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Brexit: Boris Johnson can't be trusted not to engage in 'low, dishonest, dirty tricks', supreme court told – live news Brexit: Boris Johnson can't be trusted not to engage in 'low, dishonest, dirty tricks', supreme court told – live news
(38 minutes later)
O’Neill is winding up now.
I say to this court ... stand up for the truth, stand up for reason, stand up for unity in diversity, stand up for parliament, stand up for democracy by dismissing this government’s appeal and uphold a constitution governed by laws and not the passing whims of men.
We’ve got hear the mother of parliaments being shut down by the father of lies. Rather than allowing lies to triumph, listen to the angels of your better nature and rule that this prorogation is unlawful and an abuse of power which has been entrusted to the government.
This government is showing itself unworthy of our trust as it uses the powers of its office in a manner that is corrosive of the constitution and destructive of the system of parliamentary representative democracy on which our union polity is founded.
Enough is enough. Dismiss this appeal, and let them know that. That’s what truth speaking to power sounds like.
The court adjourns until tomorrow.
O’Neill says you cannot say that, just because MPs did not pass legislation blocking prorogation in September, that means the consented to prorogation.
O’Neill says the traditional Scottish approach is that it does not matter how high you are, even if you are the King himself, you can be called before the courts. That is why James VI was so keen to leave Scotland, he says.
O’Neill says people knew that the government was planning a five-week prorogation “because we read the Observer”. He was referring to Toby Helm’s splash about what the government intended to do.
O’Neill addresses the argument that prorogation is non-justiciable because of the Bill of Rights, which prevents the courts interfering with parliamentary process. He says that argument is a complete misunderstanding of the Bill of Rights, which was about protecting the rights of parliamentarians.
As MLex’s Matthew Holehouse points out, in his written submission to the supreme court (pdf), O’Neill says the government was responsible for the leak that revealed Boris Johnson had called David Cameron a “girly swot” in a line in a document originally retracted.
O’Neill also claims that the leak highlights Johnson’s willingness to abuse power.
Who leaked the 'girly swot' memo?According to Aidan O'Neill for Cherry, the government did. It shows the PM had a "vendetta" against Cameron, shows how his power is "being abused" -- and therefore the rest of the redactions to the de Costa memo aren't necessarily justified. pic.twitter.com/TmTIIPTR9T
O’Neill said it would not be acceptable to have a situation where prorogation can be used for improper purposes.
The length of the prorogation is not the issue, he says. What matters is its purpose.
O’Neill says the supreme court must intervene to rebalance the constitution.
Earlier O’Neill said the documents submitted by the government to the court - the memo to the prime minister on prorogation, dated 15 August, and the PM’s handwritten response of the next day – showed that “the true dominant purpose of prorogation was, as the inner house [the senior part of Scotland’s court of session], correctly observed, to stymie parliamentary scrutiny of the executive regarding Brexit”.
He added:
Lying (albeit wholly unconvincingly) about the true reasons for exercising the prorogation power in the manner, at the time and for the period it has been exercised in this case, calls into question the lawfulness of the executive’s action.
O’Neill says the court should not treat the documents submitted to the court by the government about the reasons for prorogation as “gospel” or the “complete truth”.O’Neill says the court should not treat the documents submitted to the court by the government about the reasons for prorogation as “gospel” or the “complete truth”.
He also suggests that the document may have been written to provide “cover”, in the knowledge that a court might demand to see it.He also suggests that the document may have been written to provide “cover”, in the knowledge that a court might demand to see it.
Lord Reed says he is “looking sceptical about that suggestion”.Lord Reed says he is “looking sceptical about that suggestion”.
