Brexit: Lessons in tone when producing records

“The lady doth protest too much, methinks” [Hamlet, Act 3, scene2]

So it is now said when a person’s protestations are laid on too heavily. We see through their protestations to their true purpose.  Protestations when overdone imply a lack of sincerity.

Amongst all the other legal challenges that the Brexit process has brought to us, the Scottish Court of Session has delivered a stunning demonstration of the dangers buried in the wording, language and tone of documents.

The production of many records can be compelled – in particular in legal proceedings and investigations. There are some common law protections, such as legal professional privilege and cabinet confidentiality, and various statutory protections such as environmental audit privilege. However, these apply to a limited range of records. For the rest, in particular emails, there is a risk that they must be produced. Careless and damaging statements can then become embarrassing in every sense of that word.

It is obvious that records should avoid:

  • disparaging and derogatory comments
  • personal attacks
  • careless admissions of wrong doing
  • speculation (in particular about the competency with which activities are carried out or of people)

The judgment of the Court of Sessions points to another danger: a danger of tone, of trying to cover your tracks, of protesting too much.

Readers will be familiar with the Brexit process and the decision by Prime Minister Boris Johnson to request the Queen to prorogue Parliament for 5 weeks to 14 October 2019. That decision was made in the context where the deadline for a Brexit deal is 31 October 2019. The decision to request the Queen to prorogue Parliament was challenged in the Scottish Courts. The documents before the Court included a memorandum of 15 August 2019 from the Director of Legislative Affairs to the PM’s Office. That memorandum referred to the need to prorogue Parliament to enable the new legislative agenda to be set. The memorandum said:

Finally, politically it is essential that parliament is sitting before and after the EU Council- MPs and Peers must be in a position to consider what is negotiated, and hopefully pass the Withdrawal Agreement Bill.  If there is no deal, they need to have an opportunity to hear what you have to say, and respond accordingly.

The Memorandum discussed the length of time that Parliament has been prorogued in the past (which was relevantly less than 5 weeks and usually much less).

Other documents produced included minutes of a cabinet meeting in which it was emphasised that

the decision to prorogue Parliament for a Queen’s Speech was not driven by Brexit considerations …


… any suggestion that Government was using this as a tactic to frustrate Parliament should be rebutted

Various other documents included similar protestations.

The judges each note the context of the request to prorogue Parliament, including the Brexit process, the proceedings themselves (which were commenced prior to the request to the Queen) and the fact that there is no explanation as to why Parliament needs to be prorogued or why this needs to be for a 5-week period. Each judge then determines that the real reason is centred on Brexit:

…the tenor of the PM’s remarks , and the discussion around them, point to the various factors being used publicly to deflect from the real reason for the prorogation …That reason, as is reflected in the frequent references to it in the papers, centred on Brexit and not the intervention of the party conference or the new legislative programme. [Lord Carloway]

One can protest too much, but even if Parliament is to be given an opportunity ‘to make clear its views’ that does not mean that it is intended that it should have the opportunity to do anything about them… when the manoeuvre is quite so blatantly designed to frustrate Parliament’ at such a critical juncture in the history of the United Kingdom, I consider that the Court may legitimately find it to be unlawful. [Lord Brodie]

In my opinion nothing in these documents can be said to provide any rational explanation as to why Parliament should be prorogued as early as 9 September…I have come to the conclusion that the only inference that can be properly drawn on an objective basis is that the government, and the Prime Minister in particular, wished to restrict debate in Parliament for as long as possible… [Lord Drummond Young]

Of course the decision may be reversed but the point is that the strenuous denials in the documents,  in particular when read in context and in the absence of a rational alternative reason for the prorogation, appear to have had the opposite effect to that which may have been desired. They did protest too much. It is an important lesson for everyone preparing records – in particular of contentious matters and decisions. Viewed in the cold light of a Court,  the tone and content of your communications may have quite a different effect to what you think.

It may be best to keep it bland, simple and frank.

This article was written by Maddocks partner Patrick Ibbotson

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