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.
*
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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Impeccable.
Very much enjoying the squawking commentary that you’ve drawn a conclusion that the Supreme Court didn’t set out in in its judgment.
It’s almost as if someone giving their view based on the facts as they see them might be prepared to go a bit further than the Supreme Court, as it gives a tightly circumscribed judgment in maybe the most important costititional case in recent decades.
Nail/head.
Those making noise to suggest otherwise know it.
They will howl about a Scottish Court not being a real Court and call for it to be ignored – see the example of a recent Member saying similar about Ms Sturgeon.
All very troubling but almost the norm now in these (almost post-) Johnson days.
Soon Scotland will be independent, and the MP will have their wishes fulfilled.
Hard to avoid this conclusion. Thank you for taking the risk of pointing it out so clearly and firmly.
Seeing it expressed in this format, I’m reminded of another possibility which I think I remember seeing discussed briefly in some quarters at the time: from the known facts, it is possible that Johnson actually told the Queen the true reason, and presumably admitted that what he was saying in public wasn’t true, but that the need to keep the Queen out of the resulting scandal meant this could not be explained to the court.
As you say, it has to be more likely that he maintained the fiction to her, not least because we might speculate that she’d insist on the true reason being made clear to the public, which didn’t happen, but I’m not sure we have evidence available which can conclusively rule this alternative out?
Surely if the Queen had been given the real reason, then she and/or her advisors would have realised that they were very different from the documented reason, and consequently demurred for fear that the Queen would be drawn into impropriety and politicking?
If I understand them correctly, the rationale of those still claiming that the Monarch was not misled on this matter is:
1) the stated reasons to prorogue were the reasons advanced, notwithstanding any advantage also gained by removing parliamentary scrutiny;
2) communication of those reasons was not therefore misleading;
3) the Johnson camp adheres to but doesn’t agree with the courts’ judgments about the suitability of those reasons.
The problem with this argument is it relies on a naive belief that this government was motivated by nothing other than a willingness to save Parliament from wasting time on matters of no consequence. It asks us to accept that those who have shown a blatant & cynical disregard for the truth or scrutiny, before, during & since this episode, were suddenly motivated by a pure ethos of efficiency in legislative process on this one occasion. This strains credulity to the point where its last remaining thread could only be detected by CERN.
“And so there can only be one plausible explanation for the lack of a witness statement.”
Can I ask if, under our Constitution, that a witness statement is always required?
Is it necessary and sufficient that any witness statement has be signed? ( ok, stretching it a bit)
Is there a more simple reason ( in the conspiracy/cock-up camp) that it was a simple ( albeit vitally important). cock-up that no one was physically around to physically sign & deliver ( & show) said witness statement.
If this was my get out of jail free card, I wouldn’t particularly like it. :)
This moved from being constitutional once it entered the courts. The court officers will want someone to own the decision and sign for it else it’s not much better than hearsay.
So then the question becomes – is a witness statement a legal requirement?🤔
One can own a decision without signing for it, even in a Court of Law.
This can be simplified, and David has already explained it indirectly. Of course a witness statement is not a legal requirement. If it were, then a witness statement would have been compelled.
The absence of any witness statement, under pain of perjury, signifies that no minister would sign off on it.
Had a minister signed off on the reasons given in the documents with perhaps clearer and expanded reasoning, then the court would have probably deferred to them.
The reason for that is simple. The minister would be risking perjury. The notion that this was some oversight, as suggested that no one was physically available, is fanciful.
Given no witness statement, the court is entitled to draw inferences, as David has done. The Court of Session makes clear that they find the reasoning suspect.
The Supreme Court finds that absent any statement other than the documents submitted, they find no reasonable justification (no reason at all). They do not feel the need to go any further than that, but the lines are there for anyone to read between.
*Evidence* is a legal requirement. If you want the court to proceed on the basis of certain facts, you have to put those facts in evidence. And, in these proceedings, a witness statement was the form of evidence that would have been appropriate. (In different proceedings, you might call a witness to give evidence in court.)
Well, there’s a bit of vagueness over the phrase ‘legal requirement’.
