July 23 2024
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‘Listen to the angels of your better nature…’

‘Listen to the angels of your better nature…’

Constitutional lawyers and politicos may have been grabbing the popcorn at the prospect of a three-day Supreme Court hearing on the government’s decision to suspend parliament; but for those of less esoteric tastes the proceedings were likely to be dull- possibly reassuringly so. There is little more effective at assuaging fears of a judge-led constitutional coup than watching Lord Pannick explain, in his most measured of tones, why the prorogation was both justiciable and illegal.

For viewers of a stronger constitution, who stuck with it, Aiden O’Neill QC was a dramatic departure from the norm, opening on Tuesday with a bombastic display of oratory that careened from the Battle of Bannockburn to the iconography of the courtroom carpet.

Such a performance was less UK Supreme Court and more bright lights of Hollywood, but it did serve to emphasise the extraordinary nature of the proceedings that were taking place before the 11 justices- who themselves were a visual metaphor for the importance of the case, with the Supreme Court having only sat en banc once before, in the first Miller case.

Before O’Neill’s curtain call, all watching Pannick and Eadie’s submissions – two of the most elegant, effective and experienced advocates at the Supreme Court – could be forgiven for thinking the matter mundane. As Eadie laid his case before the court, it began to seem almost reasonable for the government to have unfettered control over parliament’s sitting. The issues seemed far removed from the political fray, the judges isolated in their ivory tower from the rumblings of disquiet below.

O’Neill’s argument extinguished this sense of tranquility, emphasising the political realities of the case. Deference, usually the hallmark of any advocate before the justices of the Supreme Court, was discarded, with O’Neill commanding the Vice President, Lord Reed, to ‘look perturbed, look upset, but [not to] look sceptical’. Whilst some may question such a style- and which Eadie’s eyebrows’ meanderings did all on their own- O’Neill’s delivery drove home the truly autocratic nature of the government’s prorogation. This was no mere dispute over an element of the executive’s power, but a conflict that went to the very core of the constitution, and O’Neill seemed determined to place that front and centre in the justices’ minds.

Whether this style was effective- or even necessary- has been subject to some dispute, not least on legal twitter. Certainly, such rhetoric shares more with the Roman Senate than the Supreme Court, but supporting all the rhetorical flourishes were clear points of principle, logic and law. Nor is O’Neill a mere ingenue before the justices, but a veteran of over 30 appearances before the Supreme Court, and whose style is doubtless familiar to the bench. Indeed, had they been dissatisfied by his submissions, it is unlikely that the justices would have been reticent in putting him in his place.

The brutal dispatching of Ronan Lavery QC, counsel for Northern Ireland, by Lord Wilson, telling him to ‘not abuse their politeness’ was a clear example of their willingness to shut down an advocate who has overstepped the mark.

Should, however, the court rule against the government, as the questions on remedies to Lord Pannick seemed to suggest they might, there may be some cause for regret on Miller’s side. The court made much of its neutrality and its focus on the law, and whilst strong legal and constitutional argument underpinned O’Neill’s submissions, there was a surfeit of dramatics that could easily be manipulated to suggest that the court’s reasoning was motivated by factors other than legal principle – something the Dominic Cummings will be happy to take full advantage of in any imminent general election.

To suggest that O’Neill, however, harmed Miller’s case does a disservice to both his advocacy and the intellectual heavyweights on the court, who are unlikely to struggle to look beyond kitsch like ‘Father of Lies’ to the principle beneath- and especially so when Lord Pannick was on hand to crisply conclude why the government’s case was so inadequate.

Legally, the approach was sound. Politically? We’ll have to wait and see.

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