Brexit: The Franchise – Day 3 of the Supreme Court hearing

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Day 3 saw the cameo performances of the interveners, making short(ish) submissions to the court in addition to the main battles of Day 1: Pannick vs Keen, and Day 2: Eadie vs the EON. The star-studded list of interveners comprised of the Lord Advocate for Scotland, 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. Each were represented by their own Q.C., each putting their own spin on why the prorogation is unlawful, adding more and more force to the proverbial sledgehammer brought down on the Boris. The Avengers had assembled. The ranks included Lord Garnier Q.C. (making it a record three Lords addressing a court as advocates rather than judges), and a further three Q.Cs, including Mike Fordham Q.C. for the Welsh Government, described by one commentator as the ‘Ubergeek’ – maybe the only barrister to have read and considered every single judicial review case, ever.

In a final showdown, Pannick had the final words over Keen (or ‘right of reply’ in legal speak). During the closing submission of Lord Pannick, the Justices asked him what would happen if they declared that the advice given by Boris to the Queen was, after all, unlawful. Technically, as prime minster, Boris is the one who recalls Parliament, which makes things awkward. Do we just wait for Boris to recall Parliament, and what if he doesn’t? Or are the Speakers of the Commons and Lords allowed to summon MPs and peers back to Parliament despite what Boris does? What is to stop Boris from simply recalling Parliament then immediately proroguing it again? Like the council of Elrond discussing what to do with the One Ring, it was clear from the discussion that no one really knew the answers to these questions.  This is not surprising – we are in unfamiliar territory armed with an unwritten constitution, which is based for the most part on convention. If we had a written constitution, like the USA, it would simply spell out that a two-week prorogation is fine and that a five-week prorogation isn’t; but we are not, and we do not. The Doc’s words in Back to the Future ring true of our framework; Written constitution? Where we’re going, we don’t need a written constitution.

Pannick, on behalf of the challengers led by Gina Miller, pulled out all the tricks in order to alleviate the fears of the Justices that they might be interfering with the separation of powers. Judges are inherently unwilling to veer into any political decision – this is why ‘justiciability’ was the key theme throughout these proceedings. We saw this when one of the interveners strayed too far into simply complaining about Brexit rather than concentrating on the legal issues – and got a huge telling off from the Justices as result, who told him his submissions were “completely irrelevant to the legal questions“. When he persevered on the same line, he was told, with the same clout as the single shot of whiskey that floors Doc, “don’t abuse our politeness”. Ouch.

Pannick was aware of this and did his best to try, like the human torch, to illuminate a way forward for the Justices which involved the least amount of interference with the political realm. He assured them that he didn’t want them to design new complex rules on prorogation, or force commitments on the PM, or indeed find that there was ‘malign’ intent by the PM. This wasn’t the constitutional equivalent of an Iron Man suit. He argued that a simple legal declaration of unlawfulness would be enough for the Speakers of the Commons and Lords to know what to do next politically – and keep the Justices out of politics. Like Thor, he then hammered home the point on separation of powers too, saying that making that declaration and bringing the prorogation to an end would ensure that the Government cannot separate itself from Parliamentary scrutiny anymore, which would help protect the separation of powers. This was clearly a matter of crucial importance for the Justices – Much like Bruce Wayne’s return to Gotham as Batman for the first time, they must feel like they have the authority to interfere.

Tenaciously taking the complete opposite tack, was Lord Keen for the Government, who continued to argue that the suspension of Parliament was a political matter. He said that prorogation was “forbidden territory, which is a matter between the executive and Parliament“, and that MPs “had the tools” to change the law if they did not like it – it is simply not a matter for the courts to interfere with.

At the close of play, the President of the Supreme Court, Lady Hale, summed up the three days of historic debate by saying “None of this is easy” and that the Court would endeavour to provide its full judgment “as soon as humanely possible”, which she hoped would be early next week – the future, it seems, has not yet been written.