In terms of civil litigation, directions given by the Court will usually be phrased something like this:
“Statements of those witnesses on whom the parties intend to rely must be [exchanged, served, whatever] on such-and-such a date.”
It can be seen, then, that witness statements are not a legal requirement but that without the court’s permission you can’t have a witness at trial whose witness statement has not been served or whatever as directed. Only in exceptional circumstances will a court allow evidence from a witness whose witness statement has not complied with directions.
What we have in the case referred to is the non-appearance of evidence, not a witness statement as such, as to the reasons given to the Queen.
Anyone in the practice of reading judgments will know that judges are obliged, reasonably regularly, to comment on the fact that evidence that would be desirable or even necessary in order to prove the case of one or other of the parties has not been put forward. For example, the head of department has given evidence rather than the employee who actually carried out the work.
In such situations the judge[s] cannot know what evidence that witness would have given and must reach a decision without it.
Furthermore in certain circumstances the judge[s] may accept the other party’s invitation to conclude that the only reason the witness is not part of the proceedings is because their evidence is likely to have weakened the case of the party who would be expected to rely on that witness.
So what happened here is the Supremes pointed out that since no-one had given evidence as to what reasons were given to the Queen, they were bound to conclude that there was no reason for a 5 week prorogation.
Steve – ‘legal requirement’….. what’s vague about it.
Surely it’s binary ie it is or it isn’t a legal requirement?
A witness statement must be verified by a “statement of truth”, else it is liable to be ruled inadmissible.
See
* https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part22
* https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part22/pd_part22
A witness statement about the reasons for the prorogation would have been helpful to the government’s case. But no one was willing to make such a statement.
The failure to give a witness statement on reasons markedly harmed the government’s case – indeed, in the Supreme Court, it was fatal. One is forced to ask why such a simple and routine step was omitted.
Thanks – I’m still minded to ask ‘is there/was there a legal necessity ‘ to have a signed witness statement, notwithstanding the implications and nods’n’winks (guvnor) ?
A terribly unfair question, I know.
DAG’s expert opinion, greatly appreciated.
I appreciate this post, and its dealings with both the legal niceties and the wider context.
I ask myself, do I believe a)BJ would care about lying to the Queen, or that b)he would just do what was expedient for him, and assume he could sort it out later, as per his usual practice?
I discover that (having lived through all his various Parliamentary statements re Partygate) for him to make an exception for the Queen would probably surprise me more.
It was a “wheeze” the Eton boys, Johnson and Rees-Mogg (leader of the mini Privy Council gang who went to Balmoral and, I suspect, one of the chief instigators of this subterfuge) thought they could get away with. RM is out of time: much more suited to the intrigues and popish plots and cabals of the Restoration and late Stuart / early Hanoverian court politics; much less capable than Lauderdale but having the repellent nature of Sunderland.
You open a fascinating new front in our discourse.
Rees-Mogg attended Oxford where he read history. Johnson also attended Oxford – Balliol College, where he took a 4 year undergraduate degree in Classics, ancient literature and classical philosophy.
I cite these academic references to suggest that neither Rees-Mogg nor Johnson seem likely to have the knowledge or experience necessary to understand what the prorogue of parliament meant, to have thought of the concept themselves or to have the faintest clue as to how to go about implementing it.
Which is not to say that your logic is in any way flawed, merely that there were almost undoubtedly a few more miscreants involved.
If Rees-Mogg and Johnson have even the most elementary knowledge of 17th century English history – which someone of their age, education and background should have, (though I don’t know what specific “periods” RM may have studied at Oxford), then they would be very well aware that both Charles I and his son Charles II prorogued Parliament a number of times to thwart the unwelcome attentions of the House of Commons to their doings. And it usually worked – though in the case of Charles I until it didn’t. I don’t imagine schoolchildren of today have the faintest idea – we have long stopped trying to provide a brief overview of our own history to our citizens (even as nationalistically and simplistically flawed as the comedic “1066 and all that”). I believe they now go from the Romans to the Nazis with nothing in between. I cannot argue that there were not more miscreants involved, but I suspect Eton more likely to have provided its pupils with a bare overview of British history than a state school.
