Scotland’s most senior judge, Lord Carloway, has said confidential Downing Street memos showing Boris Johnson agreed to prorogue parliament 12 days before he asked the Queen might be published.

The BBC and News UK, the publisher of the Times and Sun, applied to the court of session on Thursday morning to release three papers written by Nikki da Costa and the prime minister where they secretly agreed the prorogation strategy on 15 August.

Three Scottish judges – Lord Carloway, the lord president, and Lord Drummond-Young and Lord Brodie – are hearing an appeal by lawyers for 75 MPs and peers against a decision by Lord Doherty yesterday to reject their claims Johnson has illegally prorogued parliament.

Carloway said on Thursday morning the court could both order them to be published and released in unredacted form, at the end of the hearing, if he felt they were central to the appeal and it was also in the public interest to do so.

The MPs’ lawyer, Aidan O’Neill, revealed earlier this week he had been given three heavily-redacted memos marked “Official sensitive Number 10 only” hours before their court hearing on Tuesday, in breach of a court deadline. All three were circulated inside Number 10, including to Dominic Cummings, Johnson’s chief strategist, and Ed Lister, his chief of staff, but no cabinet minister other than Johnson.

The first on 15 August from Da Costa setting out their prorogation strategy was ticked by Johnson, with his scribbled note “yes”. He replied the next day with a handwritten note which said: “whole September session [at Westminster] is a rigmarole introduced to show the public that MPs are earning their crust. I don’t see anything especially shocking about this prorogation.”

The UK government said they were blacked out because the censored parts were not relevant or protected by “legal professional privilege”. Andrew Webster QC, for the UK government, told the court it was essential to keep them confidential to preserve cabinet confidentiality.

In what O’Neill described as a snub to the Scottish courts, they were not given to the court of session as primary pieces of evidence backed up as affidavits, but were released only because they were being submitted as evidence to the parallel Gina Miller case in London, which started today.

Kenny McBrearty QC, appearing for the BBC and News UK, said it was in the public interest and in the interests of open justice for those memos to be published in full. If Number 10 had decided it was appropriate it was to give them to the court, where they were read out in part by O’Neill on Tuesday, then clearly they were not totally confidential.

O’Neill has made a separate submission to the three judges, arguing the documents could only be redacted by the court. Downing Street could not unilaterally decide which sections to release, without proper scrutiny. Downing Street had also chosen not to apply for a public interest immunity (PII) certificate – an orthodox route to keep key documents secret.


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