johnston QC submits that the question the court must ask itself is – what is the subject matter being reviewed and is the court ill-equipped to review this? The prorogation is a matter of high policy.

1126: David Johnston QC is developing his submissions further, by reference to the case authorities, on when matters can be properly subject to review by the courts.

1124: David Johnston QC says there are other examples when parliament has chosen to regulate itself when it can be prorogued. These examples indicate that regulation of prorogation can be made by parliament, and has been made in the past, where parliament considers that appropriate.

1122: Where parliament wishes to regulate prorogation, it can do so, submits David Johnston QC, as they chose to do in the Northern Ireland (Executive Formation etc) Act 2019.

1121: David Johnston QC submits there is a mutuality of respect between the three pillars of the constitution. They should each not interfere with the powers of the others.

1120: David Johnston QC is now developing his submissions on separation of powers.

1119: Lord Brodie asks how the Act can be used in this argument, when it is not about the general issue of when the parliament will sit. David Johnston QC says that parliament has chosen when to sit, it is a matter for the parliament to regulate what it does.

1117: Lord Brodie is asking David Johnston QC about the relevance of the Northern Ireland (Executive Formation etc) Act 2019 argument. Parliament, when considering the Act, was dealing with a specific issue, not when it will sit, suggests Lord Brodie.

1115: David Johnston QC says that the present application is inviting the court to go beyond what parliament has determined for itself. That is not an invitation to which the courts should accede, says David Johnston QC.

1114: David Johnston QC is developing his submission on the relevance of the Northern Ireland (Executive Formation etc) Act 2019, which he says, expressly recognises the executive power to prorogue and expressly limits the power.  He submits that is how it is regulated: by statute and by parliament, when it wishes to preserve itself from prorogation at specific times.

1112: David Johnston QC maintains, in response to a question from Lord Drummond Young, that this matter is not suitable for the courts.

1111: David Johnston QC says there is no measure for the court to judge the length of a prorogation: there is no standard period.

1109: David Johnston QC says that prorogation can be taken to achieve intensely political aims. The intention in 1948 was as short a prorogation as possible to achieve the political aims of the day. There is no rule, he says, about how long prorogations should be.

1108: David Johnston QC is outlining a prior prorogation which happened in 1948 to the court, as an example.

1107: David Johnston QC is now turning to his argument that it is not possible to see how the court can decide prorogation is ok for five days, but not for ten days, for example. How would it know how much consideration should be given to the issues?

1105: Lord Drummond Young queries whether that is not a matter for parliament itself to determine, if allowed to sit.

1104: David Johnston QC submits that there are not any judicial standards by which this matter could be determined. The court is being asked to consider what is sufficient time and proper consideration? How is the court to determine that, asks David Johnston QC?

1102: Lord Drummond Young asks whether this is not about motive, but about reasons. David Johnston QC says this issue is very far from being justiciable.

1101: Lord Brodie asks whether one man’s political decision is another man’s low tricks: can the court intervene? This goes to the alleged impropriety of motive of the advice given, says David Johnston QC.  In his submission, the fact that the motive may have been alleged to be improper, does not make it improper advice. It is a matter of high policy.

1057: The Lord President asks whether, if the government prorogue parliament, for time to prepare for the Queen’s speech, the court cannot examine the reasonableness of that decision? But what happens where it is contended that is not the reason.  What is political and what is not political, asks the Lord President?  If the real reason was to stop debate on this issue, is that a political reason? David Johnston QC says yes.

1055: David Johnston QC says we are in the territory of political judgement. This should be left to the judgement of political leaders, not a court.

1054: David Johnston QC is now developing his submissions on the political context.

1053: David Johnston QC says that the subject matter, the circumstances in which it is used and the precise use of the power must be considered.

1052: Lord Drummond Young says that judicial review respects the fact that the court is not the primary decision-maker, but for that reason, the grounds of review are limited. His Lordship asks whether standard public law grounds of review can be used, taking due care to respect the primary decision-maker is the executive? David Johnston QC says yes, but it will depend on the precise power being reviewed.

1050: David Johnston QC says that the court is here to assess legal standards, not political issues.

1048: Lord Drummond Young asks whether a possible problem here for the UK Government’s submission is that prorogation may remove parliament’s ability to scrutinise matters and hold the government to account. David Johnston QC acknowledges that, but says that the courts should not intervene.