An issue which has not sufficiently been addressed in my view is not the proroguing of Parliament per se, but the completely unjustifiable and unprecedented length of the downtime.
If our darker suspicions are substantive, that was the point… the duration of the cessation was specifically intended to limit discussion of the Brexit arrangements.
I have a somewhat related frustration, which is that I would have hoped that after the prorogation of parliament, there were absolutely zero possible excuses for any MP to have not read – multiple times – and thoroughly understood the proposals being put before the House.
I will go further… I’m currently working in an industry sector that is very heavily regulated, which requires the organization where I work to design and implement the policies, standards and procedures that our organization is required to follow. If you think of our internal framework being a de-duplicated distillation of the external framework of laws and regulations that impact our sector, you have the right idea.
One of the things I am required to do is to socialize my work ahead of submitting it to the approving Operating Committee – which stands to reason.
Yet – outside “readings” of the legislation – the practice of designing and implementing legislation in the UK seems to be a remarkably fragile process. Laws may come from a Parliamentary Committee, but in practice this may mean that the number of authors involved are relatively few. They may get some degree of socialization, but it seems – I can only say “seems” as I have no direct knowledge – that in conjuction with the prorogation, parliament did a rather poor job of ensuring that members were thoroughly read and fully briefed on the proposal.
It seems almost counter-intuitive – given all this extra down-time, that MPs weren’t better read and didn’t have their arguments or questions better prepared.
That’s largely inexcusable.
But not unexpected.
I am not very happy with DAG’s argument.
The flaw, it seems to me is the supposition that there is a “real” and a “false” reason. Most human decisions and actions have multiple motives or multiple possible motives.
One would hope that in a confidential audience with the Queen the Prime Minister would discuss his political advantage but in a formal request to prorogue Johnson may have thought or been advised, correctly, that a sufficient reason was enough.
President Truman explained his decision to use the Atomic Bomb as to avoid excessive casualties, especially American casualties. Other suggest that his “real” reason was to demonstrate that the US possessed the weapon and would use it. Truman, indeed any responsible President, must have considered both factors.
When considering Truman or Johnson’s action I suggest that the real test is not what is the “real” reason but whether the reason given is sufficient. In Johnson’s case, balancing the (rather pathetic) reasons given against the effective neutering of Parliament at a vital time, I would say, no.
Maybe courts are reluctant to entertain this question. But examining every Prime Minister’s motivation and branding them as liars every time political or personal considerations enter their decisions is not ideal either.
I am not sure how you can avoid the “real” and “false” reason dichotomy unless you first argue that the Supreme Court erred in its judgement that “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”.
“..But examining every Prime Minister’s motivation and branding them as liars every time political or personal considerations enter their decisions is not ideal either…”
It’s in the nature of legal/judicial activism that all decisions, for whatever reason have to be both legal & transparent.
It’s not apparent to me that politics works with such clarity or that the law can cater for every eventuality (Which we know it can’t).
We’ve seen massive judici
The “real” reason had to be kept secret from the Queen. QEII was taught English history and would be well aware that her predecessors before the “Glorious Revolution” of 1688 frequently used prorogation as a useful tool to avoid unwelcome scrutiny by Parliament, particularly the Commons. One of them ultimately lost his head over it.
“When considering Truman or Johnson’s action I suggest that the real test is not what is the “real” reason but whether the reason given is sufficient… Maybe courts are reluctant to entertain this question.”
That’s precisely the question that the Supreme Court did answer, and it answered in the negative. Outside the court of law, commentators are free to make their own inferences and should be prepared to back them up.
DAG may be wrong. He invites others to come up with better reasoning and offers then to reformulate his view. Whether Her Majesty knew or was given the “real” reasons is irrelevant. She acts on the formal reasons.
It was rumoured that she sought advice after this ruling as to whether the PM could be removed.
Sorry but there is no doubt that both the PM and Jacob Rees-Mogg who as President of the Privy Counsel (and Leader of the Commons) was the person who went to Balmoral to get HM to sign the instrument of prorogation, lied to HM.
The SC may well have pulled their punches in how the judgement was phrased but there is no getting around the fact that the 10 to nil ruling that the prorogation was illegal was emphatic.