O’Neill replies:O’Neill replies:
There is no reason to look sceptical. You can look upset. The fact is: read the documentation, and it says: ‘We know this will potentially cause us a challenge.’ We have no affidavit that says this is true and complete. An affidavit would say this is the truth, the whole truth and nothing but the truth. One might not think that a government would engage solely in high politics as opposed to low, dishonest, dirty tricks. But I’m not sure we can assume that of this government, given the attitude that has been taken publicly by its advisers and by the prime minister himself to the notion of rule of law. So look perturbed, look upset, but don’t look sceptical. Look at the documentation.There is no reason to look sceptical. You can look upset. The fact is: read the documentation, and it says: ‘We know this will potentially cause us a challenge.’ We have no affidavit that says this is true and complete. An affidavit would say this is the truth, the whole truth and nothing but the truth. One might not think that a government would engage solely in high politics as opposed to low, dishonest, dirty tricks. But I’m not sure we can assume that of this government, given the attitude that has been taken publicly by its advisers and by the prime minister himself to the notion of rule of law. So look perturbed, look upset, but don’t look sceptical. Look at the documentation.
At this point O’Neill bangs his hand on the table.At this point O’Neill bangs his hand on the table.
O’Neill is now talking about the memo sent to Boris Johnson by Nikki da Costa proposing the long prorogation. (Some of the text is here.)O’Neill is now talking about the memo sent to Boris Johnson by Nikki da Costa proposing the long prorogation. (Some of the text is here.)
And he refers to Boris Johnson’s reply. Johnson backed the plan, writing:And he refers to Boris Johnson’s reply. Johnson backed the plan, writing:
1. The whole September session is a rigmarole introduced by girly swot Cameron to show the public that MPs were earning their crust1. The whole September session is a rigmarole introduced by girly swot Cameron to show the public that MPs were earning their crust
2. So I don’t see anything especially shocking about this prorogation2. So I don’t see anything especially shocking about this prorogation
3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few.3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few.
O’Neill says he cannot understand why the words “by girly swot Cameron” were redacted in the documents originally released to the court. He suggests there was no valid reason for this.O’Neill says he cannot understand why the words “by girly swot Cameron” were redacted in the documents originally released to the court. He suggests there was no valid reason for this.
O’Neill is now talking about the government’s failure to provide a witness statement.O’Neill is now talking about the government’s failure to provide a witness statement.
He cites the judgment in Das v home secretary. This is included in the Cherry team’s legal submission (pdf). The Das judgment said:He cites the judgment in Das v home secretary. This is included in the Cherry team’s legal submission (pdf). The Das judgment said:
Where a secretary of state fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party … The basis for drawing adverse inferences of fact against the secretary of state in judicial review proceedings will be particularly strong, because in such proceedings the secretary of state is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, [in the words of Lord Walker of Gestingthorpe in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] Env LR 761 [para 86] ‘to cooperate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings’.Where a secretary of state fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party … The basis for drawing adverse inferences of fact against the secretary of state in judicial review proceedings will be particularly strong, because in such proceedings the secretary of state is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, [in the words of Lord Walker of Gestingthorpe in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] Env LR 761 [para 86] ‘to cooperate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings’.
O’Neill says there was a “cunning” change in what the government decided to do.O’Neill says there was a “cunning” change in what the government decided to do.
Instead of proroguing parliament over 31 October, it decided to prorogue parliament earlier.Instead of proroguing parliament over 31 October, it decided to prorogue parliament earlier.
He says the decision to prorogue parliament between 9 September and 14 October fits with the government seeking the longest possible prorogation consistent with the Northern Ireland (Executive Formation) Act, which included requirements for the government to report to parliament on developments in Northern Ireland.He says the decision to prorogue parliament between 9 September and 14 October fits with the government seeking the longest possible prorogation consistent with the Northern Ireland (Executive Formation) Act, which included requirements for the government to report to parliament on developments in Northern Ireland.
Here is O’Neill on why the PM’s lengthy prorogation of parliament was so serious.Here is O’Neill on why the PM’s lengthy prorogation of parliament was so serious.
It appears that the prime minister’s actions in proroguing parliament has had the intent and effect of preventing parliament, impeding parliament, from holding the government politically to account at a time when the government is taking decisions which will have constitutional and irreversible impacts on our country.It appears that the prime minister’s actions in proroguing parliament has had the intent and effect of preventing parliament, impeding parliament, from holding the government politically to account at a time when the government is taking decisions which will have constitutional and irreversible impacts on our country.
