A second day of the blockbuster Supreme Court hearing on Boris Johnson's suspension of Parliament has drawn to a close.
It was no less fascinating than the first. Scottish advocate Aidan O'Neill, acting for the claimants in Scotland, took a decidedly more colorful and less forensic approach than the the one employed on Tuesday by Lord Pannick, his English counterpart, deploying references to everything from Shakespeare to Braveheart to the pattern of the carpet in the chamber.
Earlier, government barrister James Eadie was more measured, concerning himself with the central question of justiciability; namely that the prorogation of Parliament is a political decision that has no business in the courts.
By any measure, Eadie had the rougher time – the judges pressed him hard on whether the Queen could have said no to Johnson's request to suspend Parliament. And he came under considerable pressure over why no senior member of the government, beyond the Treasury solicitor, had provided sworn statements in the case.
But it would be unwise to draw any inference from the questioning – UK Supreme Court justices are notoriously inscrutable.
The court will return on Thursday morning for a third day of arguments and a decision in the case could come towards the end of the week. But, given the complexities of the arguments and the fact that two appeals are being heard at once, judges may need more time to deliberate.
So how will it go? Only a fool would make a prediction, but, broadly speaking, there are three paths they could take.
- Uphold the London ruling: In this scenario, the Supreme Court would side with the High Court decision that prorogation is in all cases a political matter, and not one that can be ruled on by the courts. This would be a big win for Boris Johnson's government, and could set a significant precedent that limits the role of the judiciary in British democracy.
- Uphold the Scottish ruling: This would mean agreeing both that the courts have a role in reviewing prerogative powers, and that Johnson's exercise of them in this case was unlawful. That would be a huge blow for the Prime Minister, as it would essentially rule that he had lied to the Queen. The Supreme Court would find itself at the center of a bitter and undoubtedly ugly argument over whether the justices had overstepped their powers.
- Land somewhere in the middle: If they wished, the justices could take elements of each ruling. They could accept the argument that courts can in principle rule on matters such as prorogation – but that Johnson's government had acted lawfully in this case. That would essentially be a warning shot to future governments that if they try to limit the supremacy of Parliament in a more egregious way, the courts could step in.