What you are saying but others will say all of this is such a great area because of our unwritten constitution. We dont know exactly where we do stand and its a question of balance of powers between parliament and the government and the courts, but it shouldnt be this unpredictable in a sense. I agree it shouldnt be unpredictable and it wasnt unpredictable. The law does not permit judicial unpredictable. The law does not permitjudicial review of the prerogative to Prorogue Parliament. It is subject to political control. That leaves space for a serious political controversy, a disagreement between mps and the Prime Minister and eventually there has two. We will have to leave it there because we are back inside the Supreme Court. Lets listen to the governments representative here. Supreme court. Lets listen to the governments representative herelj paraphrase of course from the opinion of hodge in the case of her goal. Mark reference has been made to constitutional principle. Constitutional principle may embrace legal rules but it may also embrace the convention. Convention that is not amenable to enforcement in a court of law. And an example of that was seen in miller one in reference to the convention which was expressed in statutory form but nevertheless remained a convention. In orderto nevertheless remained a convention. In order to proceed under the heading of constitutional principle, there has to be an element of legal content and if you take the example that was cited by mr fordham of the unison case, there one could clearly identify the legal right of access tojustice and identify the legal right of access to justice and therefore rely upon that in order to determine the declaration of a rights and enforcement of a right. Here we have reference to what is termed parliamentary accountability but what legal content is that concept actually embrace . As distinct from its practical and factual content. Ultimately, what this court is being invited to do is to control the length of the prorogation of parliament. As exercised under the prerogative. The length of each session of parliament and the frequency between sessions is regulated by Constitutional Convention and not by the door. And of course that was not always the case because very early on, parliament enacted the triangle act which determined parliament could not be prorogued within 50 days of it having been summonsed. And then in the act of 1664, that provision was repealed. Expressly on the basis that it was in derogation of the exercise of the prerogative with which we are concerned. And since then parliament has not sought to legislate generally in respect of prorogation. Having had an opportunity i more than 300 years to do so. Of course it has legislated in orderto do so. Of course it has legislated in order to determine that in certain occasions on certain times it should not be prorogued. But will be recalled and the most recent example which has been repeatedly referred to with Section Three of the Northern Ireland executive formation. There have been efforts to distinguish the exercise of dissolution from that of prorogation. Dissolution has been repeatedly identified as forbidden territory for the courts. It is not just a civil. And yet the distinctions that have been drawn between that and prorogation are far more apparent than they are actually real. In respect of dissolution, of course parliament cannot be recalled. And there will ultimately be an election. Following that election of course its provided by the act of 1694 that parliament might not be summoned for a period of up to three years. Even in the period from dissolution to election and ill come on in a moment to look at that period, the executive would remain in place and indeed would remain in place and indeed would remain in place during the period when parliament had not been summoned following an election. Of course we now have a decision by parliament to regulate dissolution by primary legislation, the fixed term parliaments act. Under the terms of that act and the periods are quite instructive i will suggest, the period between dissolution and an election must be 25 working days or 35 calendar days. During which time the executive will clearly not be accountable to parliament. And there it will be for the executive in that exercise of prerogative powers to determine when parliament will actually be summoned. Now in respect of prorogation, it is clear that political purposes may very well prevail over any formal purpose or requirement for prorogation of parliament and we have seen many instances of that over the years. If in the event of prorogation Parliament Takes exception to that course of action, it has a very clear route to adopt. It may, following the prorogation to which it took exception or in anticipation of the prorogation which has not begun because that would be the instant case, at the beginning of september of this year, move a motion of no confidence in the executive. In such a motion if move by the leader of the opposition would be heard. So if it has noticed, as it did have, that it was to be prorogued for a period that it took exception to or at a time to which it took exception, it was perfectly free to move a vote of no confidence. What if it conceives that was not to its political advantage. The lord makes the very point i was coming to. Forgive me, lord keane. That is precisely the point. It is then the determination of political advantage as to whether or not such a motion is made and indeed the same can be said about the ability of parliament to move a motion in terms of the fixed term parliaments act in such a motion was of course moved in anticipation of the prorogation but the opposition chose to abstain. Again an entirely political act. They did not wish to go to the country. They did not wish to go to the people. We have had the suggestion that dissolution is different because the executive is then answerable to the people. Well, by way of prorogation again the executive may very well be answerable to the people of Parliament Takes exception to the prorogation that has been proposed. Sol prorogation that has been proposed. So i respectfully suggest that the attempt to draw some