The three-day hearing to resolve contradictory judgments made by Scottish and English courts (on the Prime Minister’s decision to prorogue Parliament for five weeks) started on Tuesday. Here, Tod Davies picks up on the marvellous tale of Day 2 following on from Nicola’s coverage of Day 1.
Day one was all about the English case, with Gina Miller’s champion (Lord Pannick QC) squaring off against the Government’s chosen champion (Lord Keen QC) in a re-run of the High Court case which the Government won last week. Wednesday was the run of Scotland, with the Government’s Sir James Eadie QC facing down the challenger, the punchy Aidan O’Neill QC, representing Joanna Cherry of the Scottish National Party. The lower court in Scotland reached the opposite decision to the lower court in England, continuing the neat symmetry of this case.
Day 2 – much like those glorious sequels of Terminator 2, The Godfather: Part II, or Lord of the Rings: The Two Towers – was filled with memorable moments. We saw Supreme Court Justices giving some banter to the Scottish advocates about England’s 1966 world cup, we heard elaborate metaphors of a house burning down, and an in-depth analysis of the iconography of the Supreme Court’s logo (it’s a rose, a thistle, leek leaves and a flax flower by the way…).
Wednesday, it wasn’t the challenger Aidan O’Neill (AON) who went first, but the Government’s lawyer, who argued (in similar fashion to Lord Keen on Tuesday) how the decision to suspend Parliament was not something a court of law could rule on, as it existed squarely within the political arena. If the courts started setting rules as to when a politician may or may not prorogue Parliament, or set restrictions on his reasons for doing it, or set limitations for how long he could do it, then clearly this would upset the separation of powers in this country, which provides the necessary checks and balances.
But this argument was shot down by one of the Justices, who queried who, in a universe where the courts have no say over Parliamentary matters, and Parliament is prorogued (perhaps for a long period…), who would then provide the check and balance to the Government? The answer was the rather unconvincing – oh well, Parliament could have legislated to stop the prorogation before they ran out of time, but instead chose to push through a no-deal Brexit Act. This prompted, by response, the burning house metaphor, with AON stating, “It’s like an arsonist has come into your house and the fire is raging in the kitchen, and you try and put it out in the kitchen, and then they say: ‘yeah you didn’t do anything in the living room, so you must have consented to it being burnt down’.”
AON also focused on how the Scottish Court reached its decision that Boris’s prorogation of Parliament was unlawful because – partly – it had the advantage of being in Scotland, far from the clamour of the Westminster bubble where people could think clearly.
Day 2 was in many ways a re-run of the arguments made on Day 1, all be it from a Scottish perspective, and perhaps with a more Britain-as-whole outlook, with more non-legal points made than I’ve ever seen made in a court. AON spoke of the British imprint in the Supreme Court Seal, the layout of the institutions of Westminster, and the history of these mighty isles from 1066 to 1966.
The day finished up with AON providing a punchline worthy of Don Corleone: “Don’t allow the mother of parliaments to be shut down by the father of lies!”.
The final day, we will hear from the interveners (a Marvel style all-star cast of the Lord Advocate, former PM Sir John Major, Labour’s shadow Attorney General Shami Chakrabarti, the Welsh Government, a Northern Irish rights campaigner, and the Public Law Project) as well as the replies from Day 1’s superheroes and villains, Lord Pannick and Lord Keen.
P.S. in a Marvel universe style epilogue…. today also saw the full publication of a (partly confidential) handwritten note by Boris himself regarding the decision to prorogue. The offending words written by Boris which the Government saw fit to have classified? “That girly swot Cameron”.