Legal Expert David Allen Green's Take On Scottish Court's Prorogation Ruling

11 September 2019, 15:20

Legal expert David Allen Green explained to James O'Brien why the government lost their court case on prorogation - and the reason why it happened is very revealing.

Three Scottish judges ruled that the suspending of parliament was unlawful and it all boiled down to the government not submitting a witness statement explaining their reasoning.

And speaking to LBC, Mr Green explained that the lack of that document is at the centre of the entire case.

He said: "The government has shown it can't even abuse the constitution competently. The whole exercise is an illustration of their ineptness over Brexit.

"The idea was to suspend parliament - to actually lock the doors and stop everything for five weeks with this ancient power. It's only meant to be for a few days.

"But someone had the bright idea to close parliament down for five weeks to stop MPs doing anything in this national crisis.

"On the face of it, they had a legal power to do it and my initial view was that there was zero chance of this being legally challenged. But it was litigated and the argument was that the government was that they were acting in bad faith.

James O'Brien spoke to legal expert David Allen Green
James O'Brien spoke to legal expert David Allen Green. Picture: PA / LBC

"Usually, when you are faced as a government with a legal challenge of bad faith, all you really need to do is put down a witness statement from a minister or a senior civil servant just explaining how the decision was made. And that is what should have happened.

"But for some reason, a witness statement was not put in in this Scottish case. That has turned out to be crucial.

"In the absence of an account by the government of why they took this decision to prorogue parliament - and remember that the official version is that it is to prepare for a new Queen's Speech - it became open to the Scottish judges to infer that in the absence of a positive plausible explanation, that there was a bad motive, that it was being done to stop parliamentary scrutiny.

"Having found that, they've made what's called a declaration. Unanimously, the three Scottish judges have said that the only explanation for this prorogation is improper motive. And if it's improper motive, then it's unlawful.”

So why wasn't a witness statement submitted by the government? That's where things get even more interesting.

He continued: "The reason there wasn't a witness statement is because it seems that nobody would risk the legal peril of signing it.

"It's a criminal offence to knowingly [mislead a court].

"it would appear that there was something which prevented somebody happily signing a witness statement explaining the true reason why prorogation was sought.

"In the absence of that, it was conspicuous.

Protesters outside the Scottish court
Protesters outside the Scottish court. Picture: PA

"Why can't the government get any minister or civil servant to sign a witness statement under peril of law stating that the true reason they wanted prorogation was the prepare for a Queen's speech? They can't find anybody to do that."

Finishing where he started, David said: "This was an exercise in choreography. This could have been done competently. But they couldn't even do this competently.

"In the run-up to it, they should have made sure that nobody sent stupid texts and messages giving the true reasons."

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