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tv   Afternoon Live  BBC News  September 18, 2019 2:00pm-5:00pm BST

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wnw—um ”h ‘w ”nut ur would stop parliament from sitting, from taking important decisions at a crucial time? there is very little time to actually take those decisions will there was a discussion as to whether that would limit parliament. that is an important thing and it is the job of the court to defend parliamentary sovereignty, to defend these principles. i think there is a space for us to think carefully about whether the provocation does undermine fundamental principles of out undermine fundamental principles of our constitution. —— prorogation. professor chris forsyth, is all of this because we don't have a written constitution and in a way we are stress testing the constitution we have between the government, the parliament and the courts? we are certainly stress testing the parliament and the constitution that we do have, and it's really been broken to destruction, i think, in some ways. it remains to be seen how things work out, but the fixed—term parliaments act is causing huge problems, the problem of prorogation
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is causing huge problems, so, yes, oui’ is causing huge problems, so, yes, our constitution is being stress tested by the necessity to proceed with brexit. do you agree with that, alison, and if it is being tested, almost to destruction, what do we need to do about that? is that something the supreme court is going to address this week, potentially?|i do to address this week, potentially?” do accept that it is being tested, andi do accept that it is being tested, and i think it is because you are in and i think it is because you are in a very difficult situation, you have an issue that is very divisive, very strong opinions on both sides, and you have a strict time limit set out by the legal requirements of the european union, so i can see the pressure, but at the same time if you are going to start thinking about a new written constitution, you need to think very carefully about what those principles should be and how they should work, and i don't think that is a job for the supreme court, think it is a job for parliament and for the country at large to think about what the constitution should be if we going to think about rewriting it. thank you very much, professor chris
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forsyth, also from the think tank the policy exchange, the centre—right think tank, and alison young from cambridge. we are going to go back and now, because inside the supreme court, we are going to have aidan o'neill, qc, who is arguing in behalf of the scottish challenges to the prorogation of parliament, and that is against the appeal made by the government. you will remember the court of session in edinburgh decided what the government had done, the prime minister had done, was unlawful, and attempt to stymie and frustrate parliament in the brexit debate. the government is challenging that, aidan o'neill is arguing against the government, saying that court got it right, that boris johnson government, saying that court got it right, that borisjohnson did act unlawfully. let's listen to his case. distance lends perspective, lends discernment. sometimes it might lend disenchantment. so what i
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would say, in general terms, is that one of the advantages which the inner house had in this case, which the divisional court did not is precisely that of distance. what this means is that this court and this means is that this court and this appeal has had the advantage of a view from the periphery. what all of this heated debate, political machinations looks like from 400 miles away, farfrom machinations looks like from 400 miles away, far from the fever and excitement of the nation plasma capital, outside the westminster bubble, albeit as appears from sometimes from some comments from
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press and some less informed parliamentarians that the decision is from a country of which we know less and care little, but distance is important. we know, for example, that the constitutional court in germany, it sits not in berlin, nor in frankfurt, the political and financial capitals, but in the sleepy town of karlsruhe her, because it is thought important in the structure of the constitutional court that one has that possibility of getting a sense of distance, of gaining a sense of perspective from everyday politics, and of course this court knows that. this court goes on circuit, this court sits throughout the union in edinburgh, cardiff, belfast, as well as in london. the other advantages we know
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from distance, perspective, is the positive aspect, which is played in oui’ positive aspect, which is played in our system by the fact that we have judgments coming from the european court of human rights in strasbourg, and also from the court ofjustice of the european union in luxembourg, and sometimes those judgments give us new and sometimes those judgments give us new perspectives, challenge our presuppositions, make us think again about what things look like from the outside, gives us a chance to see ourselves as others see us. now of course in many cases, this court as pa rt course in many cases, this court as part of its devolution has taken cases from scotland, notably, in
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which they have been challenges made to primary legislation coming from the scottish parliament, and the interesting thing about that is first of all there is already a full constitutional judicial first of all there is already a full constitutionaljudicial review in the american sense of this court, and of the scottish courts, that they are used to dealing with challenges, which look to and require evidence on an assessment of the proportionality, for example, of primary legislation. the assessment of the irrationality of policy choices that have been made. and this court has in a number of occasions said that some legislation, which has proceeded, after full policy debate, after a full democratic backing from a parliament in scotland, this court
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has said, well, actually, looking at it dispassionately from a distance, acting as a constitutional court, we see that that judgment was wrong. acting as a constitutional court, we see that thatjudgment was wrong. it happened, of course, in the named person's case, which a number of the members of this court sat, as well as in legislation relating to sex offenders and the possibility of a difference due to lack of knowledge of sexual partners's age. now those cases, those two cases i mentioned in passing interestingly this court overturned the position that had been taken in the courts in scotland. but in a sense, this case may be seen as the inner house returning the favour which this
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court has previously given. it is giving for this court a more dispassionate view, a more distance view, a better perspective on the issues which have arisen, so i commend the approach, which was taken by the inner house, the judgments via a careful rereading, bya judgments via a careful rereading, by a measured death they are measured and proper, and they are a court, acting to protect the constitution, and ultimately that is the rule of this court. again, by way of preliminary points, one thing is a reason i want to underline, is perhaps the importance
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of history. now, as we know, in england it is sometimes said the pastis england it is sometimes said the past is another country, they do things differently there. but sometimes in scotland, and i suspect ireland and wales, the past isn't even passed, its ireland and wales, the past isn't even passed, it's here and now. for example, when the parliament was proved by the lord's commissioner, coming in and summoning the house of commons, to hear the reading out of the prorogation order, a number of mps stayed behind. a number of the scottish ones, as i understand it, started then singing scots were hey. that's slightly odd, you would think, singing a song about a battle in 1314, penned by robert burns,
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singing a song about a history written in tears and blood, but the fa ct written in tears and blood, but the fact is it was the first thing that people reached for. history is important. now, sometimes it appears from my practice down here in england that the only two dates that are significant in english history are significant in english history are 1066 and 1966, and there is a bit of a gap in the 900 years. you might have to explain why 1966 was might have to explain why1966 was so important. particularly to the scots. indeed, i know nothing of that year, i was only five. but there it is. there is of course the other resonant historical memory, the second world war, lots of
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implications of churchill and the dunkirk spirit, the battle of britain, we note that when during the conservative leadership election, when the idea of prorogation of parliament by whomever was going to be the successful leadership winner of the battle, when that was being mooted, i think one of the candidates, matt hancock, suggested that his father hadn't landed on the normandy beaches on d—day to allow things like prorogation of parliament to ta ke like prorogation of parliament to take place. i very much doubt that was one of the first things on his mind, but what is important from this is, seeing things notjust in distance but the physical distance, however constitution will develop and will develop, rather than
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concentrate necessarily on the immediacy of the particular mecca nations that have gone on in this case “— nations that have gone on in this case —— "la longue duree". the third preliminary point i want to make is about symbolism. this court is very conscious of the symbolism in its creation. i look down, there is a carpet. this is not a commentary on soft furnishing. what it is, however, is it notices what's being said. symbols speak, emblems are a reason. and what we have before us isa reason. and what we have before us is a court which picks out four national emblems, a flax, a thistle, a rose and a leek, and it keeps on
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maintaining that motif, from the banner over there we see it again. we see the flax, the thistle, the rose and the leek embraced in an omega, the last instance. embraced ina omega, the last instance. embraced in a matrix, and presumably what that imagery, that iconography is telling us is that this court cherishes, protects and nourishes the four traditions that together make up this union. importantly of course, and i rememberat make up this union. importantly of course, and i remember at the time there was some controversy as to whether or not this court's banner or emblem should have a crown on it. i understand that it now does, and i presume that is simply to acknowledge the fact that this court
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also has a jurisdiction in criminal matters, where of course the monopoly of the crown, at least in scotland, and certainly the main influence of the crown in criminal matters has to be acknowledged. not only in the prosecution of offences but also in the incarceration. but otherwise, one would not say that that flag is excuse the old latin, the banner of the king. it is the banner of the law. this flag, that emblem, all chosen, not by me, but by people who wish to symbolise what this court was about is saying that the rule of law matters. the rule of law matters within the context of respect for the four traditions, the history is, the perspectives that
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make up ourunion. history is, the perspectives that make up our union. and that those will receive a hearing and respect and understanding before this court. but are you really suggesting, mr o'neill, that we might dismiss the government's appeal, in your case, and dismiss lord pannick‘s appeal in mrs milik‘s case? and dismiss lord pannick‘s appeal in mrs milik's case? luckily not. i do understand the idea of constitutional coherence... you are presenting us with all manner of challenges but i think that might be a step too far! i am not suggesting it at all. what i am suggesting is that definitely find against the appeal in my case, and if that creates a higher standard of constitutional orjudicial review, then that is the standard which then become standard throughout the union. that is what i suggest,
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because, from a constitutional perspective, the maintenance of the rule of law, as well as the maintenance of the union, must be one which says the higher standard, where ever it be found, on matters which govern us all, such as the constitution, should be the one which follows. so that's why i'm not going to address what english law is about, i'm here to talk about scots law. and that is not a pity, political, nationalist point, it is actually just taking seriously this court was my own emblems. we know enough scots lawyers and novelists who were also political unionists while being nationalist. walter scott invented scottishness, robert louis stevenson, john buckingham. so all that i'm trying to underline
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here, as this court acting as a constitutional court will be well aware, that we live in a union state. we don't live in a state of uniformity. we don't describe this asa uniformity. we don't describe this as a nation state. but a state of nations. certainly from that legal point of view, which is all this court can properly be concerned with, and that is why that central imagery, that icon, is placed before this court for all who play before it to see. now, the importance of thatis it to see. now, the importance of that is profound. kipling once said what do they know of england? who only england no.
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and of course we've got macbeth, erroneously called the scottish play. it's the british play. it's written at a time, it's a jacobean play written to explain to a shocked english court what has happened now that a scotsman has taken over the throne. a scotsman who says he is abolishing england and creating a new country, great britain, a country without history. that history has to be reimagined, reinvented, created. that's what macbeth is doing. one of the lines that always strikes me is macduff coming back up and saying stands scotla nd coming back up and saying stands scotland where it did, and the
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response is, alas, poor country, almost afraid to know itself. now in almost afraid to know itself. now in a sense, that can be applied here and now, not just a sense, that can be applied here and now, notjust to scotland. that's just what we are faced with. a country almost afraid to know itself. and a country knows itself in part when it recognises its history, when it acknowledges its diversity, and when it knows what it's constitution is. and that is the role of this court at this time in this case. and this idea of the diverse voices is again important. because one gets that necessary
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insider, outsider perspective. what professor neil mccormick from devon university would call the hermeneutic perspective, that sense of distance, that awareness of tradition, that respect for distance and diversity. so what i want begin to underline in this case, because there is reference being made from there is reference being made from the uk government both from lord keane and sirjames, how unfortunate would it be where the law to differ as between the north bank of the tweed in the south bank of the tweed? it would be terribly inconvenient. well, iagree, but what i would counsel this court against finding is any new orwellian motto north of tweed good, south of tweed better. don't presume that.
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this court, in looking at these issues, from two cases being heard simultaneously from two of our traditions, has the opportunity, has the responsibility of acting as a fulcrum of the union, in which the different constitutional and legal traditions which make up our union are heard, and by which we are all made the richer by hearing different voices from other rooms. final point about symbolism, and history is to remember where this court is placed.
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we know of course there was much bit of distance important to have a bit of distance from the natural centres of the english legal system. so what we haveis english legal system. so what we have is this court placed in this building on this square, a vast square, symbolic, important. behind us, parliament. on the right, westminster abbey, the church. on
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the left, the buildings of government. so again, the placing of this court speaks again of an iconography of the state, the four pillars of the state, the unity of the state, the stability of the state, with parliament to legislate, the church to pontificate, in the sense of building bridges, pontifex meaning bridge builder, and this court to adjudicate. all of those are what the rule of law is about. but this square also has dark reminders of when the rule of law fails. its statues tell another story. we've got a statue of oliver cromwell standing before parliament, a signatory of the death warrant of
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childs the first —— charles the first. and whitehall, it's not simply the place where government happens, but where charles the first is executed on the orders of a man who eventually in irritation at parliament stay being his policies and getting in the way of his role, abolished it. he then invaded scotla nd abolished it. he then invaded scotland and abolished scots law. but that's ok, it wasn't a dictatorship, it was a protectorate. it was looking after you, as long as you weren't irish or catholic of course. and westminster abbey is not simplya course. and westminster abbey is not simply a church, it is not simply a royal coachjulio, a simply a church, it is not simply a royal coach julio, a place simply a church, it is not simply a royal coachjulio, a place where coronations occur in all their pomp and majesty, it is also the meeting place for the evangelical divines who were summoned by a civil war
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parliament in 1643 and got together and abolished the order of bishops in the church of england and re—established it as a calvinist, presbyterians body on orthodox scottish lines and we still have the westminster confession of faith of 1647, which still forms a foundational document for the church of scotland, so even within the church building, there are symbols of, reminders of breakdown, civil war, revolution. but we also have other statues, there is a statue of nelson mandela, a reminder of civil resista nce nelson mandela, a reminder of civil resistance against unjust regimes, but ultimately a reminder of the triumph of truth and reconciliation, the re—establishment of the rule of law and the establishment of a
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properly constitutional court. and finally of course immediately outside this court is a statue of abraham lincoln, a reminder of another civil war, but who at a time of great constitutional crisis in his own nation, and it was questioning its fundamental identity, said we are not enemies, but friends. we must not be enemies, though passion may have strained, it must not break our bonds of affection, touched, as surely they will be, by the better angels of our nature. those are the images, those are the matter is, that is the backdrop against which this court is determining the issues before it.
