The government has been forced to reveal confidential Downing Street memos about the prorogation of parliament as it resisted legal challenges in Edinburgh and London to Boris Johnson’s five-week shutdown of parliament.
The documents, first mentioned in the case at the Scottish court of session, detail discussions between the prime minister and his cabinet over the decision to ask the Queen to prorogue parliament. They featured prominently in both the London and Scottish hearings.
One handwritten note from Johnson declares: “The whole September session is a rigmarole introduced [missing words] to show the public that MPs were earning their crust. So I don’t see anything especially shocking about this prorogation … It is over the conference season so that the sitting days lost are actually very few.”
The full texts, minus some redactions, were released on Thursday evening in Edinburgh even though the paperwork was prepared for the hearing in London.
Notes from a cabinet meeting on 28 August state: “The terrain between now and October would be rocky. Although there had been longer periods of prorogation in the past, they were exceptional. Parliament would not normally be prorogued for a longer period than one to two weeks. It should be explained why in this case the period was significantly longer. The government would be attacked for this decision but it would be manageable.”
The cabinet document also reveals that talks with Brussels were not making much headway despite what was being said in public: “The prime minister said that progress with the EU should not be exaggerated, whilst there was a good chance that a deal could be secured, there was also a high chance that it could not. Success would require a united and determined approach.”
Mark Sedwill, the cabinet secretary, and Nikki da Costa, the prime minister’s senior legal adviser, had been asked to confirm their reasons for the prorogation under oath in statements for the Scottish legal action. Joanna Cherry, the Scottish National party MP who is the lead litigant in the Scottish case, raised this with Michael Gove, the de facto deputy prime minister, in a Commons committee hearing on Thursday.
Cherry asked Gove whether Sedwill and Da Costa were scared of perjuring themselves or simply did not want to reveal the true reasons for prorogation. Gove replied: “I have absolutely no idea.”
The high court in London is hoping to give judgment on Friday morning after hearing evidence that Johnson’s decision to shut down parliament at a time of intense political upheaval is an “unlawful abuse of power”.
Whichever way the court’s decision goes, a series of similar legal challenges from Belfast, Edinburgh and London are expected to be joined together at the supreme court on 17 September so that the UK’s most senior judges can resolve whether or not it can be overturned.
At the high court on Thursday, three of the most senior judges in England and Wales – the lord chief justice, Lord Burnett of Maldon, the master of the rolls, Sir Terence Etherton, and the president of the Queen’s bench division, Dame Victoria Sharp – heard arguments about the powers used to prorogue or suspend parliament at the end of a session.
Lord Pannick QC, who represents the legal campaigner and businesswoman Gina Miller, is challenging Johnson’s announcement that parliament should be suspended from next week until 14 October. The prime minister’s advice to the Queen to prorogue the session showed that he regarded parliamentas an irrelevance, Pannick said.
Prorogation has never lasted longer than three weeks in the past 40 years and in most casesonly a week or less, Pannick said.
“The prime minister’s decision is an unlawful abuse of power,” he said. “It breaches the legal principle of parliamentary sovereignty because the effect of prorogation is to remove the ability of parliament to enact such legislation as it sees fit. Prorogation also prevents parliament from performing its other scrutiny functions.”
The prime minister is entitled to decide to end a session of parliament, Pannick said. “We say that what the prime minister is not entitled to do is to close down parliament for five weeks at such a critical period without justification and when a five-week prorogation is simply not required for the purposes of a Queen’s speech.
In written submissions, Sir James Eadie QC, representing Johnson, said prorogation was not a matter for the courts to decide.
“There are no judicial or manageable standards by reference to which the courts could assess the lawfulness of ministerial advice to prorogue parliament or prorogation itself,” he said. “The exercise of this prerogative power is intrinsically one of high policy and politics, not law.
“Moreover, the frequency of sitting of parliament and the advice tendered to Her Majesty are governed by constitutional convention and not legal rules. It is well settled that the courts do not enforce constitutional conventions which rest on a constitutional and political balance.”
Miller’s application is supported by statements from the former prime minister Sir John Major, the shadow attorney general, Shami Chakrabarti, and lawyers for the Scottish and Welsh governments. They will be given to the court.
Lord Garnier QC, representing Major, said in a written submission that his client believed it was “unlawful to exercise the power of prorogation if the purpose of doing so is to obstruct parliament from enacting legislation with which the prime minister disagrees”.
Scotland’s most senior judge, Lord Carloway, sitting in Edinburgh with Lord Drummond Young and Lord Brodie, heard an appeal by lawyers for 75 MPs and peers against a decision by Lord Doherty on Wednesday to reject their claim that Johnson had prorogued parliament illegally.
The Edinburgh appeal is due to continue to Friday, when Carloway will rule on an application for an emergency interdict or injunction to suspend prorogation until the courts can issue a final ruling. Carloway indicated the appeal decision may not be issued until Tuesday, the day when prorogation could come into force.