1046: By way of reminder, David Johnston QC represents the UK Government.  He says that the first instance court was concerned not to enter into this area, which is not justiciable, but political. It is not for the court to superimpose additional standards.

1045: David Johnston QC is continuing his submissions on justiciability.

1043: Counsel are ready and the judges resume their places on the bench: the Lord President (Lord Carloway), Lord Brodie and Lord Drummond Young are hearing the appeal.

Update, Friday 6 September 2019, 1024: Good morning once again from Court 1 in the Inner House of the Court of Session, Edinburgh.  The court is assembling and we expect proceedings to recommence again shortly after 10.30am.

1604: That ends proceedings for today. The Court will reconvene at 10.30am tomorrow.

1559: The Lord President orders the release of the Notes of Argument and the three documents extensively referred to in proceedings to be made available to the press. His Lordship states that this is to allow those following proceedings to fully understand matters and ensure that there is no error in relation to what the documents referred to say.

1559: Lord President explained that in a case where there is a written Note of Argument which is to be developed in oral submissions the Court would allow its release unless there was a particular reason not to. The bench briefly retire to consider the submissions.

1557: The Lord President states that there is a need to address the issue of whether the documents may be disclosed. David Johnston QC submits that he has, on a counsel to counsel basis, offered Kenny McBrearty QC a chance to see the Respondents’ Note of Argument.

1554: David Johnston QC submits that there are a wide range of views on the manner in which the country leaves the EU. Lord Brodie asks for clarification on this point. David Johnston QC submits that he will expand on this issue later in his submissions.

1549: Lord Drummond Young refers to a number of instances where there is an absence of judicial standards available to the Court. David Johnston QC submits that in those instances there are organisational standards which can be referred to and the Court may be assisted by expert evidence. He continues to submit that in this instance it is not possible to allow for a politician to give independent expert evidence.

1546: David Johnston QC refers to the case law discussing non justiciability. He that these provide a helpful summary of the reasons why issues are non justiciable because they are  political or there is an absence of judicial standards.

1542: David Johnston QC submits that the Court is not equipped to review the Order because there are no judicial standards. He submits this is because it is inherently a political matter.

1530: David Johnston QC for the UK Government commences his submissions. He seeks the refusal of the reclaiming motion for the reasons in the Respondent’s Note of Argument.

1527: James Mure QC submits that the mere fact that the Order in Council has an impact on the political sphere does not mean it is justiciable. He submits that it is the constitutional right of Parliament to sit, to legislate and to hold the Government to account. This function deserves the protection of the Courts and the Lord Ordinary’s decision leaves Parliament without this protection. James Mure QC submits that the Court should accept its constitutional role, apply the principles and standards of judicial review and drawing on the common understandings of the general purpose and customary duration of prorogation. He submits that departing from these understandings requires a compelling justification.

1525: James Mure QC clarifies his previous submission that the usual period of prorogation is under 10 days, as noted in a Cabinet memorandum dated 15 August 2019.

1522: Lord Drummond Young refers to the importance of proportionality as allowing the Court to go the merits of a decision. James Mure QC agrees with his Lordship.

1518: Lord Drummond Young raises the question of proportionality. Submissions are paused whilst the relevant papers are located.

1511: James Mure QC notes that the standard period for proroguing Parliament prior to a Queen’s speech is one to two weeks. He submits that the Court does have tools to consider the Government’s decision.

1504: James Mure QC submits that the Court should not relinquish its role in ensuring that decisions made by the Executive are properly justified.

1455: James Mure QC for the Lord Advocate commences a short oral submission.

1452: Aidan O’Neill QC submits that proroguing Parliament would mean that bills would fall, if they have not received royal assent before prorogation. Aidan O’Neill QC says that this would mean that they would have to restart their Parliamentary proceedings. Aidan O’Neill QC submits that even allowing prorogation for a short time would have a significant impact.

1449: The Lord President enquires what the benefit on this interim order would be given that the prorogation would be suspended as soon as judgment would be pronounced, if the court were so minded to rule that prorogation is indeed illegal?

1446: With that Aidan O’Neill QC concludes his submissions. Aidan O’Neill QC adds that he is stilling seeking interim interdict to suspend the prorogation order.

1443: Aidan O’Neill QC argues that the UK Government has therefore made an error in law when advising the QUeen in proroguing Parliament, thinking that it can leave the EU on a no deal basis.

