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One point worth watching on the @thatginamiller challenge. English public law requires the defending public authority fully and honestly to disclose the reasoning behind the contested decision.
That duty is known as the duty of candour. It is explained - and guidance given to central government on how to comply with it - here. assets.publishing.service.gov.uk/government/upl…
It requires the government solicitor to make sure, among other things, that all relevant and potentially relevant documents are collated and reviewed.
In the present case, that would appear to include e-mails, Ministers’ what’s app messages and any other document that would cast light on the reasons why this particular prorogation was sought.
Having reviewed those documents, the solicitor and government counsel have a strict duty to ensure that a full and accurate picture of the true reasons for the decision is placed before the court. That may well mean disclosure of key documents.
Any witness statement by a minister or civil servant explaining the reasons for the decision has to be complete and accurate: the maker of the statement is in contempt of court if that duty is breached.
One of the issues I am sure the Miller team will be on to is ensuring that the duty of candour has been fully complied with in this case.
(As an aside, it’s notable that the US rules on judicial review don’t require such candour: only exceptionally do you go beyond the administrative record or inquire into real motives. See supremecourt.gov/opinions/18pdf… at pages numbered 23-29).
But that case is also a good example of why digging deeper matters: it was only because the lower court had dug deeper that it turned out that the public explanation was in fact “incongruent with what the record reveals about the agency’s priorities and decisionmaking process.”