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and no doubt you are going to turn to those issues? right now. right now. that was just the credits. so, yeah, let's get back down to the quotidian. the appeal is not about prerogative power, and how it might ever lawfully be used, and i think there is a a lot of confusion going on about that, the prerogative power is used as if it is some sort of magic and cases that refer to prerogative power have been referred to as if one could be applied to another because they were all about prerogatives, weren't they? but it is really a collection of residual, random powers, which don't have
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anything much to do with one another. so therefore it is not good enough to say this is prerogative therefore it applies to everything which we call prerogative. it doesn't actually give you, prerogative, any analytical heft, simply by saying this is prerogative. it will depend which prerogative. it will depend which prerogative power we are talking about, what are the circumstances in which it is being used and what are the potential limits, which might be seenin the potential limits, which might be seen in relation to it. you can see by the fact it goes from constructing foreign relations, declaring war, and giving honours, pointing to the cabinet, proroguing parliament. nothing really much to do with one another at all. so, frankly, and with respect to the
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lord grand mufti, relying on cases such as sandyford, it is not particularly helpful or illuminating. sandyford, frankly, was not this court at its finest hour. 0h, was not this court at its finest hour. oh, how to win friends and influence people! laughter well, i'm sorry, lady, it's the usual scottish way of not being knowing how to be polite. and i don't know who was the unsuccessful advocate? i was the unsuccessful advocate. they're no sour grapes at all. not every scotsman is ignorant of how to be polite. you are a great model to me, my lord and i will follow it henceforth. thank you. what i would say is that sandyford is specific to its facts, the facts are important, and the fact worth it involved a woman, a british
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national, who was sentenced to death by firing squad, on a beach, and the foreign office were not making available to her funds to help conduct her legal defence. those we re conduct her legal defence. those were the facts. and various arguments were applied and tested before the court, the administrative court, divisional court, i think it was and then the court, i think it was and then the court of appeal. then it was allowed to come to appeal in this house but only on a point about the fetching of discretion. the interesting points of eu law and the charter and extra territoriality of the charter, i think, from the previous judgement, those were not given permission. so we have a case which limped into this court on the basis
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ofa limped into this court on the basis of a common law argument which was the only thing allowed to be argued on the basis of an argument about whether or not the factoring of discretion, the doctrine applied and studied matters could be applied to theissue studied matters could be applied to the issue of giving legal aid for not otherwise mandated by statute which was then said to be a prerogative power. so thejudgement of the court was and was only that that particular power to get money if so advised to british nationals facing trial abroad was not something that you could claim the factoring of discretion applied to because it was completely distressing, there was no outside standards to be applied to it in the way perhaps you could glean from words of the statute. and that's all that said, but what it also said,
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importantly, is that other grounds we re importantly, is that other grounds were in principle open. even, although this was, as it were, a totally volu nta ry although this was, as it were, a totally voluntary exercise of power by the government without any statutory backing. so, if anything, not a great case and its result but if anything, supported to me in that it confirms that the court does have a jurisdiction and that prerogative power, a claim of this being prerogative is not a get out ofjail or get out ofjudicial review free card. i suppose if we've been reading the noble lords chapter, he might classify the sandyford power asa might classify the sandyford power as a common law power rather than a prerogative one? a third source.
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indeed. and i was going to make anyone can pay money. indeed, in the case being referred to which i found on my desk this morning, that's a third source common law power, a public body can do what a private body can do so it's not really taking you anywhere. so, this appeal, what is it about? it is and it is only about the exercise of the power of prorogation of parliament by this executive in the manner at the time and for the period which has been chosen by the order on the 28th of august 2019. contrary to what was being suggested by both lord keane and sirjames, this is not asking this court to create a whole new set of rules on justifying
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prorogation might be used, for how long, in what circumstances, nor is it mandating or requiring that parliament come back and sit, if the prorogation order is quashed, which is what i will be asking for. all it is what i will be asking for. all it is saying is that this court applies its critical intelligence and judicial reviewjurisdiction as a constitutional court to determine whether the manner in which this power was exercised in the circumstances of this case, at this time, at this particular time, was consonant with fundamental principles over constitution. that's not something for which there are
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newjudicial or not something for which there are new judicial or manageable standards, that is most certainly a province of the courts to determine. now, i've set out in the case, are somewhat lengthy case, which i understand is being optioned for a screenplay for braveheart two, there are issues there and i tried to set out in bullet point where and what our constitution requires and how best it is to be understood. and really, that's it. paragraph 1.4, through until 1.10 and i'lljust remind the court because i have to apologise for the length of the case. it was done in some considerable haste. you didn't have time to write a shorter case!
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absolutely, my lady and i apologise. much harder to write a short submission than a long one, much like judgements! yes, it requires an awful lot of time to edit down and focus on stuff and we had two days to produce this. so i'm gratefulfor the indulgence of the court in allowing me the usual 50 page link to be extended in this case. but anyway, i remind the court of the points which i was to make is that parliamentary sovereignty is undoubtedly the waiting principle of the united kingdom. we know that means or i say it's clearly inherent in this concept that the executive is subordinate to the law and that's important because that basic principle seems to be being questioned at times in these febrile
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times and issues. but that's a fundamental principle, the executive is subordinate to the law and it is accountable to parliament. so the essence of our constitution is one of accountability. accountability to parliament, we live in a parliamentary, representative democracy so the executive is accountable to parliament and parliament is in turn, accountable to the people. by way of general elections. and members of particular constituencies. the executive in this country, unlike other countries, unlike the united states,
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is not elected directly by the people. the executive ‘s accountability is therefore not directly to the people. to claim otherwise is not to uphold our constitutional principle of representative, parliamentary democracy. instead, claiming a direct line to the people is not democracy but populism. under our constitution, the executive is accountable to, answerable to, has to come before and speak under questioning, to the elected representatives of the people who are duly assembled in parliament.
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but when, for example, the executive decides to have the people ‘s pm cues by broadcasting on the web, interviews and pre—selected questions and answers to it, rather than attend for prayer ministries questions before parliament, that is parodying and questions before parliament, that is pa rodying and therefore questions before parliament, that is parodying and therefore undermining the true principle upon which our constitution is based which is the accountability of the executive, of ministers of the crown to parliament. that is what our constitution protects and embodies. —— prime minister's questions. against that background, that the primary understanding is one of accountability by the executive to parliament, any power that the
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executive has two suspend the sittings of parliament, and we know that it does, can only consistently and lawfully and constitutionally be exercised in a manner which is consistent with the overarching principle of accountability. a power such as prorogation, unilateral executive act, by the executive closing down parliament is a derogation from that general constitutional principle of accountability. as a derogation from accountability. as a derogation from a general principle, the general
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principle of the executive subordination to the law and answer ability before parliament, that power has to be construed narrowly and strictly. further, anyjustification which may be offered by the executive for the manner in which it has chosen in any particular circumstance to use that power prorogation, the derogation from the principle of accountability, as sirjames says, it is what it is, thatjustification has to be looked at by the courts, using what might be called anxious scrutiny, precisely because parliament has no say as to when and how and for what reason and forethought period the executive
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might choose to close down parliament and so prevent it sitting. in the present case it appears that the prime minister ‘s actions in proroguement parliament has had the intent and effect of preventing parliament, impeding parliament, from holding the government politically to account. ata time government politically to account. at a time when the government is taking decisions that will have constitutional and irreversible impacts on our country. that fundamentally alters the balance of our constitution because it's using the power to allow the executive to govern, to exercise its foreign relations power, to negotiate internationally, at this crucial time and all without the proper
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constitutional accountability to parliament. that cannot be in the circumstances of this case, in the manner, at the time, in this period, ba lawful use of the power of prorogation. and it's not a question of how far you can go, how many weeks can i get away with in proroguement. lord keane says it's not 35 days, it's only seven. it doesn't matter how many it is. it's what its effect and intent is. he previously said parliament can act incredibly swiftly, it only took them two days to pass the ben act, 2019, mandating extension. well, if parliament can do something as monumental as that in two days, just think what it can do in seven. which it is now being prevented from sitting on, even at lord keane ‘s
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best calculations. how much more might it do if it decided not to go into recess and sit for the full 35 days. how much more calling to account of the government would be able then to carry out? a profound amount. i've said the intent and effect, this is an important point. because we are not simply concerned with the subjective motivations, the political calculations, that might have led to this decision at this stage, to pro—parliament. certainly, thatis stage, to pro—parliament. certainly, that is useful to know as far as one can, assuming one can have reliable evidence, that is a matter we will come back to. but even if they all inadvertently blunder into something
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which results in a denial of the principal feature of accountability, their ignorance of our constitution does not make what they have done lawful. that is why it is what the effect is and not simply the subjective intent, this court, as the guardian of the constitution, sees how the constitution is being affected by the use of this power. looked at objectively. as it happens in this case, even looked at subjectively, what the prime minister apparently intend on using the power of prorogation, at this time, in this manner, and for this period, we say it was for an
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improper purpose and done in bad faith. now, we know there was a letter circulated when this all blew up. on the 28th of august 2019 but before i turn to that, just outlining again the timetable by which this case, the case in which i am the respondent, came to this court. this case was raised, this judicial review was raised on the 31st ofjuly i think first orders we re 31st ofjuly i think first orders were granted on the 31st ofjuly 2019. it was raised in response to repeated leaking or unattributable briefings from well—placed downing street sources. being used, using the press as a sounding board, saying something along the lines of, we can prorogued parliament and that
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will stymie any suggestion of parliament stopping are leaving the european union, do or die, come what may on the 31st of october. so, relying on the precedent in the white man case which i will be coming back to, and the broader constitutional jurisdiction coming back to, and the broader constitutionaljurisdiction in defence of the rule of law which was articulated by the first division in that case, we applied forjudicial review and were given permission for that on the 4th of august. so, long before any decision was actually taken as far as we know, about the prorogation of parliament, a timetable was then fixed by the court for the pleadings in the case to be adjusted on both sides and
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eventually a timetable in which affidavits and other documents work specifically said to be launched by, i think that was the 30th of august and then there would be a substantive hearing in the case i think on friday the 5th of september or thereabouts. that was the timetable that was fixed in early august. now, as has become plain from the extracts from the inner has judgement that was read out from lord keane, pleadings in scottish judicial reviews matter quite a lot, actually. lord president highlights this, he says that in a sense, there's less of a tradition of relying upon affidavits although they are used sometimes in scottish judicial reviews because one relies on the good faith of counsel, properly instructed, that they will push in their pleadings, a full and candid disclosure of the case,
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setting out just candid disclosure of the case, setting outjust what candid disclosure of the case, setting out just what they say their position is. in this case, however, despite the fact that we had adjustment of pleadings up until i think the 28th of august, what was maintained in the pleadings by the respondent was that this case was academic and hypothetical and that there was no basis for any reasonable apprehension that parliament might be prorogued in connection with attempting to make it easier to get exit day happening on the 31st of october. do you have the ms numberof on the 31st of october. do you have the ms number of the relevant pleadings? i do.
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is it isita is ita74 is it a 74 and 135? my lords, it's ms 174. is it a 74 and 135? my lords, it's m5174. as is it a 74 and 135? my lords, it's ms 174. as adjusted, the 2nd of september. i'm told, the various stages of the pleadings led macro lord keane refers to it as adjusted to the 2nd of september, no order allowing for adjustment as the 2nd of september, the adjustments that came in after the adjustments that came in after the timetable were unilaterally put in by the respondents and no code sanctioned for that, so the period of adjustment finished on the 28th of adjustment finished on the 28th of august. no application was made otherwise. but in any event nonetheless. there was an adjustment on the 27th. yes, i was on holiday. can you refer me to the relevant
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passage, please? yes, i can refer your lordship to page 473, ms page 473, reclaiming print, page 51 of the reclaim into print. on the document that starts on page 174. you are taking us from the reclaiming print. it's law five. thank you so much. apologies, its tab 32, the reclaiming print is simply the pleadings as were before the inner house. what's the date of this? this would be early september. the 2nd of september i think was the la st the 2nd of september i think was the last amendment. yes. this was the government because my position on the 2nd of september? it had been the 2nd of september? it had been the governments position.”