1441: Aidan O’Neill QC submits that since we now know that the Article 50 notice can be withdrawn, Parliament did not consent to no deal when consenting to the triggering of Article 50 following the Miller case. Aidan O’Neill QC argues that Parliament would therefore need to pass a separate piece of legislation to allow the UK Government to leave on a no deal basis.

1436: Aidan O’Neill QC submits that the notification under Article 50, to which Parliament consented following the case of R (Miller) v Secretary of State for Exiting the European Union does not mean that Parliament consented to a no deal Brexit. Aidan O’Neill QC argues that following the case of Andy Wightman MSP and others v Secretary of State for Exiting the EU it is clear that the Article 50 notification can be withdrawn at any time. Aidan O’Neill QC submits that the judges in R (Miller) v Secretary of State for Exiting the European Union therefore erred when concluding that the triggering of Article 50 “is a bullet that cannot be withdrawn.”

1431: Aidan O’Neill QC argues that in the advice to the Queen to prorogue Parliament there was an error in law. Aidan O’Neill QC further submits that the error of law is that the government thinks that, as a matter of UK constitutional law, they can leave the EU without a deal. Aidan O’Neill QC submits that the government would need Parliamentary approval to do so, following R (Miller) v Secretary of State for Exiting the European Union.

1425: Aidan O’Neill QC argues that the way the UK Government has approached prorogation may be compliant with the Northern Ireland (Executive Formation etc) Act 2019. However, Aidan O’Neill QC also submits that this does not mean that the UK Government cannot be prevented from proroguing Parliament on any other ground.

1422: Aidan O’Neill QC submits that Parliament is to be prorogued on Monday the 9th of September. Lord Brodie enquires whether that it is Aidan O’Neill QC’s current position? Aidan O’Neill QC confirms that this is his understanding but that we will confirm this with the court in due course.

1420: Aidan O’Neill QC says that this week has already been taken over by Parliament trying to prevent prorogation. He argues that there was no time to discuss Brexit.

1415: Aidan O’Neill QC cites s. 13 of the European Union (Withdrawal) Act 2018, requiring parliamentary approval for the outcome of the negotiations with the EU. Aidan O’Neill QC submits that failing to negotiate a Withdrawal Agreement is an “outcome.” He argues that Parliament would therefore require to approve no deal.

1411: Aidan O’Neill QC submits that when looking at the documents provided by the UK Government it shows that the prorogation is being used to prevent Parliament to legislate on Brexit. Aidan O’Neill QC argues that prorogation is a pre-emptive action by the UK Government to curtail Parliament’s opportunity to have its say on this issue. It is, in his view, therefore the paramount obligation of the court to provide remedy against such use of prorogation.

1405: Aidan O’Neill QC argues that the reasons and justification given for the prorogation fail any proper scrutiny. He submits that the Government needs to show that the most compelling of arguments need to exist to prorogate Parliament at this time. Aidan O’Neill QC says that this needs to be seen against the backdrop of the profound impact of a no deal Brexit.

1402: Aidan O’Neill QC resumes his submission. He addresses the court on the timing of the adjustments by the UK Government. He submits that the final version of the plea-in law-was made on the 2 September 2019.

1400: The court resumes.

1351: Court 1 is beginning to gather, judges are expected back at 2pm.

1300: Court adjourns for lunch. Back at 2pm.

1253: Aidan O’Neill QC confirms to Lord Brodie that his position at the original Hearing was that he had not been given fair notice of the documentation now produced by the Respondent. However, given it was allowed by Lord Doherty, Aidan O’Neill QC now submits that the Court should examine the documentation forensically and, in particular, consider what may have been redacted and why.

1249: Aidan O’Neill QC says that the Prime Minister has refused to put his real reasons on the line by putting forward an affidavit before the Court. Therefore we have nothing under oath and so the Court can use it’s public knoweldge of the Prime Minister’s lack of care in relation to the telling of the truth, the whole truth and nothing but the truth, to draw adverse inferences.

1235: Aidan O’Neill QC refers to a redacted document dated 15 August 2019 in which the Prime Minister’s intention re prorogation is clear. On 23 August there is another document which reminds the Prime Minister that he had agreed to approach the Palace with a request for prorogation. A call with the Queen was set up for 27 August. On 28 August, the order of prorogation was made.  As at 27 August, the Respondent pleaded that there was no reasonable basis that there was any intention to prorogate and that the orders sought should be refused. Aidan O’Neill QC considers that is entirely misleading given the timeline he has set out.

