| 1 | The Prime Minister 's purpose in this case |
| 2 | 11. In his written submissions before the Divisional Court , Sir John made submissions about the reasons for the Prime Minister 's decision . |
| 3 | In summary , he submitted that , looking at the material then available , the inference was inescapable that the Prime Minister 's decision was motivated , or in any event substantially motivated , by his political interest in ensuring that there was no activity in Parliament during the period leading up to the EU Council summit on 17 <sol> 18 October 2019 . |
| 4 | 12. Somewhat strikingly , it remains genuinely unclear whether the Defendant disputes that proposition . |
| 5 | No witness statements or affidavits have been filed to that effect . |
| 6 | The Defendant 's written and oral submissions to the Divisional Court studiously avoided committing to any clear position on the issue . |
| 7 | The Divisional Court did not consider it necessary to decide it . |
| 8 | 13. In the event that the question of the Prime Minister 's purpose is disputed , Sir John wishes to draw the Court 's attention to the matters set out below , which have arisen since his original submissions were filed . |
| 9 | 14. The handful of documents exhibited to the very short statement of the Treasury Solicitor must be treated with caution , for two main reasons . |
| 10 | 14.1 First , they have simply been put before the Court as documents . |
| 11 | Unusually in judicial review proceedings , there has been no confirmation that they constitute an accurate or complete record of the reasons for the decision . |
| 12 | 14.2 Second , the document which contains the clearest articulation of the “ legislative programme ” justification -- the briefing paper dated 15 August 2019 -- was prepared by Nikki da Costa , who ( as pointed out in Sir John 's previous written submissions at <sect> 19.3 ) had only a few weeks previously written an opinion piece in The Spectator entitled “ Will parliament be able to stop the next PM leaving without a deal ? ” in which she explored the possibility of an “ adept government ” seeking to “ delay the passage of future legislation to buy time ” prior to the EU Council summit . |
| 13 | That clearly calls for an explanation , but none was provided . |
| 14 | 15. Since then , the absence of proper witness evidence in these proceedings , and the issue of compliance with the duty of candour more generally , has been raised with the Prime Minister and other members of the Cabinet on several occasions . |
| 15 | Taking only those examples which are in Hansard and therefore a matter of public record : |
| 16 | 15.1 On 3 September 2019 the Prime Minister was asked in the House of Commons : “ Is it true that senior civil servants have refused to sign witness statements for ongoing legal proceedings relating to the prorogation ? Were the director of legislative affairs and the Cabinet Secretary asked to do so , and did they agree ? ” |
| 17 | He did not answer . -LCB- HC Deb Vol 664 col 41 -RCB- |
| 18 | 15.2 Also on 3 September 2019 , the Leader of the House ( who , as Lord President of the Privy Council , also chaired the meeting at which the Order in Council proroguing Parliament was made ) was asked : “ have any officials from his office , 10 Downing Street or elsewhere , whether political advisers or civil servants , been conducting communications away from the normal channels , in such a way that would not comply with the terms of candour and disclosure necessary for the court proceedings that are currently taking place ? ” |
| 19 | He answered : “ If people were carrying out discussions without candour , I would not know about them so would not be able to tell the hon. Gentleman whether they had happened . ” -LCB- HC Deb Vol 664 col 91 -RCB- |
| 20 | 15.3 On 4 September 2019 , the Prime Minister was asked the following questions and answered as follows : |
| 21 | “ Mr David Gauke ( South West Hertfordshire ) ( Ind ) : The Prime Minister has said that the Prorogation of Parliament is nothing to do with Brexit . |
| 22 | Is that still his position ? |
| 23 | The Prime Minister : As my right hon. Friend knows full well , there have been demands for a Queen 's Speech from the hon. Member for Walsall South ( Valerie Vaz ) and from across the House . |
| 24 | This Session has lasted longer than any in the last 400 years , and there will be ample opportunity to debate the Brexit deal in this House after 17 October if this Government are allowed to get on and deliver a deal . ” -LCB- HC Deb vol 664 col 170 -RCB- |
| 25 | “ Mr Dominic Grieve ( Beaconsfield ) ( Ind ) : In the light of the Prime Minister 's answer to my right hon. Friend the Member for South West Hertfordshire ( Mr Gauke ) , could the Prime Minister please explain why it has proved impossible to find any official or Minister prepared to state that the reasons for Prorogation were to pave the way for a Queen 's Speech , in the course of the current legal proceedings in which the Government are involved ? |