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the 2nd of september? it had been the governments position. ijust wanted, i understood your point, i just wanted to substantiate the text. thank you. but anyway, the government position and the plea in law, no basis for apprehension, the uk government intends to advise the queen to prorogued parliament, proper time for parliamentary consideration, the withdrawal of the united kingdom from the european union, the order should be refused, thatis union, the order should be refused, that is the position throughout august and was maintained into september and there are pleadings which go on to that. that was the reason . . . sorry, which go on to that. that was the reason sorry, let me get the dates rights. that position was maintained at the 2nd of september? and when does it change?m maintained at the 2nd of september? and when does it change? it hasn't changed. i see. it's and when does it change? it hasn't changed. isee. it's not and when does it change? it hasn't changed. i see. it's not saying that the government simply the government doesn't intend to prorogued, it saying it doesn't intend to prorogued with the intention of denying sufficient time. one has to
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read the first element with the qualification of the second.” read the first element with the qualification of the second. i hear lord keane saying that exactly in triumph! the pleadings have to be handed and done in good faith and even the lord president said that he understood from the manner in which the pleadings were drafted and this is something i will come back to, it might be called equivocal, tending to mislead if not strictly lying, the lord president said he assumed the lord president said he assumed the legal team had been kept in the dark and hadn't been told of the decisions which had been apparently taken on the 15th and 16th of august because one would have assumed that ifa because one would have assumed that if a decision to prorogued had been taken, in candour, that would have been reflected in the pleadings.
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now, i think what's said against me is that my lord keane, the government doesn't ought some kind of duty to a ragtag of 75 parliamentarians who decided to go to court in scotland to challenge something before it's even happened. but of course the duty of candour is endowed to my clients but it's owed to the court. and it's the court which has been told that there is no reasonable apprehension, it is the court which is potentially being misled, it's certainly not been given full and frank disclosure of the government because my position. i draw this to the core ‘s attention because that is the background partly, against which the inner house treated with some degree of
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scepticism, the subsequent explanations and the revelations of a quite different timetable when various documents were brought to the court ‘s attention in the 2nd of september. this should have been in the pleadings, they didn't put it in the pleadings, they didn't put it in the pleadings, they didn't put it in the pleadings so it's really not good enough for my lord keane to suggest that well, in scotland, we don't have affidavits, there's no problem with putting in documents late and then saying, nobody says it's the truth, of course, there is no affidavit, just some floating documents with reductions. which counsel speaks to on the basis of whatever instructions they've got. there's no affidavit in any of the scottish pleadings whatsoever, not even the one which has been referred to and was brought before the divisional court in this place. so,
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that's the position. one has to bear in mind the chronology, the pleadings were to be adjusted in accordance with the court ‘s timetable, that was after a decision had been made but not made plain and not made known by those pleadings. on wednesday the 28th of august, we eventually do get the confirmation of what had been trailed in an unattributable briefing throughout the month of august and july and in fa ct, the month of august and july and in fact, prorogation was in fact going to be used but in a cunning change in it, unexpected singing instead of sagging, was that instead of having
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prorogation over brexit day itself, they would just take a chunk of time out before brexit day. so, for example, the northern ireland executive information act 2019, the provisions which were added in against government opposition by backbenchers from dominic grieve to lord anderson of ipswich, were predicated on what was then being lea ked predicated on what was then being leaked as government plans of proroguement parliament over exit day and so therefore, the mischief which they were being told was contemplated was going to be blocked by amending the 2019 bill accordingly. but the cunning response of the government did that which they now rely upon here, is that well, that's what parliament intended in terms of it not wishing
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to be prorogued over a crucial time so we can find time within the timetable of the 2019 act, that means we are acting lawfully. because in the 2019 act, it says you have to bring your first report by the 4th of september, publish it and then five days later, parliament has to consider it. so, the 9th of september says the 2019 act. parliament has to consider it. so parliament has to consider it. so parliament reading that act, has to be sitting on the 9th of september. but the second report, under the 2019 act, has to be produced by the 9th of october. your point is simply that they've ta ken 9th of october. your point is simply that they've taken every day that they could consistently with that act? yes, they've seen a black hole and they have leapt into it! not
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quite the metaphor but it will do! and then, one knows of course, the 9th of october was the next date and so five days after that, the 14th of october, hey presto, parliament gets called backed and the 35 days, they've managed to not contravene they've managed to not contravene the 2019 act, they say, but there may be other interpretations of that as has been suggested but that's the rationale which is given for those dates. and thereafter, the 2019 act says you've got to report every two weeks. so clearly what that had in mind, you are not going to progress over brexit day and so what they've done instead is probing you over the bit you forgot about. it's clever but is it constitutional? what is the intent, effect? that's the question for this court.
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so, the reasons, the only publicly published reasons for the decision to prorogued at this time, in this manner and for this period, were produced in a letterfrom manner and for this period, were produced in a letter from the manner and for this period, were produced in a letterfrom the prime minister dated the 28th of august, the day of prorogation to mp5, it might be worth just having a quick look at that although it might be difficult to find, it is in the miller bundle. the miller trial bundle, tab 47, ms page 354, page 417 of the hardcopy pdf. it's the other way round! pdf hard copy 314. yes, that's
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correct. so the letter is... i've hope you had an enjoyable and productive summer recess with the opportunity of some rest. the head of the return of parliament and the house, i'm going to update you on our business plans. blah blah blah. this morning i spoke to her majesty the queen to request an end to the current parliamentary session, second sitting in september before commencing a second session of parliament with a queen's speech on monday 14th october. it moves on, i fully recognise the debate on the queen's speech will be an opportunity, so this is a four day debate, four orfive opportunity, so this is a four day debate, four or five days on the queen's speech, at the end of october, the second half of october, will be an opportunity for members of parliament to express its view on this government's legislative agenda and its approach to the result of the european council on the 17th and
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18th of october. it is right that you should have the chance to do so ina clearand you should have the chance to do so in a clear and unambiguous manner. so you can express your view. but do you have any time to do anything about it? going on, "i believe it is vitally important the key votes associated with the queen's speech and any deal with the eu follow a time when parliamentarians are best placed tojudge the time when parliamentarians are best placed to judge the government's programme. parliament will have the opportunity to debate the government's overall programme and approach to brexit in the run—up to the european council from 14th october. " mclean "should i succeed in agreeing a deal with the eu, parliament will then have the opportunity to pass the bill required for ratification of the deal ahead of 31st of october". not really giving much time for passing a bill on something potentially
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rather contentious, even with the best will in the world, and i'm not sure there is so much of that around at the moment, the fact is we are going to have five days spent on a queen's speech debate, and then somehow it looks like the expectation of the government is that parliament will rubber—stamp whatever deal it manages to rest from the european union and passed the bill, giving effect to its terms. it doesn't shout "parliamentary terms. it doesn't shout " pa rliamenta ry accountability" to me. finally, iwant " pa rliamenta ry accountability" to me. finally, i want to reiterate collea g u es me. finally, i want to reiterate colleagues that these weeks leading up to european council on the 17th and 18th october are vitally important for the sake of my negotiations with the eu. member states are watching what parliament does with great interest. and it is only by showing unity and resolve that we stand a chance of securing a new deal that can be passed by
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parliament. in the meantime, the government will take responsible approach of continuing its preparations for leaving the eu with or without a deal. now, we can interrogate this. and we can interrogate this. and we can interrogate this. and we can interrogate this with some scepticism. i note that my lord reid yesterday suggested it was important to look at the particular memos on the wording is used and the reasons given. that is absolutely right. it is important, but it is also important that you do not give the government the benefit any doubt in this matter, because of the manner in which the documentation has been produced, and it is therefore, the case law is quite strong from dass and the judgment of lord sales which we have looked at in that case, but it goes back not simply to dass and
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the belize international decision of lloyd walker, but it goes back to padfield. and i will come on and take, i will show the passage in padfield that it refers to. but it shows that in circumstances in which these circumstances have been produced, without quoting affidavit. with redactions, which are claimed and then leaked from time to time, that this government should not take on face value, it should not take on face value in these documents. the point i was making was not so much it should be taken at face value, it was that they should not be ignored. absolutely not. it wasn't apparent to me that the various factors put forward in the minute reflected in the other cabinet documents had been
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taken into the other cabinet documents had been ta ken into account the other cabinet documents had been taken into account in the opinions of the house. . well, i think they were. they clearly do quote from it. they do take it very seriously but the important point also to bear in mind, my lord, i will be coming on to ita mind, my lord, i will be coming on to it a bit more specific criticism but the only decision letter from the only decision—maker in this case are the handwritten notes of the 16th of august 2019, and that does not set out the reasons. ms page 246. let's look at that. now there isa 246. let's look at that. now there is a document beforehand on the 15th of august, which sets out a variety of august, which sets out a variety of more or less plausible explanations. if you're working from paper page, just 316, i think. is this the prime minister's comment on the da costa memo you are talking about? in our bundle, i am back to
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the miller bundle, i mean... the attorney bundle, i'm giving up on miller. can you give me the ms numberagain? it is miller. can you give me the ms number again? it is 246. thank you. so the decision letter from the decision—maker setting out his reasons, not saying i agree with the suggestions you put forward, nicky da costa, in the memo, one cannot presume, and i feel that da costa, in the memo, one cannot presume, and ifeel that was da costa, in the memo, one cannot presume, and i feel that was the approach being suggested by my lord reid, thatjust approach being suggested by my lord reid, that just because approach being suggested by my lord reid, thatjust because it is set out ina reid, thatjust because it is set out in a memo by a special adviser or director of legislative affairs as to these are various reasons we can give as to why we might prorogue, that they were in fact the
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reasons for prorogation. .. this doesn't bear to be suggesting reasons that you can give, this isn't, as it were, providing an alibi, it is giving advice to the prime minister. but it doesn't mean to say that precisely so, it is giving advice, it is not, it is the advice from someone who is not the decision—maker. the decision—maker is the prime minister in his memo, and what goes before it might well inform it, but we don't know, because we have no affidavit. we've got no evidence as to what the real reasons were. all we've got is something which bears to be, and i have no idea when it was created, but it has a date on it of the 16th of august but there is no supporting affidavit saying that is true or complete. what we have here is this whole september session, reading from 246, is a rigmarole introduced by and we have subsequently had lea ked by and we have subsequently had leaked to us, the blacked out bit,
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which was blacked out presumably it was claimed anything blacked out as if it irrelevant or covered by law officers convention. not quite sure what introduced by that girly swot cameron falls under, i certainly think it is potentially irrelevant. however that whole september session isa however that whole september session is a rigmarole introduced by that girly swot cameron to show to the public that mps were earning their trust. so that is reason number one. reason number two, so i don't see anything especially shocking about this prorogation. reason number three, as nicky notes, it is capitalised, over the conference season, so that the sitting days lost are actually very few. that is all we've got. because the only
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other use of the pen of the prime minister is in relation to page 247, paragraph two, recommendation, following from a blacked out paragraph, and! following from a blacked out paragraph, and i have no idea why that was blacked out. recommendation are you content for your pbs to approach the palace to request prorogation and for a queen's speech on monday 14th october? that is ticked yes. that is the only paragraph ticked yes. so if there were, if there had been an affidavit or supporting document saying that in fact or supporting document saying that infactl or supporting document saying that in fact i looked at this recommendation and i was convinced by paragraphs ten, 11, i dodged 12 and 13, because that was the legal
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advice, i'm not going to tell you what that was, but i wasn't so convinced by 17, but 18 was, then the court could work out, because then the court would have cogent evidence, which of course, if that had been put in, one would have asked for cross—examination just to test its veracity. and the idea of cabinet ministers putting in affidavits explaining their actions is not simply confined to australia and occasionally scotland, but of course an m against the home office itself, kenneth baker, the home secretary, personally put in an affidavit, explaining why it was that the asylum seeker in that case was ordered to be sent back to zaire, notwithstanding the court order requiring that he remain in the country. that affidavit was produced only at the court of appeal stage, i think sirjohn dalston says it is opposing it came so late. so there is no constitutional novelty
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or outrage in the idea that those cabinet ministers, including the prime minister, who make decisions, which are being judicially reviewed, for which permission has been granted, should actually explain themselves and see in relation to such documents as are relevant what we took out of it. so that is why i urge this court, as the inner house quite properly did, to look at these documents, certainly look at them, but don't treat them as gospel, don't treat them necessarily as the com plete don't treat them necessarily as the complete truth telling us all the reasons. nothing tells us that is the case. when you say the complete truth, do you mean not the whole picture, that there might have been an elephant in the room when the
