Joanna Cherry: UK government engaged in 'clandestine' tactics

Joanna Cherry QC (pictured) said she had been told by “good sources” that discussions on prorogation had been conducted by the UK Government using WhatsApp messaging, burner phones and private emails in a bid to “cover their tracks”.

Last week, MPs backed a motion ordering the Government to publish communications on its reasons for proroguing parliament, including Dominic Cummings, Boris Johnson’s chief aide, and eight other advisers in Downing Street.

However, ministers blocked the release saying it was “unreasonable and disproportionate”.

Cherry said: “We have reason to believe from good sources that the way the prorogation has been gone about has been done in an underhand, clandestine fashion. To try and cover their tracks, they didn’t put anything in official email, they did it all by WhatsApp, burner phone, private email.

“The Government have refused to produce that, even though Parliament has ordered it to be produced.

“If we were sitting in Parliament, we could hold them in contempt for refusing to do it – but of course we can’t because we are not sitting.”

Cherry said she was alerted to the concerns over the tactics being used in an after-midnight phone call two weeks ago.

She added: “I’ve got reason to believe that people in the government legal services, legal civil servants, feel uncomfortable about what they have been made to do. They are really unhappy about the way the British Government is behaving. I was woken in the middle of the night by a phone call raising concerns over the Government behaving in an unlawful and underhand fashion.”

On Wednesday three judges at the appeal hearing at the Court of Session, chaired by Lord Carloway, Scotland’s most senior judge, found in favour of a cross-party group of 75 politicians challenging Johnson’s move to suspend parliament for five weeks.

Cherry said she had been “reasonably optimistic” they would win the case, and she was “delighted” when the decision was announced.

She said: “My impression was the judges were very unimpressed with the way the British Government was conducting itself and very sceptical about what had happened.

“I went into court on Wednesday morning cautiously optimistic – I thought there was a good chance we were going to win, but in my heart of hearts I was afraid we wouldn’t.

“So when we did, I think I burst out laughing in court as I was so happy.”

Downing Street sources subsequently appeared to accuse the judges of political bias, reportedly saying “the legal activists chose the Scottish courts for a reason”.

The implication is that Boris Johnson lied to the Queen

The comments sparked outrage and Number 10 disowned the remarks.

Business minister Kwasi Kwarteng also provoked controversy by saying: “Many people are saying – I’m not saying this – but, many people ... are saying that the judges are biased.”

Cherry said: “Any suggestion [the judges] are not impartial is absolutely outrageous.

“They are completely independent of British and the Scottish Government and they are impartial. They are also extremely experienced and senior judges.

“Attacking the judiciary is not acceptable – it is fine to disagree with it, of course you can disagree. But to attack their impartiality, especially when they can’t defend themselves, that is the sort of thing that goes on in totalitarian right-wing regimes.

“We are always told that Britain is supposed to be about democracy and the rule of law – but the people who are running Britain at the moment don’t seem to have any respect for democracy or the rule of law.”

The case will now be considered by 11 judges at the UK Supreme Court in a hearing beginning on Tuesday.

The Prime Minister has denied lying to the Queen over the suspension of parliament and insisted it is “absolutely not true”.

However Cherry said she was “cautiously optimistic” the Supreme Court would agree with the conclusions of the Scottish appeal court, saying nobody believed the “nonsense” Parliament had been prorogued for the Queen’s speech to occur.

She said: “If the court was to find it is perfectly okay for a British Prime Minister to suspend Parliament for five weeks during the midst of the biggest constitutional crisis we have had since the Second World War and there is nothing that can be done about that – what kind of a country would we be living in?

“That is not the constitution of a modern democracy and so that is why I think we will win in the Supreme Court,” she added.

Cherry is also at the forefront of another legal challenge at the Court of Session, together with campaigner Jo Maugham QC, aimed at making Johnson obey the law passed by MPs requiring to ask for an Article 50 extension.

If successful, it would mean the court could effectively sign the extension on behalf of Johnson if he refuses to do so, using a power known as “nobile officium”.

The Prime Minister has been given seven days to respond, and Cherry said she expected there would be some kind of hearing.

She added: “As a Scottish lawyer, as a nationalist – I am very proud of what the Scottish court did last week.

“Not because it was a political thing, but because I believe in constitutional democracy and the rule of law.”