distinction between the justice ability of the dissolution of parliament which of course prior to the fixed term parliaments act would be determined asa parliaments act would be determined as a political act essentially, and that of the exercise of the prerogative of prorogation is simply not worth the of any detailed examination. The results may very well be the same, the Political Considerations of all sides of parliament are bound to be very similarand the parliament are bound to be very similar and the act of the executive can always be the subject of scrutiny ultimately by the people in the form of an election. Should parliament choose to adopt that route but as lord kerr observed, they may decide that it is not politically convenient for them to achieve that consequence. So that is where we stand so far as the issue ofjustice ability where we stand so far as the issue of justice ability is where we stand so far as the issue ofjustice ability is concerned, whether it be dissolution or whether it be the prerogative of prorogation, this is forbidden territory. It is a matter between the executive and parliament and if Parliament Takes exception to the executive they have the tools available to address the matter. If they choose not to employ those tools, that is a political matter, it is entirely up to them. And i just add this one further point, how in the context of that political minefield is the court to opine on theissue minefield is the court to opine on the issue of purpose or improper purpose or legitimate political purpose or legitimate political purpose or legitimate political purpose or illegitimate political purpose . How are these concepts to be defined and applied in this context . In my respectful submission, the applicants and the petitioners are inviting the courts into forbidden territory and into what is essentially a minefield. An ill defined minefield but the courts are not with the greatest of respect properly equipped to deal with. Can i turn from there to some of the particulars of the appeal in the case of cherry . And the first point i would wish to make is simply this. It may be noted by the court already. In his submission, stone neil made no attempt no attempt whatsoever to respond to the criticisms that i had made of the reasoning of the inner house or indeed to defend the particular and inconsistent approach taken by the inner house in the determination of that case. And in my submission, the reasoning for the reasons are on the grounds i set out before is unsustainable and it must follow that the issues in that case are for this court to determine. Which they may do properly by reference to the documents. I should also notice the suggestion from mr oneill that a concession was made in the inner house about justiceability. I was not present in the inner house but i have the opportunity to speak to mr johnson and mr webster who were present and also to look at mr websters notes. They do not consider that any concession was made but if it was, it is hereby withdrawn. So if i could make that clear with the permission of the court. On cue that clarification. One always precedes on the basis that if something is stuck sternly obvious, a concession is not required and if it is not stock stirringly obvious, a concession is not appropriate. Now, furthermore, my learned friend mr fordham suggested that sir james my learned friend mr fordham suggested that sirjames eadie had made a concession as to justiceability but again i take exception to that. If parliament has by primary legislation sought in any way to determine when or whether the prerogative of prorogation should be exercised by the executive, then of course this court is entitled to interpret and apply their primary legislation, but i suggest that gives no doorway into the general issue ofjusticeability of the prerogative power of prorogation. So i would seek to put that point as made by sirjames into its proper context. Turning very briefly to the issues that arise if this court now has in hand the appeal itself, i simply urge this court to do as the lord read suggested yesterday and thatis lord read suggested yesterday and that is to consider fairly and as a whole the documentation, the contemporaneous documentation, the authentic contemporaneous documentation that has been produced in this case. And im not going to go back to the comments i made about affidavits in the context of the scottish process. I simply notice that the lord president was perfectly satisfied that i never dated was not in these circumstances required and that is also consistent with the digital of the woodworker where he felt the document spoke for themselves then it would not be required. Lord walker. The language of the documents is important. I have two notice that my learned friend mr oneill use these courteous and indeed incendiary language in describing ministers, advisers and civil servants. That language is wholly unwarranted but it does reveal an error in his approach. If you approach the documents with the preconceived belief and mindset that they are a sham, then of course that will lead you to a particular conclusion with regard to the construction of some passages in those documents. If on the other hand as i would submit you read them fairly and with an open mind, and they are obviously authentic documents and you realise that they give considered advice to the Prime Minister and properly re cord the Prime Minister and properly record a formal cabinet meeting, thenl record a formal cabinet meeting, then i say a different picture appears. And i simply come and that approach, that interpretation to the court. There was a complaint of course that somehow prorogation prevents accountability. Well, it is a fa ct prevents accountability. Well, it is a fact that for a period, prorogation will affect accountability in parliament but it doesnt prevent accountability beyond parliament were again the executive will be questioned and held to account by the public, the media or indeed during a Party PoliticalConference Season at each of those conferences no doubt. But prorogation no more intrudes upon the idea of accountability then would dissolution. And again i cite the point that even