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document was written, as it were? the document might have been written knowing that it might subsequently be challenged, the decision might be challenged, therefore they need cover. for example. my lord reid is looking perturbed and upset.” cover. for example. my lord reid is looking perturbed and upset. i am looking perturbed and upset. i am looking sceptical at that suggestion. read the documentation, and 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 in high politics solely, as opposed to low, dishonest, dirty tricks, but i'm not sure that we can assume that of this government, given the attitude which has been taken given the attitude which has been ta ken publicly by given the attitude which has been taken publicly by its advisers and by the prime minister himself to the rule of law. so look perturbed, look
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upset but don't look sceptical. look at the documentation. just looking at that documentation, p39e just looking at that documentation, page 247, the memo from nicky da costa, so we have a redacted paragraph three, we don't know why can going over the page to 248, there is a reference to parliament running out of business, ironically, really, and then paragraph seven, the last prime minister was aware of these tensions. for these reasons, dates were placed in a diary for a queen's speech in april— may 2019 and october 2019. at the time october was considered a very late into the session. what is not said
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there is that one presumes under theresa may's premiership when these we re theresa may's premiership when these were being pencilled in, this was before one knew that the exit date had been extended to 31st of october. that is a relevant consideration, so simply to say that the previous prime minister might have pencilled those in and semi—clea red have pencilled those in and semi—cleared it with the queen beforehand, really dealing with the here and now, this is the 15th of august, we know when exit day is coming. going on to paragraph 14, next page, 249, finally, we get the big blackout of the legal, i wonder what that said, and the point which i make, i bought it before the outer house, the inner house and before this house, that we and you, this court, should see the full unredacted versions of these
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documents for what they are worth. because in putting in these documents in the manner in which they have, they have waived such claims as they might be to legal professional privilege and legal advice privilege or law office of‘s privileged. case law, lord reid wasn't involved in the inner house, scottish lion, cooperative, we don't have a copy of that, i will get it to you. but i have quoted the particular passage to you. it is good law. it is law which applies to this case. but let's stay with what we have got, work with what we have got, the redacted versions. paragraph 14, finally, politically it is essential parliament is sitting before and after the eu council, that is one on the 19th, we don't know why it is politically essential but that is what it said. mps and peers must be in a position to consider what is being negotiated and hopefully pass the withdrawal agreement bill. well, you never
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know, they might, they might not, but at least they will have seen what it was. if there is no deal, they need to have an opportunity to hear what you have to say and respond accordingly. that is all very true, but do you think that giving parliament, what, ten days, after your five days of chatting about the queen's speech, is going to be enough to respond accordingly or hopefully pass the withdrawal agreement bill? paragraph 18, finally it must be recognise the situation has become more complicated because prorogation on its own and separate of the queen's speech has been portrayed as a potential tool to prevent mps intervening prior to the uk's departure from the eu on 31st of october. who portrayed it as that? i think it was a decision first mooted
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byjacob rees—mogg think it was a decision first mooted by jacob rees—mogg in think it was a decision first mooted byjacob rees—mogg in march, now the leader of the house. gosh, it is from within government itself, now government itself, the suggestion that prorogation be used as a tool to prevent mps intervening in the departure of the uk from the eu. and it has been portrayed as such in various leaks from non—attributable sources in downing street, which of course is what prompted this petition being drafted at the end of july in the first place. and then the precedent for a period of prorogation, page 250, the present proposal would mean parliaments to prorogue for a period of up to 34 calendar days. however, given moment —— given the expected
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recess period of typically three weeks, the number of sitting days lost by such prorogation would be far less than that. one to three sitting days during the week commencing 9th of september and four sitting days during the week commencing 7th of october. well... of course we know there is a vast difference, and i will go on to that, between if parliament chooses to vote in favour of it going into recess for the conference period, and it being unilaterally, without warning told that the leader lord present of the privy council is on a flight present of the privy council is on a flight bound moral to get the queen to sign off on the prorogation for which it has been given no prior notice. your argument is, is it not,
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that this memorandum, properly analysed, outlines possible lines of defence to the portrayal of the length of prorogation as a means of stifling debate, rather than actually addressing and articulating the practical reason for choosing five weeks? yes, absolutely so, my lord, and again if one reads critically, may cynically, the documentation, we see that, if you dig deep enough into it, it looks like the real reason is perhaps coming out, rather than the one which has been presented for messaging purposes. if you see at page messaging purposes. if you see at page 266, which appears to be a cabinet memorandum, which the government has given us the privilege of seeing the minutes of the cabinet meeting, so, we note
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there parliamentary business, page 266, it's there parliamentary business, page 266, its important we are brought up to speed you would think on decisions that had been taken by him without cabinet, because he is exercising personal prerogative powers, it appears, exercising personal prerogative powers, itappears, in exercising personal prerogative powers, it appears, in advising the queen. exiting the eu on 31st of october was the first priority of the government. so that's what they are being brought up to speed on, in case they have forgotten. however there is also the domestic agenda stuff. continuing, the prime minister said he had spoken to her majesty to request the session should end on a date between ninth and 12th of september in a queen's speech of monday 14th october. this timetable gave parliament ample time to debate brexit in the period before the european council, ample time. ample time. is that really
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ample time? to debate, to hold to account, to potentially pass legislation, too, if so advised, thought the government's headlong rush to a no—deal brexit? it goes on, and again in the run—up to the uk's departure date on october 31, it was important to emphasise this position to prorogue parliament was not driven by brexit negotiation. why was that important to emphasise, when the first thing emphasised by the document says exiting do or die is the government was met first priority? going over the page, page 267, any messaging should emphasise the plan for a queen's speech was not intended to reduce parliament's footing or to minimise parliament's views of brexit. it may or may not have been intended but that was most certainly in its effect. it might be
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said that the second sentence there doesn't fully answer the first. yes, indeed, parliament had already had a significant opportunity to debate brexit and would still have remaining time to do so before october 31. likewise it was crucial parliamentary colleagues understood the government was still seeking a deal and that this plan would allow a withdrawal agreement to be approved by parliament if a deal was approved. the assumption is that parliament is just there to rubber—stamp whatever they get back. therefore any suggestion government was using this as a tactic to frustrate parliament should be rebutted. the terrain between now and october would be rocky. the government would be attacked for this decision but it would be manageable. so lord reid, that points up the awareness of the potential for attack. it doesn't specify whether in the courts or
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politically, but they certainly are aware of its controversial nature. going on, 268, subparagraph f, it was important the messaging did not appear to put the government against mps. going down the page to the penultimate paragraph, continuing, the prime minister said it was vital to persuade an enthused parliamentary colleagues to get behind the government's plan, the eu we re behind the government's plan, the eu were likely to hold out for parliament to block brexit, while they thought that was possible. that's important. that's a consideration. you are relying on the democratic, elected representative legislature to express its will by potentially blocking brexit, then that would
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appear to impede public policy. how much easier, then, to get round that by simply closing down parliament for a significant period, so that it wouldn't be able to hold out, the eu wouldn't be able to hold out, the eu would not be able to hold out for parliament to block brexit. going on, the backstop was fundamentally undemocratic, it bound the uk into eu laws, gave dublin a greater say over matters than northern ireland, progress with the eu should not be exaggerated. it was substantial, there was a good chance a deal could be agreed, there was also a high chance could not. success would require a united and determined approach. so that's what this is about. we are all in this together, we're all singing from the
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same hymn sheet, because anyone singing a different him has been silenced. because parliament is not sitting any more. so yes, those are the documents which have to be read in full, and carefully, and sceptically, that is not some kind of, as you say, constitutional innovation. i refer the court to the case of padfield. this may be the one case we did not have in our bundle. and i don't have very much time so let me just read out the bit while my learnerjunior
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finds the reference. padfield page 997, lord upjohn is giving a judgment on which he agrees with lord reach, and in that, in that passage, he draws adverse inferences from the weaknesses of the affidavits that had been launched in that case. he says this, i will turn to the minister's second letter of may three, 1965, which says that you will appreciate that under the 1958 act, the minister has unfettered discretion to decide whether or not to defer a particular complaint of the committee of investigation. in reaching that decision, he has had in mind the normal democratic process of the milk marketing board. this impresses that he had an unfettered discretion in this matter, thus it was argued it means provided that the minister
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complained, considerthe provided that the minister complained, consider the complaint ona complained, consider the complaint on a friday, that was the end of the matter. and it goes on, my lords, i believe the introduction of the adjective unfettered and its reliance thereon in answer to the opponent because my claim is one of fundamental matters confounding the minister's attitude, bona fide threat might be. first the adjective nowhere appears in the section, it is an un—authorised quote. secondly, evenif is an un—authorised quote. secondly, even if it did contain that adjective, i doubt it would make any difference in law to his powers. we have padfield of tab 18 of the supplemental authorities for this appeal in the miller case.” supplemental authorities for this appeal in the miller case. i am very grateful for you. page 226 electronically. and which page of the judgment itself are you reading from?”
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and which page of the judgment itself are you reading from? i am reading from page 106—1. well, i think that was from 106—0, but i am going from 106—1 to two. anyway, i got to the point where lord upjohn says it doesn't matter whether or not, even if the statute said you had unfettered discretion, it would not make any difference, i doubt it would make any difference in law. namely that acting lawfully he has a power of decision which cannot be controlled by the courts, it is u nfettered. controlled by the courts, it is unfettered. but the use of that adjective even in an act of parliament can do nothing to u nfettered parliament can do nothing to unfettered control which the judiciary have over the executive, namely that in exercising powers, the latter must act closely and that isa the latter must act closely and that is a matter to be determined by looking at the act and its scope and object and conferring a discretion upon the minister.
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we are going to pull away from those proceedings and give you a bit of analysis about what exactly is going on inside the supreme court. aidan o'neill qc, representing john cherry mp and other campaigners who have successfully at the court of session in edinburgh, persuaded the court that the prime minister had acted unlawfully in proroguement parliament. —— joanna unlawfully in proroguement parliament. ——joanna cherry. he is arguing for the supreme court to uphold that. let's talk about what he's been saying to a representative from the university of oxford faculty of law, chris forsyth from cambridge university and from the centre right think tank policy exchange. aidan o'neill very lyrical talking about kipling and oliver cromwell, macbeth, all sorts of things, robert burns but then he talked about how it wasn'tjust the
quote
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intent of proroguement parliament, suspending parliament, it was the effect of suspending parliament and he said it was done with improper purpose and with bad faith. exactly, i think he was picking up on comments made on the first day, enquiring as to what exactly the difference would be between the intent of the prime minister when he chose to prorogued parliament and the effect, inviting those submissions and i think this is what has been picked up on today. the effect that parliament cannot scrutinise the brexit process, that's the argument. ultimately, parliament would be able to hold parliament would be able to hold parliament to account for all sorts of things, like statutory instruments and in the final insta nce instruments and in the final instance parliament couldn't hold a motion of no confidence. massive amount of difference to the usual parliamentary procedures. chris,
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from cambridge university, do you buy those arguments that we've been hearing from aidan o'neill this afternoon? no, i don't think! buy any of the arguments. it's been a colourful presentation. a lot of romance and colour in what he had to say. but not that much prurience, if you'll forgive me. enough legal argument for me. he's been reliant, hisjob is somewhat argument for me. he's been reliant, his job is somewhat straightforward in that he is defending the decision but i think he could have done a betterjob. stefan, how do you see this going? we've heard this morning from sirjames eadie representing the government, now we are hearing from aidan o'neill. do you think it's a finely balanced in terms of
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the view that we started to hear coming from the 11 judges in terms of their questions? finely balanced, i think you'd be hard—pressed to tell from the questioning which way thejudges are tell from the questioning which way the judges are leaning and that's very much the purpose of the questioning, they don't want to give away what they are thinking, they wa nt to away what they are thinking, they want to be informed as impartially as possible so this is very much pa rt as possible so this is very much part of the game and you can tell they are imminent and doing a good job at it. in a way, the first thing they have to decide when they get together at the end of this and talk about what the judgement will be is whether it is for them to rule on. exactly, that's going to be a tough one to decide. my personal intuition is that they will say it's for them to rule on because even though the prime minister prorogued parliament thatis prime minister prorogued parliament that is unusual, certainly for a judicial review, its not unusual in principle for the court to review the exercise, the prerogative powers through the government which this in the end, is. stefan and chris, thank you very much.