The attitude of HM to being lied to by Johnson was made clear at the banquet she hosted for the heads of state of the G7 in Cornwall later in the year when it was noticed that HM pointedly ignored PM Johnson at the dinner and spent most of her time talking with President Biden. She was and no doubt still is furious with Johnson for embarrassing her.
This is a brilliant summary David.
I can’t see how its logic could be gainsaid. Thank you for all the hard work you put unto your postings – they have become an indispensable source for non-lawyers like me.
Please can you or one of your many legal followers help me with one remaining point arising from yesterday’s posting that’s left me scratching my head? At my age I cannot afford to lose any more hair.
You argued persuasively that “Boris Johnson, in effect, lied to the Queen”.
You went on “‘in effect’ was not mere surplusage – I used the phrase for a reason”.
However, given the logical reasoning of your argument I’m led to conclude that Boris Johnson lied to the Queen and I do not see the necessity of “in effect”.
It’s clear from my reading of your post that you were not happy with the Daily Mirror’s headline, but I still don’t get why.
My lack of understanding here brings back many unhappy memories of sitting in my Maths O Level class (in the 3rd and bottom set) 50+ years ago and failing to understand the joys of, for example, quadratic equations and trigonometry.
Please David put me out of my misery. What subtle, or maybe not so subtle point am I missing?
Interesting things lies and very useful – too useful. Journalists are also useful – but tricky, nuance is not a big thing with them.
In earlier times a lie might have condemned one’s soul to eternal darkness. Not a cheerful prospect. But a few getout clauses were found – lying to foreigners or to those of another religion or if one worked in a business where truth was not expected – all these were OK. An interesting sidelight on the early development of Canon law and King’s law. The lie is too useful a tool.
So did Boris lie, almost certainly and I don’t think anyone was surprised or offended. But the Supreme Court does seem to have skirted the ‘lie’ question rather adroitly.
Whether Boris’s eternal soul is headed downwards I don’t know but a trial for perjury would be a very inconvenient thing. Indeed I should think pinning a perjury rap on any experienced and advised politician or business person would be a difficult job.
A broader point, but surely pertinent, what is the monarch for?
In various fields of human endeavour, one will encounter the joint disciplines of “Incident Management” and “Problem Management”, often conveniently given different names.
To do a terrible dis-service to these highly specialised disciplines, we could simplify their respective roles, for the lay-person, down to “How to put the fire out” and “How to stop more fires starting”, respectively.
One of the (for me) most impactful benefits of reading David’s blog is the insight it gives me in to helping understand where critical parts of our society – law, government, justice and politics – can go wrong. Perhaps even more significantly, David’s analysis of various topics helps us understand the flaws and limitations of key elements of these systems.
Yet through this, one element consistently seems to elude us. In technology, in aerospace, in full-on actual space, in high risk human activities such as mining, or deep-sea oil exploration, finance, or transportation, we see mechanisms in place to help us respond to mistakes, help us understand and learn from them and help ensure that they do not repeat.
So it comes as something of a shock, as a now regular reader of this web site and it’s educational articles, to realise that not only does ‘the system of government’ seem to have no “incident management” or “problem management” safety mechanisms in place, it is apparently well aware of this shortcoming and could not care less.
To consider the current example… We have all just read, across two articles, compelling evidence that the then Prime Minster, perhaps aided and abetted by a variety of cabinet colleagues, to say nothing of the potential assistance from civil servants and/or SpAds, likely misled or lied to our Monarch in order to persuade her to prorogue parliament, thereby allowing the government to avoid its responsibility to allow debate time for the Brexit legislation.
Whilst David is perhaps uniquely qualified and extraordinarily insightful – and I don’t mean to slight his achievements here – we would have to suspect that others in government may have suspected or concluded the same.
Yet where are the proposals to review the mechanisms for allowing a prorogue of parliament? Where is the amendment to rules or laws being put forward by HM Opposition?
All the evidence we have suggests that the out-going Prime Minister found and employed a “cheat code”… and the collective reaction of the government is… nothing.