| 26 | Would the Prime Minister like to reconsider the answer he has just given to the House ? |
| 27 | The Prime Minister : I hesitate to advise my right hon. and learned Friend about legal proceedings but , if he looks at what happened in Scotland this morning , he will discover that that case was thrown out . ” -LCB- HC Deb vol 664 col 172 -RCB- |
| 28 | 15.4 On 9 September 2019 the failure to adduce evidence in these proceedings was debated extensively in the House of Commons : see for example -LCB- HC Deb vol 664 col 524 - 525 -RCB- . |
| 29 | That debate concluded with the House passing a Humble Address calling for the supply of all correspondence and other communications concerning prorogation sent or received by certain specified individuals since 23 July 2019 -LCB- HC Deb vol 664 col 559 -RCB- . |
| 30 | 15.5 In the course of that debate : 15.5.1 the Chancellor of the Duchy of Lancaster was invited to “ explain at the Dispatch Box why no affidavit was filed by any official relating to the circumstances in which Prorogation was decided upon ” , but did not -LCB- HC Deb vol 664 col 553 -RCB- ; and , 15.5.2 the Prime Minister 's position was reported ( even while the debate was continuing ) to be that “ under no circumstances ” would the documents be provided “ regardless of any votes in Parliament ” -LCB- HC Deb vol 664 col 529 -RCB- . |
| 31 | In any normal case , it would be all but inconceivable that a court in these circumstances would reach any conclusion other than that ( i ) the “ legislative programme ” explanation must be , at best , materially incomplete , and ( ii ) the decision was in fact substantially motivated by a desire to obstruct Parliament from interfering with the Prime Minister 's plans . |
| 32 | The well - known principles in Wiszniewski v Central Manchester Health Authority -LSB- 1998 -RSB- PIQR P324 plainly support such an inference . |
| 33 | In particular , it would be very straightforward for the Prime Minister or a senior official to sign a witness statement confirming ( for example ) that the decision had nothing to do with Brexit if that were indeed the case , and despite repeated requests nobody has been prepared to do so . |
| 34 | 17. The scope for such an inference in the present case is if anything greater in view of the requirements of the duty of candour . |
| 35 | The Prime Minister is under a duty “ to explain the full facts and reasoning underlying the decision challenged ” : AHK v Secretary of State for the Home Department -LSB- 2012 -RSB- EWHC 1117 ( Admin ) at <sect> 22 . |
| 36 | His failure or refusal to do so is conspicuous , and there has been no proper explanation for it . |
| 37 | The only conceivable explanation is that the true reasons if disclosed would be adverse to his case . |
| 38 | If the Court proceeded on any basis other than by drawing an adverse inference to that effect , the result would be to incentivise the non - provision of proper explanations of decisions in future cases . |
| 39 | 18. The only real argument against drawing such an inference is that a finding of this kind in respect of a Prime Minister would be unusual . |
| 40 | If that is of any legal relevance , it can only be in the sense that an inherently improbable allegation may require more cogent evidence in support of it . |
| 41 | On that issue : 18.1 it is by no means inherently improbable , particularly having regard to the matters set out in Sir John 's previous submissions at <sect><sect> 20 , that the Defendant had a purpose other than that which is recorded in the handful of documents disclosed ; and , 18.2 even if it were , the evidence as to the true reasons ( such as that set out in Sir John 's previous submissions at <sect><sect> 16 ) , and the absence of evidence to the contrary which it would be readily possible for the Defendant to provide if it were true , are more than sufficient to override any such improbability . |
| 42 | 19. The current factual picture , on the material which is available and with regard to the absence of evidence which ought to be available but has not been provided , is deeply concerning . |
| 43 | The Court is under no obligation to approach this case on the artificially naïve basis that the handful of disclosed documents , the contents of which nobody has been prepared to verify with a statement of truth , should nevertheless be assumed to be entirely accurate and complete when even members of the Cabinet do not appear to believe them ( see previous submissions <sect> 17 ) . |
| 44 | It would also be wrong to proceed on that basis , because it would mean that the real issue that has arisen on the facts would not be resolved . |