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the other side, because they've got the magic word prerogative, they think they can do whatever they like with it unless and until they are expressly and explicitly stopped into the argument about whether well, we managed to find black hole in the ireland executive act, everything is political, the court, stand back, that is not how the constitution works, everyone is subject to the law. the executive and the constitution. the executive parliament and this court. no one has unfettered power, no one has absolute power. that is what the glorious revolution was about, the 1689 settlement, precisely to say that, no, there are no sources of power direct from god, unfettered
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and unchallengeable and unaccountable addressed in the executive in this country. it is parliament. and it is parliament which is representative and democratically based therefore it means because of its accountability it is ultimately accountable to the people. so, as! so, as i understood sirjames submissions in response to some questioning earlierfrom lord care, he expressly accepted that the only limits on prerogative power and extending our power then the lowest
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possible limits are those of respect forfundamental possible limits are those of respect for fundamental rights and the principles of the constitution. —— kerr. clearly those fundamental principles of the constitution must include what i've underlined is parliamentary sovereignty, the subordination of the executive to the law, accountability to parliament and the democratic accountability of parliament to the people. so, if, as i understood sir james, no doubt i will be corrected, there was an acceptance that where prorogation inhibits, it is what it is, he says, inhibits necessarily parliament ability to hold the government to account may impede it from legislating as it might otherwise wish to. then there have to be limits as to the extent to which it can use that power
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compatibly with our constitution. once parliament has been prorogued, the only constitutional act are still standing is the court. so therefore it is for the courts as our constitution works, to determine whether or not the power of prorogation has lawfully and constitutionally been exercised by the executive, it is impossible for parliament to hold them to account on that, it does not mean that we are asking the court to identify an appropriate length of time as to whether parliament wishes to legislate, as to whether parliament should in fact, decide or ensure that it was recalled. what it does mean is that in extremist, when we are in this unique situation because of the potential, irreversible constitutional change, the potential
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dangers accepted even by the government in its operation yellowhammer document of a cliff edge, no deal brexit. —— in extremis. the constitution is unbalanced and the role of this court is to rebalance it by ensuring that parliament is in fact able if so advised, for it to decide how it should sit, when it should sit, what it might do in that period of sitting. we cannot have a situation in which there are no standards where prorogation can be used with impunity to close down parliament whenever it becomes incomplete. it's not, departing from what lord pannick said, is it all right for two days, three weeks, how far can i 90, two days, three weeks, how far can i go, it five weeks, maybe that's too
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much? it's not about the length, it's about what it's doing to the constitution that's why i constantly emphasise, it's certainly how long is this prorogation four. but when is this prorogation four. but when is it being used and what is the constitutional background, what are theissues constitutional background, what are the issues that would otherwise be before parliament for it to call the executive to account and potentially to legislate on. in this case, it's the potential for leaving the european union on exit date with or without a deal. we know that the intention of parliament in the 2018 withdrawal act clearly in terms of section nine and 13 of that, say that parliament has to be involved in those decisions, in the decision as to the terms upon which we might properly leave the european union, this is not a matterforforeign affairs prerogative or the like, for
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the crown to enter into such treaties, international agreements as it thinks best. parliament is involved and parliament is involved in part because of this court ‘s decision in miller. picking up on what was done in miller which we affirmed the constitutional principle that the crown has no power to attenuate, modify, principle that the crown has no powerto attenuate, modify, remove individuals rights and that included eu law rights and that therefore, at the very least, there needed to be parliamentary authority for any such action which did impact upon individual rights, that's what the majority of this court found and found correctly. where the court perhaps went slightly wrong was in falling for the bullet being fired from a gun analogy upon which having
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accepted that, it was said that notification in and of itself was sufficient to impact upon individual rights. we always have a difficulty, don't become especially in a public law case as to whether we should acce pt law case as to whether we should accept the agreement of the parties as to what the state of affairs is which of course for obvious reasons, the parties were in agreement as to that matter. 0r whether we should challenge it or not accept it. that is always a difficult question, rightly or wrongly we decided to acce pt rightly or wrongly we decided to accept the agreement of the parties. i'm not being critical, it may sound it but i'm not, all i'm saying is read miller now, this is a bad analogy, it's going to take two yea rs before analogy, it's going to take two years before the bullet reaches the target. whatever the particular facts of miller, the principal established was clear. yes. absolutely. the principle is absolutely right but the point is in the light of the full court decision
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in wightman, it's clear that notification is in those two years revoca ble notification is in those two years revocable and the bullet can be called back and so it's only when it actually hits the target and it only hits the target with the united kingdom ceases to be a member of the european union and it does that by operation of article 50 subsection three. the principle in miller that the executive cannot do this on the basis of its prerogative for paris alone, it has to be expressly authorised by parliament. then applies. and we are still waiting for the authorisation of parliament to allow for that comment section nine of the 2018 act and these memos are predicated upon the idea that once the withdrawal agreement comes back then parliament will pass a statute which will do the necessary miller thing of allowing individual rights to be affected by the
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withdrawal of the united kingdom from the european union. what this government seems to have failed to understand in its reference to there being a no deal brexit however, is that there is no statutory provision which in any sense authorises this government to leave the european union with the inevitable effect it has on individual rights without a deal. there is no no deal statute. so, one of the other reasons as to why this decision to prorogued is flawed is because it's based on an error of law, it presumes that and it is aimed at, we are seeking to prorogued parliament in order, if it happens to be the case, to be able to crash out without a deal. you have no authority to do that. you
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are mistaken, they have misdirected themselves. the issue of the interlocutor pronounced by the inner house, we only have 15 minutes left, i'm afraid i'll have to not talk too long! you have 17 minutes precisely. and i will stick to them, my lady, i may even stop early! depends on how much barracking i get! let's not go there! indeed, lets not go there. in accordance with standard practice, the court of session, if you have an order which is found to been issued
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unlawfully, then you reissue the order, it is null and void, that is standard procedure. it makes everybody, everything here, everybody, everything here, everybody knows where they are and that's why there is no scope for misunderstanding or further equivocation is or briefings or the like. the order is a dead order. now, perhaps in the more sophisticated arena of the courts of england and wales, there is the suggestion of ultimately the remedy being a matterfor suggestion of ultimately the remedy being a matter for the discretion of the court using its equitable judgement in all the circumstances. now, that's not really been developed frankly in the scottish system, there is a passing reference to the idea in the judgement of lord tobin against the advocate general, 2011, the uk supreme court cases 29
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paragraph 27. at the generality is he says this. the grounds of judicial control of administrative action in scotland are based on legal principle, judicial review by the court of session is not an exercise of judicial the court of session is not an exercise ofjudicial discretion, in contrast to what was said to be the position in english law. every person who complains he has suffered a wrong because of an error or abuse of power conferred on the decision—maker is entitled to apply to the court of session forjudicial review as of right in exactly the same way you could have done by ordering action and before the rules of court were amended. and he goes on, he does not have to apply for permission to do so. he concludes although the court has a discretion to refuse a remedy injudicial review in what may be described as equitable grounds it has no discretion to refuse to entertain a comet of action. it discretion to refuse a remedy on equitable grounds is not further developed. but what
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are the equitable grounds here for refusing to grant the necessary order of reduction? when there has been found to be unlawful? we have a history of a government which seems to cast doubt on quite how binding the legal orders are in relation to them. now, i know my lord hodge suggested if we just have a declaration that will get us off a potentially difficult hook but i'm afraid i'm not one for leading courts of hooks in that sense. this is an important point. we are entitled to an effective remedy. the remedy which naturally flows from a finding of unlawfulness is a simple reduction, yes, that means that the decision—maker can then as properly advised in law, if so advised,
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reconsider matters and issue a new decision but in no sense is there any basis for it to be said that somehow the order which has been found to be unlawfully made, somehow subsists in validity, pending its reconsideration so parliament is still suspended which i assume is the basis upon which it is being suggested as i say, belatedly, that to have an order for reduction the circumstances of the inner house judgement is a breach of article nine, bill of rights because it contravenes parliamentary privilege, parliamentary privilege. what they are trying to do is the usual cloaking it, if we rush into the house of commons and then say, you are prorogued, that's parliamentary privilege and you cannot question that in the courts. that's not what bill of rights was intended to do. article nine of the bill of rights was intended to stop the crown from
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prosecuting mps was intended to stop the crown from prosecuting mp5 for using their free speech in parliament. and then, subjecting them to criminal or civil suits for things which the crown found to be insulting, that is what article nine is about, it's not a manner in which to cloak executive action in some other form manner in which to cloak executive action in some otherform of immunity. it's a complete misunderstanding and misreading of the constitution. as far as i can see, he didn't actually seek reduction or obtain it? you know, the remedy sought in article 18 was the remedy sought in article 18 was the claret and interdict. and what he got... the claret and interdict. and what hegot...we the claret and interdict. and what he got we stuck by the rules and timetable. we stuck by the rules and the timetable on this, and also, as a lwa ys the timetable on this, and also, as always injudicial the timetable on this, and also, as always in judicial review, the timetable on this, and also, as always injudicial review, positions are set, any other remedy which is appropriate. in this case the pleadings were finalised on the 27th of august in accordance with the
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courts interlocutor. that was before the prorogation happened. so we've never had an opportunity of responding and taking into account the prorogation, we don't really quite a good job in anticipating what they might have done because we read the observer newspaper. but you know, if i had the opportunity and ifidid, know, if i had the opportunity and if i did, but because the court fixed a timetable, i finalised the pleadings on the day the court asked, they subsequently added something in but we've never had an opportunity to respond so i rely upon the generaljudicial review request of any other remedy as is appropriate in the circumstances and the remedy which is appropriate in the remedy which is appropriate in the circumstances, we were seeking a declaratory and interdict, we now seek a declaratory and interdict, we now seeka... declaratory and interdict, we now seek a reduction of what? reduction in the order of council, the 28th of august. that's the
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decision that was made. and again that's not a constitutional difficulty. i can't say you're asking us to do that, it's not for the inner house did. it's what i asked them to do, you know. they don't always listen to me. but yes you've amended your pleadings?” could amend them if you want me to. could you have before the inner house? my lord, again, let's remember the timetable, this happened to mega weeks ago, six days, on wednesday three weeks ago i was phoned and told there was going to bea was phoned and told there was going to be a prorogation, we were in court and i drive 400 miles from devon from my holiday, in court on thursday arguing for interim interdict, we served the petition or attempted to on the queen in balmoral avenue basis of what was being picked up earlier on the
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possibility that the queen had an option of not exceeding two this isa option of not exceeding two this is a purely technical inquiry because of my ignorance of scottish procedure. if the time had been allowed, i'm sorry, if the time had existed, it would have been possible for you to apply for an amendment before the inner house? to ask for a reduction. i'm setting out of what happened. quite. iwanted reduction. i'm setting out of what happened. quite. i wanted to know if it was technically possible. you would have to ask permission but you don't becausejudicial would have to ask permission but you don't because judicial review is a flexible procedure. and where pleadings don't count so much, i refer to what lord hope said in somerville. you've got to be succinct and clear and to the point and its broad enough to allow for that. we put in everything we could but we had a hearing on interim remedies only on thursday, we had a judgement saying that was being refused until the full hearing which
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was brought forward to the tuesday. we got a full hearing on the tuesday, we got a judgement on the wednesday. which was then heard before their inner house on thursday and friday. i mean, i've done my best but i can't do the pleadings as well. i'm not being critical at all, i'm not being critical at all, i'm not being critical at all, mr critical at all, i'm not being criticalat all, mr o'neill, i simply wanted to know the situation. the point is there was no strict need to amend the written pleadings. you could have requested the inner house to pronounce reduction. for the sake of clarity but as it turned out, i didn't need to. what is the difference, technically, between a declaration that says something is null and void and an order for reduction? it's just ... null and void and an order for reduction? it'sjust it's making it entirely clear. it's harking back
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to section 21 of the crown proceedings act, 1947, isn't it? and it would be clearer to know for example if the order in council had been quashed, if the appointment of commissioners had been quashed, then we would know where we stand, as it is, whether a bigger way of putting it, the prorogation following their own, that is to say following on from the advice, is unlawful and therefore null and void. well, the particular wording of any declaratory is a matter ultimately for the court. doing justice in the circumstances of the case, i can suggest what it might mean but ultimately the court announces its interlocutor in appropriate terms but i say it's not enough to have it because in a sense one is harking back to the english lot difference to you don't pronounce coercive orders against the crown because the crown cannot be completed before its
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own crown cannot be completed before its own court and all that but you can get a declaration against an officer of the crown acting outside, its like them against the home office sort of thing that came up but we had this discussion in davidson against the scottish ministers, it's clear the older scottish approach which is it doesn't matter who you are, even if you are the king himself which is why james the sixth was so glad to leave scotland, you are called before the courts and accountable to them and you have to obey the rules. that's the traditional scottish approach which is being reaffirmed by davidson against the scottish ministers saying the policy of section 21 of the crown proceedings act 1947 is limited to private law claims and not public law. what is the paragraph in your case that indicates an aspiration to have a reduction? it's fairly early on because this challenge only came in ... tomorrow, because this challenge only came in tomorrow, could be be given the
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paragraph? yes. in my case don't waste time on it now, give it to us tomorrow. please. yes, my lord. thank you. anyway, many of these arguments were run and there is a transcript handily of the arguments iran transcript handily of the arguments i ran before the noble lord, if there's any suggestion that any of this is new. one point that i do wa nt to this is new. one point that i do want to highlight again is this internal issue about it's been suggested i think that parliament could have in the short period it had left to before prorogation had legislated against its prorogation. in some way instead of spending what
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little time it had on passing the blame act. because it didn't do that parliament was perfectly happy to be proved and it would be an intrusion if the court was to suggest otherwise. i'm sorry. the point that the act could affect the prerogative was one in which erskine may tells us it requires the queens consent to the bill. the government could have said if you try and affect the prorogation power we will not give the necessary sent to the bill before it gets through the whole process is a parliament and goes to royal assent. so they held all the cards in that regard and it is not
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in fact the case as was suggested that somehow this chord can draw an inference from the fact that parliament in this short time that it had didn't legislate against prorogation ordered against it. there was no suggestion i heard from anyone appearing for the government of course the government would have assented to any such bill had even thought to put before the house. erskine may is absolutely clear. paragraph 9.6. bills affecting royal prerogative require the queens consent, consent has been required for bills affecting prerogatives to dissolve, summon or prorogued parliament. so, that answers that. i mean, it was being suggested, again, i draw the analogy, the idea that