1231:  Aidan O’Neill QC directs their Lordships to the paragraphs in the pleadings where it is alleged that the Petition is purely academic or hypothetical.

1224: The Lord President noted that in Scotland there is not a great tradition of witness evidence by way of witness statement or affidavit.   Aidan O’Neill QC acknowledged that but considered that the Prime Minister owed a duty of candour to the Scottish Courts as he would before the English Courts, where there is greater use of witness statements.

1222: Aidan O’Neill QC submits that at a time when this matter has been fully challenged it is for this Court to draw the most adverse inferences against the decision-maker on the basis the decision-maker shows a complete failure to come to Court and explain and justify its decision.

1218: Aidan O’Neill QC says that political spin has been applied by the Prime Minister and that he is deceiving himself. When suspending Parliament, spin is not enough, says Aidan O’Neill QC. There has to be legal and valid justification for it and nothing has been produced in support of that.

1214: Aidan O’Neill QC states that no evidence has been produced by the Respondent setting out the relevant facts by way of sworn affidavit.  In particular the Prime Minister himself has not provided a sworn affidavit setting out his decision and his reasoning behind the decision now challenged in the judicial review proceedings. Sworn evidence is non-existent. Those who have made the decision are unwilling to tell this Court why, submits Aidan O’Neill QC.

1206: Aidan O’Neill QC refers to R Sandiford v Foreign Secretary [2014] UKSC 44 in relation to the application of fettering discretion. Importantly, he considers that this case supports the Petitioner’s position as an affirmation of justiciability.

1202: Lord Brodie asks Aidan O’Neill QC whether the bench should adopt a less restrictive approach to the interpretation of the drafting of the The Claim of Right Act 1869.

1157: Aidan O’Neill QC says justiciability is completely established.

1154: Aidan O’Neill QC says that David Johnston QC misrepresented before the Lord Ordinary that R (Barclay) v Lord Chancellor (No 2) [2014] UKSC 41 is authority for non-justiciability. Mr O’Neill says that the opposite is true.

1150: Aidan O’Neill QC says that this is not the time to suspend Parliament. The suspension is to hide from Parliamentary accountability. It is an abuse of power and unlawful.

1146: Aidan O’Neill QC says that the UK Government does not have authority for the argument that the prorogative power to prorogue Parliament is not justiciable.

1144: Lord Brodie asks Aidan O’Neill QC whether he is saying that an exercise of prerogative power is always justiciable, or just this exercise of prerogative power. Aidan O’Neill QC says prerogative powers are justiciable, and that there is authority that the power to prorogate is justiciable. That power is being abused now, and abuse of prerogative power attracts the scrutiny of the Court.

1140: Lord Carloway says that the judges will need time to consider the appeal.

1138: The judges have returned.

1122: The Court has adjourned for a 15-minute break.

1119: Aidan O’Neill QC says that the prerogative are powers which Parliament has allowed for the time being to reside in the Executive. But that does not mean that they are not justiciable. The prerogative remains always subject to the law. For authority, Mr O’Neill refers to the case of Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508.

1116: Aidan O’Neill QC says that the point about the rule of law is that the law is all-pervasive and that all powers are subject to the law.

1114: Aidan O’Neill QC notes that Parliament has taken away from the Executive the power to dissolve Parliament.

1113: Aidan O’Neill QC says Parliamentary sovereignty means that Parliament decides who gets what powers.

1109: Aidan O’Neill QC says that the traditional that is more respectful of the rule of law, and more clearly sets out the rules on democratic accountability, is to be preferred.

1107: Lord Carloway remarks that Aidan O’Neill QC has given has somewhat romanticised account of the separate Scottish constitutional tradition.

1103: Aidan O’Neill QC says that the model of the Church and State in England was different: more top-down.

1102: Referring to the history of Scottish presbyterianism, and its historic effect on the philosophy of the State, Aidan O’Neill QC says that power resides in the people and is given in limited fashion to the State.

1056: Aidan O’Neill QC is referring to a pre-action letter sent by the petitioners to the Advocate General, which sets out some of this distinctive history.

1053: Aidan O’Neill QC says there is a distinctive Scottish constitutional tradition.

1052: Aidan O’Neill QC explains that the Claim of Right is in force. The court must interpret and apply it in the circumstances of this case.

1051: The Stewart Kings used prorogation when politics became too sensitive, explains Aidan O’Neill QC.

1050: Aidan O’Neill QC says this is an unprecedented situation. Never before has the power of prorogation been used in the way it is today. The only other period in which it was used abusively, Aidan O’Neill QC says, was in the late 17th century.