under the fixed term parliaments act, there will be no accountability of the executive to parliament for a period of 35 days after dissolution. And nothing can be done in that period because parliament could not be recalled, whereas in respect of prorogation, there are a series of mechanisms that may be employed for that purpose and according to particular circumstances. So again, if one must to fall back on the comparison with dissolution, i would suggest that in fact prorogation is so clearly a matter that is political in nature that it falls within the forbidden territory. Now, and above questions were raised including by the lord sale about the effectiveness of post prorogation controls. But in a sense, the same arises with regard to dissolution. If there is dissolution and the government goes to the country and it is re elected, it may be held accountable on the grounds on which it sought at a particular time, so there is no greater and no lesser degree of control. Of course the ultimate political control, whether it be prorogation or dissolution, is the ability of parliament to express no confidence in the government. And is the ability to take the Government Back to the country. And when looking at all of this, we mustnt forget that one of the primary aims of the opposition in parliament is to replace the government. They are notjust parliament is to replace the government. They are not just there to hold them to account. They are there to replace them just as the government has a political imperative to pursue its own policies so the opposition has a political imperative to seek to pursue their policies. And that is all part of the political ground where the courts should not be. Now, in passing on towards the end of the submissions, my learned friend mr oneill asserted that the United Kingdom could not leave the European Union without a deal unless that was authorised by further primary legislation and that was apparently because departure would impact on individual rights. I dont want to dwell on this point. It arose in the inner house but not before lord doherty in the outer house. Our note of argument doherty in the outer house. Our note ofargument in doherty in the outer house. Our note of argument in the inner house address this issue. I should just address this issue. I should just add that mr oneills case was directly rejected, paragraph 410 of his opinion. It was rejected as irrelevant challenge to prorogation by lord brody in paragraph 71 of his judgment and the lord president rejected that prorogation could have an effect on individual rights, that is on paragraph 59. So in my respectful submission, the submissions by my learned friend mr oneill do not take him to where he would wish to be and the appeal should be sustained. On the unchallenged grounds that i sought to advance in opening for the courts. Now the court will be aware that we produced two further notes perhaps appropriate that i should make reference to these. If i could deal first of all with the note on the effective prorogation on legislation. There was some discussion of this yesterday and we have address the factual and legal position in the note that we produced this morning. In short, the government is and has for a considerable period being alive to the need to ensure that the statute book is preferred for exit from the eu and has taken extensive steps to achieve that result. Most of that work was actually done earlier in the year in anticipation of an exit on the 29th of march. Some further Statutory Instruments are required to address changes, essentially changes in the eu law since march, and there is a largely of a technical nature. The 2018 act provides for an urgent process for the making of Statutory Instruments and in the small number of incidences where such s is knew to bea incidences where such s is knew to be a place for exit, they can and they will be in place. Of course all such si pin must be debated after 28 days and the government considers there will be an opportunity to debate all of these before the 31st of october and it wont be a case of addressing a debate on these instruments after that date. So i seek to reassure lord lloyd jones on that point. And in these circumstances, we expect that they will be adequate time to deal with all their sides and indeed with all required primary legislation and in that context, i should stress that some of the brexit related primary legislation that has been referred to by the brp are not required as an exit date and we seek to give an explanation for that in the note that we have provided. They are issues that will be addressed Going Forward after the 31st of october, assuming an exit on that date, but they are not actually required on that date itself. I should say that there was some elements of confusion in the minds of some about what bills blue referred to and a note, it is said that in paragraph five of this second witness statement, suggest that all brexit bills in the la st suggest that all brexit bills in the last parliamentary session have falle n last parliamentary session have fallen insofar as that statement suggest that all brexit related bills fell at prorogation, that is not correct and we point out that many of them passed. I should add in fairness to doctor tomlinson that if you go back to paragraph 37 of his first witness statement, he is referring there to the five not to the totality. I think there has been a misunderstanding on that point. The second matter that has been the subject of a further notes is the matter of relief. And we have sought to explain why does lord reid anticipate it might be a little more complicated than it first appeared. What cannot remain is part four of the interlocutor of the inner house. But what i would observe is that while we go in detail through these matters and why we will do maintain very strongly that the prorogation of parliament did take effect notwithstanding the complaints made by the applicants, and that parliament is prorogued and that the prorogation cannot be impugned standing article nine of the bill of rights. There is room of course for the courts to make a declaratory or declaration if it comes to the conclusion, contrary to ou