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parliament had four days, they passed one bill but they could have passed one bill but they could have passed another, it's like an arsonist coming into your house, the fire is raging in the kitchen and you try and put it out in the kitchen and then they say, you didn't do anything in the living room so you must have consented to being burnt down? there's only so much time people have today with fire fighting, to deal with a crisis and they dealt with it as best they could. prioritising what they could after a summer of negotiations and cross— party after a summer of negotiations and cross—party negotiations. these cross— party cross—party negotiations. these cross—party bills in the face of concerted government opposition are not easy things to pass. and this one passed by the grace of god. whatever the formularies, the law, spiritual, temporal, it happened and it was done but they certainly cannot say because they did not pass some cannot say because they did not pass some known prorogation act that they consented. let's just dismiss that straight off. so, i think i better
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some straight off. so, i think i better some up and finish. in a white man, before the full court, of 27 judges, in luxembourg, the president said this is our marbury against madison moment. what he meant was by that, it was the realisation that within the european union legal system this was a fully and properly constitutional moment. i say to this court, don't let this case be your dread scott moment. instead, stand upfor dread scott moment. instead, 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 the constitution governed by laws and not the passing whims of
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men. we've got here the mother of parliament being shot down by the father of lies —— shutdown. rather than allowing lies to triumph, listen to the angels of your better nature, and ruled that this prorogation is unlawful, and 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 which is corrosive of the constitution and destructive of the system of parliamentary representative democracy upon which our union is founded. enough is enough. distant missed this appeal and let them know that. —— dismissed this appeal and let them know that. that's what truth speaking to power sounds like. my truth speaking to power sounds like. my lords and ladies. thank you, mr
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o'neill, thank you. very well, we will now adjourn and resume at 10:30am tomorrow to hear some of the intervenors, and then the reply from lord keane and the reply from lord pannick. court is now adjourn. as you see, the supreme court reaches the end of day two of this three—day hearing into the question of whether the prime minister boris johnson acted unlawfully when he suspended all prorogue parliament for five weeks, and that was aidan o'neill, qc, this afternoon, who has been acting, representing those who brought the case of the court of session in edinburgh, which did say, which did say that the prime minister had acted unlawfully, and aidan o'neill asking the 11 judges here at the supreme court to uphold thatjudgment from
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here at the supreme court to uphold that judgment from edinburgh, and some that judgment from edinburgh, and some rhetoric there at the end, where he said to the judges they should stand up for democracy, that this government is unworthy of our trust, enough is enough, he said. well, let's get the views from two of our legal experts outside the supreme court about what we have been watching and listening to this afternoon. we've got drjoel grogan from middlesex university and stefan field from oxford university. at the end, yes, a plea from thejudges, stand up for democracy. is that the sort of language that the judges will take on board? it depends. i don't think in this case to be honest but it is very nice to close the circle on the introduction, which as we heard was also quite colourful, references to the carpet, to the symbolism around the supreme court. a bit lighter i think on the legal arguments in this case. we did get into the legal meat eventually but it took us awhile and i think we
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got there there were some from lines that i don't think were fully developed, but yes, it was an interesting presentation. one of his arguments was doesn't really matter how many days you suspend parliament for, it's what the effect of that is, and what the intent of that is. that's right, i think that was picking up on comments made by lady hale on the first day of hearings when she suggested imagines not be about these two intention the prime minister had but also about what that practically means. that parliament can no longer scrutinise what government does in terms of prerogative powers and ultimately it cannot have this motion of no confidence, should it want to bring down the government. joelle, that was the crux of aidan o'neill argument, that there is no accountability if parliament is shut down. they're exactly, in fact he kept returning to the same principle, which is the executive“ answerable to the parliament, that
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the executive is answerable to those mps, and this is somewhat of a difficult and different line then we saw yesterday with lord pannick, he is on the same side as lord pannick, to look at the politics of it, the effect of it, the fact that the parliament is being removed from this debate. to look more closely at that and somehow establishing and proving that motive. did you think aidan o'neill was effective in the arguments he was making this afternoon, from a legal perspective? from a legal perspective, i would perspective? from a legal perspective, iwould have perspective? from a legal perspective, i would have liked to have seen a lot more law. i know that he was reaching to principle, but i didn't see president and i didn't see cases. that may not be convincing to a court ofjudges, who are asked to look to the law and not to the politics. nowi mentioned what aidan o'neill said at the end there. he was saying "the mother of parliaments shut down by the father of lies". what do you make of that kind of language? colourful. i think
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lying is a bit strong, it requires intent and i don't think that is naturally necessarily something the judges will take into account. what thejudges want judges will take into account. what the judges want to know is was this lawful, should we be deciding this case, if it was unlawful, what the prime minister did, what remedies do you suggest we order in this case? and i don't think that really turns it one way or the other on whether it one way or the other on whether it was a lie or not. when the 11 judges are sitting in there, to what extent judges are sitting in there, to what exte nt d o judges are sitting in there, to what extent do you think they are persuaded? they obviously have huge legal knowledge, and they got long, legal knowledge, and they got long, legal careers and backgrounds, but are they persuaded by the advocacy that we are seeing in there, day after day? i know it is very tempting to see this almost as constitutional football, that these are the deciding moment, but in reality what we are seeing is almost a summation of thousands upon thousands of pages that we see in the room, and all the cases that have gone before, and the bigger, broader, political, philosophical
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legal questions facing the court. so it is not like barristers arguing in front of a jury who can be persuaded? exactly. this is why the questions are so important, and the questions are so important, and the questions we saw this morning... from thejudges? questions we saw this morning... from the judges? exactly, the questions from the judges give an indication as to what are the important questions, the important points we need to hear more about. so one—liners may be fantastic for tv but they may not be convincing to the judges. we will pause just for a moment and take stock and look back ata moment and take stock and look back at a really engrossing day here at the supreme court. with our correspondent richard lister. the queue outside the supreme court began just after dawn for day two of this constitutional showdown. the legal team for the business woman gina miller argued yesterday that boris johnson's gina miller argued yesterday that borisjohnson's suspension of parliament was unlawful, intended to deny mps a voice on brexit. today, it was the turn of the government's lawyer. good morning, sirjames. my
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ladies, lord's. non-justice ability, put simply, an issue on which the lord simply have no right on which to intervene,. it is a prerogative power that has been expressly reserved by parliament was that sir james said boris johnson reserved by parliament was that sir james said borisjohnson had broken no laws and having parliament prorogue, but that raised questions from the court. would you accept that the exercise of the power of proroguing parliament has the potential to affect or undermine parliament does 's ability to carry out its constitutional function of holding the executive to account?m definition prorogation, it is a point i will come back too, has the effect that it has. sirjames accepted it meant mps could not ask questions and legislation would be blocked, but that he said was all entirely legal. despite those features, this is a well established
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constitutional function, exerciseable and to be exercised by the executive. the high court in london has backed the government's view, but scotland's highest court unanimously rejected it, saying... the advice given by the government to her majesty the queen to prorogue parliament was unlawful, and therefore the prorogation itself is unlawful. the murky line between politics and the law is what the supreme court is now trying to judge, ina supreme court is now trying to judge, in a way which also protects the monarch. if there are constitutional principles that require to be released, and our constitution, isn't it more appropriate for the court to do it rather than for the queen to have to be sucked into what may be decisions with political ramifications? my lord, i think you may well be right, i may well be in a position of happily accepting that proposition. next came the prime minister's opponents to argue that mrjohnson suspended parliament to stop mps having their say on brexit. the
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present case, it appears 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. ata time government politically to account. at a time when the government is taking decisions that will have constitutional and irreversible impacts. and he said the government hadn't provided full submissions on the real reasons parliament was suspended. my lord reid is looking perturbed and upset. i'm looking sceptical about that suggestion. there is no reason to look sceptical, you can look upset, but 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
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government would engage in high politics, or would engage solely in high politics, as opposed to low, dishonest, dirty tricks. the decision to put cameras in the supreme court ten years ago was dismissed by some as iplayer for law students. the streaming service usually attracts around 20,000 hits a month. yesterday, though, 4.4 million people logged in to watch. the outcome of this courtroom drama will affect us all. richard lister, bbc news. yes, and as richard says, it is a courtroom drama that is going to have enormous implications, not only legal and constitutional, but political institutions as well. let's discuss what has been said this afternoon and this morning when the government put their case will stop we have robert craig and joelle grogan. you have been inside supreme
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court all day, some fascinating arguments this morning from the government, this afternoon on behalf of those who have successfully took their coat to the court of session in edinburgh and who are asking this court, the supreme court, to uphold that. a real contrast of styles between the morning and afternoon. the morning was much more technical come much more detailed on the legal issues and digging into those kind of areas. the government lawyer sir james eadie putting the government's case, saying in effect this is not for the courts to decide. absolutely, and there was almost a sense he focused so much on the law, precisely because the previous day lord pannick having put under some pressure by lord conran to come up with some legal authorities, and he had done busily liberty preface that with a lot of legal comments, so it meant that today it seemed to be obvious that ed was really hammering home the legal technical detail —— lord ed. the afternoon was a com plete lord ed. the afternoon was a complete contrast. the advocate
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o'neill, mr o'neill qc, tooka much more colourful approach. he was trying to appeal more to emotional arguments i would say, and the first 20 minutes was a romp around the square, in fact. 20 minutes was a romp around the square, infact. he 20 minutes was a romp around the square, in fact. he mentioned the four pillars, talked about the executive, the courts, legislature, but also the church, the westminster abbey, he talked about that of being a pontificating assembly and then defined it. here is gina miller coming out, the businesswoman who has been so central to this case. cheering and gina miller during some applause and some boos as well, always a mixed reaction. she was the key part of the case that said the government couldn't alone implement article 50, it had to go through parliament, and she is an integral part of this case as well. we are going to pause now with our coverage from the supreme
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court, we will bring you much more later on, but for the moment i will hand you back to the studio and simon. studio: let's move on to other news this afternoon. in the past 30 minutes saudi arabia has said that saturday's attack on its oil facilities was "unquestionably" sponsored by iran. at a news conference, the saudi defence ministry spokesman, said the attack hadn't been launched from yemen — despite efforts to make it appear so. it comes as president trump has announced what he described as "substantial" new sanctions against iran in response to the drone attack. let's hear some of that news conference by the saudi authorities. the launch site of the attack could not have originated from yemen, as the boxes in yemen, they have announced they are responsible about this attack. it doesn't go along with the yemenis value. this is not the yemeni people that they are just
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following the iranian regime or the irg sea and they are taking just an order and they want to just try to cover the terrorist attack conducted by the irg c. let's show you what president trump has been tweeting. iran already the subject of strict sanctions. he has also named an international security adviser to replacejohn bolton, that will be robert o'brien, who has had a long career in foreign policy with both when us parties and currently holds hostage the satiation is. we are talking to paul adams about almost of elements in the next ten minutes here on afternoon live. no other news. three teenagers have been charged with the murder of pc andrew harper. pc harper was killed while attending a burglary in berkshire last month. our home affairs correspondent,
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daniel sandford, is here with the details.... what do we know? you may remember that back in august there was a man charged with the murder of pc andrew harper, jed foster, he appeared in court and is due to go on trial at reading crown court in november but at the time police always said they we re at the time police always said they were still investigating. they had originally arrested ten men. well, today they have announced they have charged three further teenagers with the murder of pc andrew harper, two of them are 17, so they can't be named for legal reasons, but one of them is henry long, aged 18 from reading. so all three of those men who have been further charged with the murder of andrew harper will appear at reading magistrates' court tomorrow morning, will essentially be added onto the trial ofjed foster. a fifth man has also been charged today but not in relation to the murder, only in relation to the conspiracy to steal a quad bike, which the allegation is that is what the men had set out to do. many people remember because pc harper had only got married a few weeks
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before. one of the tragic coincidences, on his facebook feed the day he was murdered by the pictures from his wedding earlier that summer and he was literally about to go on his honeymoon the next week, when investigating the theft of this quad bike, he ended up being dragged under a car across the a4 and dying from his injuries. thank you very much, daniel sandford. british airways pilots have called off a planned strike at the end of the month. members of the pilots' union, balpa, were due to walk out for 24 hours on 27 september in a dispute over pay. strikes earlier this month caused disruption for tens of thousands of passengers with the majority of flights being cancelled. balpa says it retains the right to announce further strike dates. british politicians have dismissed luxembourg prime minister xavier bettel‘s attack over brexit as an "unfortunate media stunt". a podium set up for the uk's prime minister was left empty as mr bettel delivered an onslaught against mrjohnson's handling of brexit following their meeting in luxembourg on monday.asked
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whether mrjohnson's shared the view that it was a "media stunt", the prime minister's official spokesman said: "i will leave it for others to reach their own judgment on what took place." damian grammaticas can speak to us, we will go to him just a moment but adam fleming has this report first. this is one ofjean—claudejuncker‘s last trips to the european parliament before he retires next month. and he wants his legacy to be solidarity with ireland were not ditching them to side with britain. the european union has shown great unity of purpose. great solidarity with the member states most affected. this unity is our most precious resource and our greatest asset. it will continue to guide me over the next weeks, and i'm sure it will continue to guide this house
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also in the future. senior eu figures also use this as an opportunity to give a thumbs down to one of boris johnson's opportunity to give a thumbs down to one of borisjohnson's big ideas, which is to give more power to the northern ireland at northern ireland assembly at stormont before and after brexit. the backstop can also not be unilaterally handled by stormont, because that is not a safety net, but it will be a permanent instrument for blackmailing during the coming negotiations. translation: it is up to the uk government to ensure the support of the northern ireland institutions to the northern ireland institutions to the withdrawal agreement that would be signed on behalf of all of the uk. we are open to any uk proposal and are willing to work day and night towards progress. booing and the prime minister's chaotic trip to luxembourg earlier this week, where his luxembourg dish counterpart gave a conference without him, continues to
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reverberate. i would suggest events we have seen across europe this week do not indicate that good faith exists. i'm of course referring to the pipsqueak prime minister of luxembourg. i thought we should go and we should speak to the people and we should speak to the people and tell them to have respect to prime ministerjohnson, and tell them to have respect to prime minister johnson, and and tell them to have respect to prime ministerjohnson, and this was really my goal. when i see that people say i wanted to blame, to humiliate, i have to say this was really not what we wanted. i think the uk are our partners, our friends. but look how few meps came to the chamber to listen to this update this morning. there may be brexit fireworks at home and abroad, but there is boredom here. that was adam fleming. back to our developing story this hour — and saudi arabia has said that saturday's attack on its oil facilities was "unquestionably" sponsored by iran. our diplomatic correspondent paul adams is here.