That fundamentally alters the balance of our constitution because it is using the power to allow the executive to govern ... at this crucial time and all without the proper constitutional accountability.That fundamentally alters the balance of our constitution because it is using the power to allow the executive to govern ... at this crucial time and all without the proper constitutional accountability.
O’Neill says what matters is the principle of the PM being allowed to prorogue parliament in this way.
The amount of time lost is not relevant.
The government has argued that only seven days were lost to MPs. But O’Neill says the Benn bill, designed to stop a no-deal Brexit on 31 October, was passed in just three days. That shows how much might be achieved in seven days.
Here is the lawyer and legal blogger Adam Wagner on what O’Neill is up to.
O'Neill knows that not all the Supreme Court Justices will like this. But he is speaking to the people watching too (playing to the gallery, but in a good way) - and is saying to the court 'you must understand, and take seriously, your place in our country's politics and history'
O’Neill refers to the Sandiford case. This was a case where the supreme court rejected a challenge to the government’s refusal to use prerogative powers to fund the legal costs to defend a British woman facing the death penalty in Indonesia on drugs charges. He says this was not the court’s finest hour. Lady Hale says O’Neill knows how to make friends.
Sandiford is relevant to this case because it is about prerogative powers. As the legal submission from Joanna Cherry’s team (pdf) explains, the court of appeal ruled in Sandiford that in some circumstances prerogative decisions are justiciable. The submission says:
The court of appeal held that, although the Foreign Office’s discretion as to exercise of its prerogative powers in such a case was ‘a very wide one’ and although ‘the court cannot enter the forbidden areas, including decisions affecting foreign policy’, there was ‘no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation.
O’Neill is now turning to the legal issues at stake in the case.
He says the term prerogative powers applies to a collection of random powers.
He says simply by calling something prerogative, that does not give you any analytical heft. The powers exercised under the prerogative do not have much to do with each other.
O’Neill is now talking about Parliament Square, and what the various statues erected there say about history.
And he is talking about the buildings too.
Mr O’Neill describes the court’s location: Behind us, Parliament; the right, Westminster Abbey, the church; the left, buildings of government. Four pillars of the state. Parliament to legislate, Church to pontificate [build bridges], government to regulate, judges to adjudicate
From the BBC’s Dominic Casciani
Aidan O'Neill has even gone down the road of The Battle of Bannockburn, 1314, when the Scots beat the English. James Eadie QC, for the PM, sitting to Mr O'Neill's immediate right, looks unimpressed. pic.twitter.com/vAEfpCAQu7
O’Neill says he will be talking about Scottish law.
But he says he wanted to make the point about four nations because this is not a union state. It is a state of nations.
He turns to Macbeth. It is often described as the Scottish play. But it is the British play, written to explain what was happening when a new court, the court of King James (James VI of Scotland, but James I of England), was taking over.
Here is the carpet on the floor of the supreme court that O’Neill was referring to. (See 2.15pm.)
Before getting into the meat of the legal argument, O’Neill is giving a wonderful speech about history, and emblems.
He points out that the decoration on the carpet of the supreme court includes the emblems of all four nations of the UK. It makes a point about how their traditions are combined, he says.
Aidan O’Neill QC has started addressing the supreme court. He will be speaking for the next two hours. He is representing Joanna Cherry and the other parliamentarians who took the case to the Scottish court of session, where they successfully argued that prorogation was unlawful.
He starts by saying that he is the first lawyer to address the court in this case who does not have a title. We have already heard from Lord Pannick, Lord Keen and Sir James Eadie.
O’Neill is a Scot (and a “double silk” – a QC at the English and Scottish bar). He says that one of the advantages of the court of session in Edinburgh is that distance from London gives a sense of perspective. He says political machinations look very different 400 miles away from London.