Brexit: government publishes Operation Yellowhammer documents – live news

Robert Buckland, the justice secretary, has defended the Scottish judges. He is clearly seeking to defuse the row triggered by a Sun tweet. (See 11.49am.)

Buckland’s decision to speak out makes a striking contrast with Liz Truss’s refusal to defend the judiciary in November 2016 when the Daily Mail used a splash headline to denounce judges as “Enemies of the people” after they ruled that Theresa May must pass legislation before triggering article 50. At the time May’s relationship with the Mail was very close, and it was said that Truss was afraid of saying anything in public that could be taken as criticism of the paper.

This is from Nicola Sturgeon, Scotland’s first minister.

She has also said this about the Newton Dunn/No 10 source tweet quoted earlier. See 11.49am for a discussion as to what it actually means.

Parliament can only be recalled if the government chooses, the Speaker’s office has confirmed.

Dominic Grieve, the former Conservative attorney general and one of the 21 MPs who had the whip removed last week after rebelling over Brexit, has told BBC News that, if Boris Johnson misled the Queen about the reasons for prorogation, he should resign.

If it were to be the case that the government had misled the Queen about the reasons for suspending parliament, and the motives for it, that would be a very serious matter indeed. Indeed, in my view, it would then be the moment for Mr Johnson to resign, and very swiftly.

Grieve was also the MP who tabled by standing order 24 motion passed by MPs on Monday demanding the release of private messages from Johnson’s aides relating to the prorogation of parliament. In the debate he said government whistleblowers who had told him what really happened thought the affair “smacked of scandal”.

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This is from Labour’s Kevin Brennan.

This is from the Sun’s Tom Newton Dunn.

My view is that this No 10 source quote is not as incendiary as Newton Dunn implies. The Scots have their own legal system and, according to David Allen Green (see 10.34am), on constitutional matters the Scottish courts don’t always take the same view as the English courts. The No 10 source is pointing that out. But that does not make the judges biased. “Biased” implies bad faith, which is different.

Rightly or wrongly, Gavin Barwell, Theresa May’s chief of staff when she was prime minister, has used this as a cue to denounce his successor.

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This is what Sir Keir Starmer, the shadow Brexit secretary, told Sky News about the judgment. He said:

It’s a very powerful judgment. And it is incredible in one sense, that the judges have gone into this space, used the language they have, saying that essentially the prime minister, his real motive was to frustrate the process and to shut down parliament. Across the country I don’t think many people actually believed the prime minister when he said this is just for a Queen’s speech.

But for a court to say that the documents really point one way, that they undermine his case to a point where they have ruled him unlawful, that’s an incredibly powerful thing for them to have done.

Starmer said it was not unusual for a court to rule that the government had acted unlawfully. But he continued:

But to say that the motive or the reason that the prime minister has put forward was not the true reason, that is very powerful, and very unusual for a court. I don’t think they would have done it without overwhelming evidence.

Stamer also called for an immediate recall of parliament.

I think the right thing for the prime minister now is to recall parliament, this afternoon or tomorrow morning, so that we can get back, do our job, and look at the judgment, as a parliament, and decide what ought to happen next.

The SNP has released this formal response to the judgment from Joanna Cherry, its justice and home affairs spokesperson. She said:

Today’s ruling of the highest court in Scotland that Boris Johnson’s plans to shut down the UK parliament ahead of Brexit are unlawful and unconstitutional is a huge victory and a vindication of our case. The prorogation must now be stopped.

The court agreed it is unlawful to suspend the UK parliament for the specific purpose of preventing parliament from scrutinising the Brexit process and holding this shambolic Tory government’s extreme Brexit plans to account.

We have uncovered more and more evidence that this was a plot by Boris Johnson and his cronies to prevent us from stopping them taking Scotland and the UK off a Brexit cliff edge by forcing through a damaging no deal against the will of parliament.

This ruling takes us one step closer to ensuring the UK government cancels their shameful prorogation and blatant plot to force through an extreme Brexit. Boris Johnson cannot be allowed to break the law with impunity.

This is from Shami Chakrabarti, the shadow attorney general, on the court of session’s judgement.

This ruling shows that, despite what Boris Johnson has spent his privileged life thinking, he is not above the law.

Labour will not allow his elitist shutdown of parliament to enable him to dodge scrutiny and force through a disastrous no-deal Brexit.

If you have been trying to download the summary of the court’s judgment, you may have had problems. The Judicial Office for Scotland website seems to have having trouble coping with all the interest.

So here it is. This is not the full judgment; just a summary issued to the media. There is no bold text in the original. I have inserted it to highlight the key sentences and paragraphs in the summary.

The Inner House of the Court of Session has ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

A petition for judicial review was raised by 79 petitioners, 78 of whom are parliamentarians at Westminster, on 31 July 2019, seeking inter alia declarator that it would be unlawful for the UK Government to advise HM the Queen to prorogue the UK Parliament with a view to preventing sufficient time for proper consideration of the UK’s withdrawal from the European Union (Brexit).

A substantive hearing was fixed for Friday, 6 September, but on 28 August, on the advice of the Prime Minister, HM the Queen promulgated an Order in Council proroguing Parliament on a day between 9 and 12 September until 14 October. The Lord Ordinary (the judge hearing the case at first instance) refused to grant interim orders preventing the prorogation, but brought the substantive hearing forward to Tuesday, 3 September. On the eve of the hearing, in obedience of its duty of candour, the respondent lodged some partially redacted documents exhibiting some of the Government’s deliberations regarding prorogation, going back to 15 August.

The Lord Ordinary dismissed the petition. He found that the PM’s advice to HM the Queen on prorogation was, as a matter of high policy and political judgment, non-justiciable; the decision to proffer the advice was not able to be assessed against legal standards by the courts.

The reclaiming motion (appeal) was heard by the First Division of the Court of Session over 5 and 6 September. Parliament was prorogued in the early hours of Tuesday, 10 September.

All three First Division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying Parliament and that it, and what has followed from it, is unlawful.

The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference.

Lord Drummond Young determined that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. It was incumbent on the UK Government to show a valid reason for the prorogation, having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action. The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny. The documents provided showed no other explanation for this. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament.

The Court also decided that it should not require disclosure of the unredacted versions of the documents lodged by the respondent.

The Court will accordingly make an Order declaring that the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.