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they say they have the pictures to prove it, as well. yes, that was quite a show and tell as well, lots of dave berry and shells from the 18 drones and seven cruise missiles they say were used in these two attacks on the facilities early on saturday morning. lots and lots and lots of references to iran's responsibility, in iranian expertise, equipment, no how. also saying it couldn't possibly have been done by the houthis, the yemeni rebels who claim they were responsible, saying crucially these attacks came from north to south. but equally crucially not saying who fired the weaponry and where from. they have yet to take the crucial step of saying we know these were fired from iran by iran, and for some reason fired from iran by iran, and for some reason they are not yet there yet. now the americans have essentially already said that, but for some reason the saudis don't quite feel ready for that rather decisive last step. well, because the implications, if and when they
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do, could be quite devastating. because that is a direct, deliberate attack by a neighbouring country, essentially an act of war. there was talk about proxies, and of course there are other proxies to the north, shi'ite militias in iraq, for example, but i think there is a growing feeling that, almost regardless of who pressed the trigger on these, the sophistication of the attacks was such that this had to be an iranian operation in all but name, and quite possibly an iranian operation period. and as you say, america doesn't seem to be in any doubt, and america has increased sanctions already. hard to know already what more there is to sanction out there but we will find out may be. and another thing i think has happened today is that the saudis have announced they are going tojoin this us led maritime security operation in the gulf,
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obviously in response to the stuff early in the year with the attacks on tankers. but a crucial question is looming, it is the one mike pompeo will address when he meets the saudis in saudi arabia later today. if this was an attack by iran on saudi arabia, is clear is that, then what responsibility to saudi have, what responsibility do the americans have, is anyone ready for a full—scale shooting war in the guh? a full—scale shooting war in the gulf? something that would be clearly of enormous consequences. remember, when the last opportunity for donald trump arose when the iranians shot down an american drone in the gulf, he stopped short, and that was an attack on iranian equipment. donald trump has only said this was not an attack on the united states, this was an attack on saudi arabia, it's their responsibility. there is a lot for them to talk about. ok, thank you very much, paul adams. let's go back to the supreme court —
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where the hearings into whether borisjohnson acted lawfully in suspending parliament have continued today. ben brown is there. we have come to the end of day two of this three—day hearing, effectively into the question of whether the prime minister acted unlawfully when he probed or suspended parliament for five weeks, and those hearings have been continuing. this afternoon we have been hearing from aidan o'neill, qc, representing those who brought the case at the edinburgh court of session, which did say that mrjohnson had acted unlawfully, and among those he has been representing, joanna cherry, the snp mp and gillian moore who was with me as well. quite a lot of rhetoric we had at the end, at the end of mr o'neill cosmic address to the 11 judges, saying the mother of parliament has been shut down by the father of lies. some of our legal experts were saying actually the 11 judges here might not respond to that of rhetoric, they respond to
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legal argument and precedent. what you have to remember are two things, the first is that the job that david pannick did was the fine democratic work, that does not make sense for aidan o'neill to do that again. what aidan o'neill to do that again. what aidan sought to do was to show the court what really is at stake here, and i'm very, very pleased he did thatjob. and i'm very, very pleased he did that job. what do you say, joanna, to those in the government's side, that actually this isn't really a matter for the courts at all, this isa matter for the courts at all, this is a matter of politics, proroguing parliament, it is pure politics, not a matter for parliament, it is pure politics, not a matterfor a parliament, it is pure politics, not a matter for a court parliament, it is pure politics, not a matterfor a court of law?
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i note that the government have rather backed off from that position as the case has developed, at least in court, but i would say what the scottish court said to them, lord drummond young said, it is not for the judges to politically scrutinise the judges to politically scrutinise the government, that is the job of parliament, but when the government suspended parliament then judiciary can step in to address the issue and what has become very clear this afternoon in the course of aidan's submissions is this case is about rebalancing submissions is this case is about re balancing the constitution submissions is this case is about rebalancing the constitution and putting parliament back into the position to do the job that we as parliamentarians are elected to do. i think it was also very interesting so many of the supreme court justices were very focused on the issue of the lack of candour from the british government about the reasons for the prorogation. they pressed james ed, qc, reasons for the prorogation. they pressedjames ed, qc, the reasons for the prorogation. they pressed james ed, qc, the for government on this morning, and he said the reasons are what they are in the memo, lord kerr pointed out that nikki da costa's memo reads more like lines of defence if the prorogation were challenged and the actual reason for the prorogation. if this call goes your way, the 11 judges whenever they come up with their reading, if they say the prime
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minister has acted unlawfully, what happens then to parliament? parliament has to sit again. the effect of the court's decision will be that parliament was never lawfully probed, parliament has as it were taken and extended break at the moment it should be sitting. the debate about remedies is terribly interesting because what it shows you is the court is trying very hard to depoliticise the situation. it doesn't want to be put in a position where it has to order the government to do something. it wants the government to concede that if its actions were lawful, the right thing for the government to do is to allow parliament to sit again. now there was a suggestion yesterday to lord keane, the government's lawyer, actually what if the prime minister then prorogue parliament again? in other words, parliament comes back and he simply suspends it again?” noticed lord keane rather ducked that question which i think is quite
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telling. but remember the scottish court said it was clear the government lawyers had been kept in the dark by the government as to what they were up to, so in fairness of lord keane, he may be in the dark as to borisjohnson's plans. but i think it is telling asjoleon as to borisjohnson's plans. but i think it is telling as joleon says, that the courts are very interested and they are keen on finding a remedy that will be respected by everyone concerned. generally speaking i don't think our court would be worried about the government respecting a court order but clearly given the rhetoric of borisjohnson it is perhaps at the forefront of the supreme court justice's mine. thank you very much for being with us at the end of day two. much more analysis later here on bbc news. from the supreme court, back to simon. studio: the labour leaderjeremy corbyn has repeatedly declined to say which position he would support in a second eu referendum, after outlining his plan to hold a further public vote in a bid to prevent
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brexit. vicki young is in westminster, i don't know why i am talking to you, because you tweeted earlier that you we re because you tweeted earlier that you were confused! some of it is clearer, the clear element of labour's policy, because you know there has been a huge row within the party going on for more than a year. a year ago at labour's conference there was a pretty big bust up as some there was a pretty big bust up as some in the shadow cabinet were trying to pushjeremy corbyn further down the road of promising a referendum on brexit. so that has happened. so the clarity there is that labour will go into the next election promising a referendum on brexit, and there will be two options on that ballot paper. this is howjeremy corbyn explained it a little earlier. i want the people to have a choice between the offer of remaining in the eu and the offer of an agreement with the eu, which will give us a trade relationship, which will give usa trade relationship, which will give us a customs union, will give us rights, consumer rights, workers' rights, consumer rights, workers' rights and environmental standards. that is a credible choice, and my
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job as prime minister would be to deliver that option is chosen by the british option. and which option do you prefer? i think the important thing is to put the offer before the people and they will make the choice andi people and they will make the choice and i will deliver it. i will credibly present the options and say this is the option, you can remain, possibly with some reforms to the european union, or you can leave but you will be living on these terms. so that is where the uncertainty still remains, willjeremy corbyn, who would at this point be prime minister, because he will be promising and implementing that referendum, will he take a side, or will he stay neutral? now there will be some in his party and i'm sure this will be agonised and argued over at their conference next week to say labour then has to campaign for remain, and they would want jeremy then has to campaign for remain, and they would wantjeremy corbyn to do they would wantjeremy corbyn to do the same. so that is the unknown, which will be argued about no doubt in the coming weeks. let's move on to borisjohnson. he
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went to a hospital in north—east london but things didn't go quite according to plan. see what happened. there's not enough people on this word, not enough doctors, not enough nurses. the nhs is being destroyed. it's being destroyed. it's being destroyed and now a press opportunity. actually, there is no press here. what do you mean there no press here? who are those people? that's there no press here? who are those people ? that's not there no press here? who are those people? that's not going to fix things. it's a bit late, isn't it? years and years and years of the nhs being destroyed. and you are telling me there are no press here? there are no press here? mrjohnson indistinct. so you didn't invite the press here? you did not invite them?
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ok. press here? you did not invite them? 0k. fine. you are in la la land, believe whatever you want. thank you. that father, he has tweeted about this, what else is emerging? that's right. he has a sick child at the hospital, clearly very upset and concerned about the care, you heard him they're talking about a shortage of staff for example. a very bizarre moment, the prime ministers said there are no press here even though there are no press here even though there was certainly one camera crew there, arranged by downing street on a pooled basis, there was an agency reported there as well, they're clearly more press around, was rather odd and it has emerged and if you look at the twitter account of the father, he is a labour party activist, he worked for emily thornbury ate a few years ago, the shadow foreign secretary but some people will say that is irrelevant, it doesn't mean that his views are not valid, he is still concerned
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about it and it comes after a number of occasions where borisjohnson who has been out and about campaigning around the country has been heckled, he was told to leave my town when he was in morley, he was told to get back to parliament in brussels to negotiate and he was also accosted bya negotiate and he was also accosted by a woman in doncaster. that was interesting, it was similar to this ina interesting, it was similar to this in a way. she was worried about austerity and her point of the time was to say you are putting more money into the police but you'd already taken the money out of it and that was a similar point to the one being made, it's all very well promising more money now but saying to borisjohnson your conservative government had previously cut back on things. ok. thank you so much. let's get a look at the weather. that is with susan powell. hello. enquired whether story across the uk for the coming days. at one significant change by the end of the week and the start of the weekend, you will feel it rather than see it,
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it's turning considerably warmer. a lot of settled weather as we look at thursday and friday and into saturday thanks to high pressure. the high—pressure meaning clear skies across central and southern swathes of the uk overnight and temperatures could dip down to two or three degrees. the legacy of cloud across northern scotland following on from the warm front that brought wet weather through wednesday. the rate pulling away toward scandinavia through thursday, sunny spells developing across scotland, much warmer, 18 in aberdeen, sunshine further south, looking at highs of 2122 across southern england and south wales. warmer still on friday. perhaps 24 in the north—east of scotland, the heat peaking on saturday, up to 26 perhaps in the south. this is bbc news — our latest headlines. the supreme court has been hearing arguments over whether the prime minister acted legally when he
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suspended parliament. his lawyers say it's not for the courts to decide. it would not be constitutionally appropriate for the courts to seek to do so. that is because the exercise of a particular power as appropriate for political, not judicial resolution and control. the lawyer for the snp mp joanna cherry, who brought the scottish challenge to court — has argued that suspending parliament means there is no constitutional accountability for the government at a crucial time. saudi arabia has said that saturday's drone attack on its oil facilities was "unquestionably" sponsored by iran. donald trump has today ordered new sanctions on iran. three teenagers are charged with the murder of police constable andrew harper — who was killed in berkshire while investigating a burglary last month a strike planned for next friday by british airways pilots in a dispute over pay has been called off. the pilots' union balpa said
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a 48—hour walkout earlier this month had demonstrated their "anger and resolve" — sport now on afternoon live with olly foster. the fallout of coach rob howley‘s departure from the wales world cup the wales world cup party continues. every team at the rugby world cup have been given a briefing from the sports inegrity unit reminding them of what they can and can't do, they have been told to switch their phones off at least an hour before games, at the last world cup there were six cases of suspicious approaches to players and coaching staff.
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we don't know the exact details of why rob howley has been sent home, we know there is an investigation into alleged breaches of betting regulations. every team within the sport knows that, all the players and coaches know you are not allowed to bet on rugby. wales boss warren gatland says he is "shocked" that backs coach how his successor sergei lavrov has joined them early, they are due to ta ke joined them early, they are due to take on georgia on sunday. we can hear from warren gatland. the union are dealing with this, my focus has to be on the next five days in terms of preparing the squad, you have to deal with adversity at times, release key players, it has to be said key players in the next few
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hours have stepped up, they've been responsive and resilient, sometimes it brings teams closer together, we have to draw a line in the sand over this. that's what warren gatland is hoping but you cannot ignore the influence that rob howley has had on that team. he's been involved in four six nations triumphs in a coaching capacity, let's talk football. more action in the champions league tonight. defeat for liverpool and cheslea last night in their first group stage matches, we'll see all the other teams in europes elite competition tonight, last season's finalists' — spurs — are in athens against olympiakos. fixtures are not staggered. theirs was an earlier kick—off, 5:55pm. i will have to find myself a hostelry
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for that after this bulletin. tottenham manager mauricio pochettino says it's been a difficult summer after that defeat to liverpool in madrid if you see last season, some months ago, we played the final of the champions league, it's normal that people think that maybe priority before the game, tottenham is one step over libya because and then i explain the same. you need to show on the pitch. —— over olympia course. spurs knocked knocked manchester city out in the quarterfinals last season, they are taking on shakhtar donetsk in ukraine. the premier league champions should be favourites but they are in the middle of a defensive crisis. john stones has been ruled out for up to five weeks with a muscle injury, leaving them with just one fit recognised centre back, nicholas otamendi. football is how you handle notjust
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the good situations but the bad one. we won in the last two seasons, seven titles. and we are going to do it again. that is what and where it is. the former rangers player fernando ricksen has died at the age of 43. the dutchman, who was capped 12 times by his country, had been suffering from motor neurone disease. he made over 250 appearances for rangers in a six year spell and won two league titles europe's captain padraig harrington has named robert karlsson as the first of his vice—captains for the 2020 competition at whistling straits. the swede had the same role in paris last year as europe regained thetrophy. karlsson made two ryder cup appearances as a player, he was a winner at the k club in 2006 and he also tasted defeat at valhalla two years later.