1049: Aidan O’Neill QC says that this is the essence of judicial review – to tell the executive they have it wrong.

1046: Aidan O’Neill QC says that the role of this court is to ensure that the balance of power is maintained among the three pillars of the state: the executive, the legislative and the courts.  The courts can be the only umpires on this point.

1044: Aidan O’Neill QC says that in our constitution – characterised not just by the rule of law, but by the sovereignty of parliament – this power must only be exercised for good and proper reason, at a proper time, and only for the shortest period possible.  Otherwise, there is no sovereignty of parliament, but sovereignty of the executive.

1042: Aidan O’Neill QC says that this was an abdication of the constitutional function of this court, to ensure that the rule of law is maintained.

1041: Aidan O’Neill QC submits that the Lord Ordinary made an error of law in holding that this matter was not justiciable.

1040: Aidan O’Neill QC says that the English Millar case also relies on the Claim of Right, which he says outlaws the abuse of the power of prorogation.  He says that the courts will recognise an abuse of the power when they see it.

1038: Aidan O’Neill QC submits that if there is any delay, it is open to the courts to make a mandatory order to require the executive, being subject to the law, to pass that Bill forward for Royal Assent to be given.

1037: Aidan O’Neill QC is taking the court to the legal authorities on the matter of recommendation of Royal Assent.

1036: This means, Aidan O’Neill QC says, that the executive is under a legal duty to submit for Royal Assent any bill which has passed through parliament.  If the executive fails, refuses or delays to put any such bill forward for Royal Assent, the courts can and must intervene.

1035: Aidan O’Neill QC says that there is no “Etonian” rule in this country.  No matter which school you went to, or your background, all are subject to the law and are entitled to its protection.  Equality before the law is fundamental.

1034: Aidan O’Neill QC says that the petitioners are keen that the hearing concludes today.  He adopts his written Note of Argument.

1033: The Lord President observes it looks increasingly unlikely that the appeal hearing will be concluded today.

1032: The Lord President states that the court is concerned that it has had little time to consider the documents and is unable to gather, at the moment, where the documents fit into the hearing overall.  The court will therefore consider this at the end of the arguments.  The court is conscious of the need for open justice.  There is no difficulty in the media having access to the pleadings: no order is required in respect of these documents.  So far as the cabinet documents are concerned, the court does not know the precise context of the documents: it will delay making a decision on this until the end of today’s proceedings.

1030: The judges return to give their decision on the application.

1025: The three judges are considering their decision on the BBC, Times and Scottish Sun’s application.

1024: Kenny McBrearty QC says that the submission about the impeding of government business is unpersuasive.  This is a highly unusual case and the UK Government itself lodged the documents.  The principle of open justice, plainly, outweighs other considerations in the balancing exercise, he submits.

1022: Kenny McBrearty QC submits that the question of whether the material is relevant is of no consequence.  If the documents were referred to in open court, the public ought to be able to understand them and their context.

1021: Kenny McBrearty QC says that the principle of open justice is intended to permit scrutiny of the court itself and allow an understanding of the court process.  The public interest is not about what is relevant to the court’s decision, but the manner in which the court proceedings are conducted and what is said in open court. The public should be able to understand, irrespective of what documents are relevant to the court’s decision.

1019: Andrew Webster QC sets out that the Cabinet Minutes contains matters which are confidential.  The petition has been refused because it is not justiciable.  Even if open justice would be met by providing these documents to the public, if the Lord Ordinary has concluded they are not relevant, that goes against their release.

1016: Andrew Webster QC, for the UK Government, is addressing the Court on this matter.

1015: Kenny McBrearty QC says that a balancing exercise is required by the court on this matter.

1014: Kenny McBrearty QC outlines the authorities in this area, which are set out in his Note of Argument.

1013: Kenny McBrearty QC says that the principle of open justice means that the public need to understand the arguments being made in court.

1012: Kenny McBrearty QC says that the media need full access to the documents, in order to accurately report.

1011: Kenny McBrearty QC explains that the BBC live stream of the first instance proceedings received 1.2 million hits from the public.  He says that the public ought to be able to understand the proceedings, through access to the documents, given the great public interest in this case.

1010: His application relates to a discrete issue. The publishers wish access to the documents, the pleadings as adjusted and the intervention by the Lord Advocate.  Kenny McBrearty QC explains that the UK Government did not voluntarily agree to their release.  He says that the open justice principle means that the public must understand the issues and the arguments, through reporting by the media.