There are many things that I find distasteful about our system of government: the nepotism, the lack of accountability, the casual corruption. Yet it is this wilful blindness, this adamant refusal to step up and “fix the process” when it breaks down that disappoints me the most.
Ultimately, I think it is because it is self-serving for MPs and members of the Lords to do nothing. The less control/oversight/consequences they have, the more power and/or wealth they can accrue.
Quis custodiet ipsos custodes?
Surely it is the role of the Cabinet Secretary to stop what was a deliberate subterfuge with an unconstitutional purpose? Surely this could not have happened without his knowledge – or did it or could it in fact occur without his knowledge? Will we have to wait thirty years to find out?
Hard to fault your logic
Being the Govenment means you can decide that “incident” means “election” and “problem” means “win the election”.
“The question is, which is to be master—that’s all.”
Edit-button, please!
But isn’t this whole argument based on the premise that prorogation is justiciable? Both the the High Court and the Outer House judged that prorogation was not subject to judicial review. On the SC judgement Prof. Finnis opined:
“In working with the principles of Parliamentary sovereignty and political accountability, our constitutional law has always (partly under the influence of art. 9) distinguished firmly between legal rules (justiciable) and conventions (non-justiciable). The Judgment offers no plausible reason for transferring the conventions about prorogation into the domain of justiciable law.”
And wouldn’t providing a witness statement from a minister or official implicitly suggest a recognition that prorogation is justiciable? In that sense I think the government was correct in not providing one, and it highlighted (again) the SC’s interference in trying to thwart Brexit.
“But isn’t this whole argument based on the [law] that prorogation is justiciable?”
Yes, as corrected.
The law of the land has been set out by the Supreme Court, and Finnis’s commentary is not a source of law.
Well, is it now time we admit that “Britain Now Has a Politicized Supreme Court, Too” as read the NY Times headline on the prorogation story. I remember Lord Neuberger back in 2015 giving a speech on what he described as “judicial aggrandisement”.
The UK Supreme Court is not “politicised” in any meaningful sense, and I’d argue it has been taking conscious steps in the last few years to avoid accusations of “judicial activism”. A court decision about the law in a political context will have a political flavour, but that can’t be helped.
I suspect you may be referring to this speech, for the 800th anniversary of Magna Carta. https://www.supremecourt.uk/docs/speech-150618.pdf
See paragraph 62, which follows a list of points explaining why there may be, or appear to be, a shift in judicial practice in the UK in recent years. Starting with 55: “First, the increasing powers of the executive in many areas over the past sixty years mean that there has been a much greater call for judicial scrutiny of administrative decisions.” and continuing with 57: “Thirdly, as I mentioned earlier, we do not have proper separation of powers between the
legislature and the executive in the UK” Finishing at 62 with: “… of course, if the unelected judges
reach a decision which the elected MPs do not like, they can overrule it by statute.”
For that is the nature of our constitutional settlement.
I find it offensive, the suggestion that the Supreme Court ruling was motivated by a desire to “thwart Brexit”. Like Iain Duncan Smith’s newspaper column following Miller I and his suggestion that it was the Court overruling Parliament. Both of these have it backwards.
In both cases, the Court came down on the side of Parliament against an unruly executive. HMG could not give notice to the EU without Parliamentary approval (which was then provided) and it could not sidestep Parliament to bring about a hard Brexit by default.
The EU Referendum Bill had nothing in it regarding implementation of the exit, nor would Parliament be bound by the result. It did nothing but set out the meaning of the vote and how it would be organised.
Parliament needed to approve the terms of the withdrawal, and that came following a general election. Before the election, Parliament was as divided as the public. The nullification of the prorogation order was nothing other than a victory for Parliamentary sovereignty. Eleven of the country’s top judges and no dissent. That in itself is remarkable.
> 5. Those who put forward those reasons knew them not to be the real reasons.
This Twitter thread shows Nikki da Costa (the “Nikki” from the memo) describing how prorogation was required to bring the EU to the negotiating table.
https://mobile.twitter.com/mpc_1968/status/1508869544621785093?s=12&t=rLIQQ-lfPn9V6Fp2X5bGhA