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that's all the sport for now. simon, i'm out of here. all the best for the rest of your show. that was nice of him! now on afternoon live — let's go nationwide — and see what's happening around the country — in our daily visit to the bbc newsrooms around the uk. look north's ian white is in leeds — he'll be talking about the launch of the first gambling clinic in the uk outside of london... we will be with you very shortly. and from reporting scotland in glasgow we have sports reporter alasdair lamont — he'll be telling us more about the death of former—rangers player, fernando ricksen. first to ian, a new nhs treatment service based in the north of england is being introduced for gambling addicts for the very first time. the first time outside london? that's right, simon, i wonder if you like a little flutter every now and then? for most people it's just a little bit of fun but for a huge
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amount of others' gambling is very, very serious. it can be a very serious if not life—threatening problem. the gambling commission estimates there's about 340,000 people with a gambling problem across great britain with another 2 million people at risk of developing one. the research shows 40,000 people in leeds alone are affected by the problem of gambling with rates in leeds in similar areas likely to be twice the national average. unbelievably until now the nhs treatment centre for this for the whole country in fact was just in london. now though nhs england is bringing the service to serve the whole of the north of england with basesin whole of the north of england with bases in leeds, manchester and sunderland. this news has been welcomed by kay, her daughter kimberly took her own life injune last year at the age of 32 after struggling with gambling addiction and debts of £36,000.” struggling with gambling addiction and debts of £36,000. i gave her 36,000 so she could pay off gambling debts and she didn't pay it off,
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didn't pay off a penny and she just gambled it all away within two weeks. and i became homeless. and we'll be hearing from k and indeed from other people affected by this terrible problem on the programme tonight at 6:30pm. the nhs by the way believes there are increasing evidence, there is increasing evidence, there is increasing evidence of a link between problem gambling and stress, depression and other mental health issues. the key of course is that if you are worried about this problem and you are watching, the first thing to do is get help and perhaps visit your gp. ian, as you say, plenty more later on tonight. thank you. and alisdair, what has been the reaction to fernando ricksen's death? a huge story for you tonight. simon, absolutely, at death that in many way has been expected here but it doesn't make it any less sad. for the many people who have been
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affected by him over the course of his time in scotland. clearly, the vast support for rangers football clu b vast support for rangers football club feeling this today but to be honest, his death has transcended scottish football and society as a whole, tributes pouring in certainly from the scottish football community, all of the teams within the premiership appear have been passing on their condolences via social media, largely. a couple of his former rivals at celtic, including john hartson who for their own including john hartson who for their own serious battles with cancer, they survived, they have been on social media also paying tribute to theirformer social media also paying tribute to their former foe, social media also paying tribute to theirformerfoe, i social media also paying tribute to their former foe, i suppose, social media also paying tribute to theirformerfoe, isuppose, on social media also paying tribute to theirformerfoe, i suppose, on the football pitch but a guy, the disease, when he was diagnosed in 2013, clearly went beyond football and of the animosity. also tweets of
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condolence, a former player, michael moles, a team—mate at rangers football club, on the flight from rotterdam earlier today and i caught up with him at glasgow airport and asked him for his reaction. of course, it's a real shock. but we knew it was coming. hopefully he will find some peace now. it was a ha rd will find some peace now. it was a hard struggle. he was fighting every day. 0nly hard struggle. he was fighting every day. only this time he lost the battle. reaction there to the passing of fernando who fought a six—year battle with motor neurone disease, finally succumbing this morning. over the course of the six yea rs morning. over the course of the six years he did a of work, raising money for charity, raising
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awareness, a mark of the man that he was and will have more on the programme later this evening. thank you so much for that. and ian, in leeds, thank you. gentlemen, thank you, that is nationwide this evening. if you would like to see more on any of the stories you can access them via the bbc iplayer. a reminder, we go nationwide every weekday afternoon at 4:30pm. an 80—year—old women has been found not guilty of murdering her husband who had terminal bowel cancer. mavis eccleston was accused of killing 81—year—old dennis with a lethal dose of a perscribed injection, without his knowledge, at their home near cannock. jurors at stafford crown court were told she took an overdose but survived. mavis eccleston's family welcomed today's vedict. our mum did not wish to live without
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him, her husband, the love of her life and so, she took an overdose together with him. they were found by family members and taken to hospital where dad died a day later. our parents love for each other was so clear that hospital staff push their beds together so that mum and dad could hold hands and face each other during dad ‘s final hours. our family are grateful and relieved that the during this case could also recognise our mum ‘s love for our dad. but since dad ‘s death, our family has been through a terrible ordeal, waiting for 18 months for this court case, worrying that having already lost our dad to cancer, we might not see our mum, we might see our mum imprisoned. we do not believe this needed to happen. if there had been an assisted dying
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law in the uk art dad would have been able to have the choice to end his suffering with medical support. and with his loved ones around him. he would not have asked our mum to do something that is considered breaking the law. in a moment ben bland is going to bring us the latest business news. first a look at the headlines on afternoon live the supreme court has been hearing arguments over whether the prime minister acted legally when he suspended parliament. the lawyer for the snp mp joanna cherry, who brought the scottish challenge to court — argues suspending parliament means there is no constitutional accountability for the government at a crucial time. saudi arabia has said that saturday's drone attack on its oil facilities was "unquestionably" sponsored by iran. donald trump has today ordered new sanctions on iran.
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three teenagers are charged with the murder of police constable andrew harper — who was killed in berkshire while investigating a burgalry last month here's your business headlines on afternoon live british airways pilots have cancelled a strike scheduled for the 27th of september. 48 hours of industrial action earlier this month grounded almost all the airline's flights in a dispute over pay. the british airline pilots' association balpa said, "someone has to take the initiative to sort out this dispute". its general secretary said the union retained the right to announce further strike dates. average prices for goods and services rose more slowly in august than injuly. inflation came in at 1.7% in august compared with 2.1% the previous month. a drop in the price of computer games brought down the average. clothing prices were also slow to recover from the summer sales. uk house prices rose at a slower rate in the year tojuly than at any time since september 2012. they went up — on average — by 0.7%.
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the office for national statistics said there had been general slowdown in uk property price growth in the last three years — particularly in london and south east. the biggest drop in the last year was in the north east of england. some relief that the british airways strike is off. especially for anyone caught up in disruption, the two days of disruption happened earlier this month. 1700 flights cancelled, 195,000 passengers hit by that, the fa ct 195,000 passengers hit by that, the fact that british airways pilots have called off the strike scheduled the 27th of september will come as a relief for anyone planning to travel. despite the fact they've been e—mailed to say their flights have been cancelled. british airways started doing that two weeks ago, that way the airline avoids the need to pay compensation, a company spokesman said the decision had been made to give customers as much certainty as possible, passengers
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being offered a full refund or the option to book with an alternative airline or book on an alternative date. the airline had previously estimated strikes would cost at something like £40 million every day, it's going to try and reinstate me understand most of the flights or as many of the flights that were cancelled on the 27th. but it can't say whether all of them will be reinstated. our understanding is that british airways will go through the schedule and will contact passengers booked to travel and let them know one way or the other. as them know one way or the other. as the row been resolved? in a word, no. this is all to do with the dispute over pay, between ba and its pilots. the pay offer that the airline offered them was 11 and a half percent increase over three yea rs half percent increase over three years but pilots rejected it, their union said members had taken lower pay union said members had taken lower pay rises and accepted having to ta ke pay rises and accepted having to take more sacrifices during more stringent times for the airline in
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recent yea rs. stringent times for the airline in recent years. but they insist to be a financial position is much better, it's seen greater profit growth and so the pilots want a share of that increased profitability. ba says the pay increased profitability. ba says the pay offer is fair and generous, they say it's been accepted by cabin crew, ground staff and engineers unions. the british airline pilots association has said although it's called off the next strike it retains the right to hold further strikes stop ba not the only airline news around. it's a big name in the aerospace sector. airbus saying today its global aircraft fleet will double in size by 2038. but it can meet carbon neutral growth targets by using more fuel efficient planes. our business correspondent has been speaking to the chief commercial officer. uncertainty is precisely
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that, we don't know. to some extent it isa that, we don't know. to some extent it is a worry but the real question is with our foothold here, with our footprint we have 13,500 people, 6 billion worth of business in the uk, we are a uk citizen, today we are quite happy. the industrial system works, it contributes well. if brexit shoot or aid no deal brexit should result in a less competitive ability to do business here, then yes, we would have to draw those consequences, wouldn't we? airbus chief commercial officer there. let's round off some of the other main market news. let's speak to craig earlham, senior market analyst at wonder. i want to pick up on the ba story, the strike being cancelled, the share price getting a bit of a lift from that. it's
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getting a little bit of a lift but nothing too substantial. we have to rememberthe nothing too substantial. we have to remember the strikes haven't been cancelled, effectively delayed while further negotiations take place. as you stated earlier this is something that comes of a great cost to ba, the potential for the hikes in wages would cost around 50 million over three years. these strikes everyday cost around 40 million as you've alluded to, it makes no sense the ba perspective do not engage in more negotiations with the union and try and come to a resolution and the idea that we could be moving towards that kind of scenario is beneficial but the share price, not as beneficial as it would be if they we re beneficial as it would be if they were cancelled altogether. extending the airline analogy a bit of turbulence as far as inflation figures are concerned, surprise drop really. but still, people not expecting the bank of england to do anything, not to cut rates this week? if i was the bank of england i'd be very much waiting until the end of october, i would want to give the economy a big shot in the arm in the economy a big shot in the arm in the event of a new deal brexit
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rather than staggering it over a couple of months and it has limited space when interest rates are already as low as they are. we got to remember this is a one of the figure, comparable to last summer when we saw a bumper summer in terms of sales and we are therefore seeing a detrimental impact right now but really inflation is running around targets of this new urgency to the bank of england to do anything this week. meanwhile, many analysts saying over the other side of the atla ntic saying over the other side of the atlantic the us economy is soaring, got fairly record low levels of unemployment. the indicators are positive. and yet, the expectation is that within the coming hours will we will see the us central bank cut interest rates and that has a ripple effect for the rest of us including here in the uk, doesn't it? yes, the federal reserve is the us central bank but in many people because guys its the world 's central bank because of the reliance on dollars. other central banks are cutting rates all around the world and people are looking at the federal
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reserve and suggesting they need to follow suit. a trade war with china has created great economic uncertainty and it's starting to show in some of the data on over there even if many of them are still extremely strong. the us dollar is extremely strong. the us dollar is extremely strong, detrimental to the economy, something interest rate cuts help alleviate and the trade war isa cuts help alleviate and the trade war is a massive economic headwind for the us as well as china and others so i think these interest— rate others so i think these interest—rate cuts are trying to nip it in the blood early and try to create a support for consumers, households and businesses that many fear is going to be needed. ok, craig, thank you. have you got time for a look at the markets? yes, we have come a quick glance. markets across europe ending the day not really having moved very much, fairly flat, investors moving cautiously, taking a bit of a wait and see approach until they hear what the us federal reserve decides to do and the guidance that it gives after that interest rate decision.
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sterling meanwhile slid, fell a little against the dollar. that's after the inflation data that showed an unexpected drop and on the oil markets, on has fallen after the record gains that we saw towards the start of the week, this is after news that saudi arabia is expecting to get its oil refineries, back up and running, back online earlier than expected after the strikes on it at the weekend. thank you. pleasure. hugh edwards is here with some more news. at first, susan with the weather. one significant change for the end of the week and the start of the end of the week and the start of the weekend, when you will feel, rather than see, turning considerably warmer. a lot of settled weather, as we look at thursday and friday, into saturday, high—pressure, clear skies across
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central and southern swathes of the uk and in frost hollows, it could dip down to two or three degrees. the legacy of cloud across northern scotla nd the legacy of cloud across northern scotland following on from the warm front that brought wet weather in through wednesday. the rain will pull away toward scandinavia through thursday, sunny spells developing across scotland, much warmer day, up to 18 degrees in aberdeen, the sunshine further south, looking at highs of 21 or 22 across southern england and south wales. warmer still on friday. perhaps up to 24 in the north—east of scotland, the heat peaks on the north—east of scotland, the heat pea ks on saturday, the north—east of scotland, the heat peaks on saturday, up to 26 perhaps in the south.
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today at five: saudi arabia now says it can prove that iran was behind the recent attacks on two oilfacilities. the saudi defence ministry have displayed what they say is wreckage of drones and cruise missiles that prove iranian involvement. the attack was launched from on the north and it was sponsored by iran. but iran has denied any involvement and warned it would retaliate against any military response. the other main stories on bbc news at five: a second day of argument in the uk's highest court

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