1008: Kenny McBrearty QC explains that he is now instructed not only by the BBC, but also by the Times and the Scottish Sun.

1007: David Johnston QC says he has seen the documents and considers the redactions have been properly applied. In any event, the documents were in this state before the Lord Ordinary at first instance.

1006: David Johnston QC says that the Cabinet Minutes would raise a difficulty, in terms of the normal operation of government, if they required to be unredacted.

1004: David Johnston QC, on behalf of the UK Government, submits that the UK Government produced these documents, in order to comply with its duty of candour.

1003: David Johnston QC, on behalf of the UK Government, submits that the material produced is the same as that in the Gina Millar case before the English courts.

1002: The Lord President notes that a summar roll hearing, such as this, would ordinarily proceed on the basis of the documents as before the Lord Ordinary at first instance.

1001: Aidan O’Neill QC says the UK Government should be ordered to produce the documents in unredacted form – fairness requires this, he says.

1000: Aidan O’Neill QC is setting out the House of Lords decision in the matter of Somerville v Scottish Ministers [2007] UKHL 44, which concerned, among other matters, the heavy redaction of documents by ministers.

0955: Aidan O’Neill QC is setting out the scope of the Scots law on this issue.

0952: Petitioners’ Senior Counsel, Aidan O’Neill QC, says that the documents have been produced by the UK Government in support of their arguments, but they are selective parts of the documents to suit their case. He says they are hiding other parts for the documents, for reasons unknown. He submits there has been a waiver of privilege.

0950: Aidan O’Neill QC, for the petitioners, is outlining the key Scottish legal authorities on this matter.

0948: Aidan O’Neill QC’s position is that the UK Government, having put these documents in to the proceedings, cannot now come to this court with edited documents, being “edited highlights”. Aidan O’Neill QC says this is a breach of the principles of open justice.

0946: Aidan O’Neill QC says that parts of the exhibits are redacted out and we cannot tell what these parts of the exhibits say.

0945: Aidan O’Neill QC is setting out the contents of the various exhibits.

0940: Aidan O’Neill QC draws the judges’ attention to redactions in the documents.

0938: Aidan O’Neill QC sets out the documents are exhibits to a witness statement lodged in the case brought in England by Gina Millar, which is being heard today.

0935: Aidan O’Neill QC explains documents were lodged late by the UK Government.

0934: Aidan O’Neill QC is setting out the timetable proposed for today. There will be a preliminary matter moved by the BBC concerning access to documents.

0932: The judges hearing the appeal today are the Lord President (Lord Carloway), Lord Drummond Young and Lord Brodie.

0927: Court 1 is assembling. Aidan O’Neill QC, ably assisted by his junior counsel, David Welsh, are both here again for the Petitioners.  The Lord Advocate is represented today by James Mure QC and Christine O’Neill.  The BBC are represented by Kenny McBrearty QC. David Johnston QC and Andrew Webster are here again today for the UK Government.

0848: Good morning from Edinburgh, as the reclaiming motion (appeal hearing) in the Cherry judicial review starts today before the Inner House of the Court of Session.

To recap, Joanna Cherry QC MP and others sought judicial review of the UK Government’s ability to prorogue the UK Parliament.  Last week, an urgent application for interim orders was brought, following the Queen’s signing of an Order in Council authorising the prorogation.  That motion for interim orders was refused by Lord Doherty last week and the petition for judicial review itself was refused yesterday, which is the decision now reclaimed (appealed) against.

Separate challenges in the other jurisdictions of the UK have now also been launched. Raymond McCord, a high-profile victims’ rights campaigner, has brought proceedings before the Courts of Northern Ireland, with a hearing fixed for Friday 6 September 2019. In England & Wales, Gina Millar, the businesswoman who brought the UK Supreme Court appeal of R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 has also commenced proceedings, with a hearing fixed for today, Thursday 5 September 2019. Applications to intervene in the Millar English proceedings have been made by Sir John Major, the former Prime Minister of the UK, the shadow Attorney General Shami Chakrabarti, the Scottish Government and the Welsh Government. Observers might wonder whether, by the time these three cases might reach the UK Supreme Court, they will be conjoined as one. Meanwhile, media reports suggest that the UK Supreme Court has provisionally reserved Tuesday 17 September 2019 to hear any appeals arising from these proceedings.

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