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 dont 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 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 oneill, 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 oneill 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. Lets listen to his case. Distance lends perspective, lends discernment. Sometimes it might lend disenchantment. So what i 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 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 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 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 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 persons 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 partnerss 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 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 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 isnt even passed, its ireland and wales, the past isnt even passed, its here and now. For example, when the parliament was proved by the lords 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. Thats slightly odd, you would think, singing a song about a battle in 1314, penned by robert burns, 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 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 hadnt 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 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 whats 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 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 courts 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 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 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 oneill, that we might dismiss the governments appeal, in your case, and dismiss lord pannicks appeal in mrs miliks case . And dismiss lord pannicks appeal in mrs miliks 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, 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 thats why im not going to address what english law is about, im 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 im trying to underline here, as this court acting as a Constitutional Court will be well aware, that we live in a union state. We dont live in a state of uniformity. We dont describe this asa uniformity. We dont 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. And of course weve got macbeth, erroneously called the scottish play. Its the british play. Its written at a time, its 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. Thats 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 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. Thats 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 its 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 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. Dont presume that. 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. 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 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. Weve got a statue of Oliver Cromwell standing before parliament, a signatory of the death warrant of childs the first charles the first. And whitehall, its 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 thats ok, it wasnt a dictatorship, it was a protectorate. It was looking after you, as long as you werent 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 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 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. And no doubt you are going to turn to those issues . Right now. Right now. That was just the credits. So, yeah, lets 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 mag