16th August 2022

Yesterday’s post caused a little bit of excitement elsewhere on the internet, and so I think it may be useful to set out the core of that longer post in one shorter post today.

The reasoning for my argument is as follows.

1. There was communication between the Prime Minister and the Queen.

This is not in dispute, and the evidence before the court was that a formal telephone call was to take place on 27 August 2019 between the Prime Minister and the Queen the day before she would be attended by Privy Councillors to make the relevant order.

The reason this was a telephone call was because the Queen was in Balmoral.

2. In this telephone call the Prime Minister would have given reasons for the prorogation order.

This should not be a controversial point, as that would have been the purpose of the call, and the Queen and her private office would have wanted to be confident that all was proper and constitutional.

That the Prime Minister would have given reasons is supported by the witness evidence for the prorogation case of the former Prime Minister John Major:

3. The reasons the Prime Minister would have given would have been those recorded in the contemporaneous documentation.

As the litigation revealed, there had been internal documentation created in August 2019 which purported to set out the reasons for the prorogation.

In essence, the purported reasons were as follows:

“The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

The Prime Minister is unlikely to have admitted that the reasons for the prorogation was to stymie parliamentary accountability in the run-up to the then exit day of 31 October 2019.

4. The reasons he would have given were not the real reasons.

The Scottish appeals court – the Inner House of the Court of Session – found that the request for a prorogation had an “improper motive”.

The Supreme Court adopted a different approach, and held that the reasons given for the five-week prorogation did not add up (emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The reasons given were either improper or insufficient – but in either case the reasons were not accurate.

They were not the real reasons.

5. Those who put forward those reasons knew them not to be the real reasons.

This point is in part based on the Scottish appeal court’s finding of improper purpose, but it is mainly based on the absence of a signed witness statement from a minister or official setting out the reasons for the request.

This absence was conspicuous – and it was referred to in the litigation.

The government lawyers just put in as relevant evidence the contemporaneous documentation quoted above.

The Supreme Court expressly set out the consequence of the lack of witness evidence in the passage already quoted above (different emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The need for such a witness statement would have been obvious to the government lawyers and would have been reported to senior officials and ministers.

But still nobody seemed willing, under the peril of perjury, to put their name to the purported reasons.

Had the reasons given in the contemporaneous documentation been the correct reasons then there would have been no problem whatsoever in setting them out in a witness statement.

And so there can only be one plausible explanation for the lack of a witness statement.

Those in a position to know the real reasons knew the reasons stated in the documentation (and thereby the reasons which would have been given to the Queen) were not the true reasons.

Conclusion

Given the above points,  the conclusion seems to me to be inescapable.

When the Prime Minister spoke to the Queen to give reasons for the prorogation, he knew those were not the correct reasons.

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If anybody can show a fault with any of the five points above, or with my chain of reasoning, or with my conclusion, then I will be happy to adjust my view or recant it outright.

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