How appalling that the issue has been allowed to get this farby Sionaidh Douglas-Scott / July 16, 2019 / Leave a comment
Last week, high profile figures said that they stood ready to take legal action against a prime minister determined to force through a no-deal Brexit by prorogation—ie suspension—of parliament. (Prorogation is a personal prerogative of the Queen, taken on the advice of government ministers).
As Boris Johnson, very likely the UK’s next prime minister, has continually refused to rule out this “nuclear option,” John Major stated on the Today programme that he “would be prepared to go and seek judicial review to prevent parliament being bypassed.” Gina Miller, whose successful legal action required Theresa May to obtain parliamentary consent before triggering Article 50, similarly said she would take immediate legal action. Her lawyers, Mishcon de Reya (the same legal team as in the Miller Supreme Court case) have written to Johnson, stating that prorogation would be not only “constitutionally unacceptable” but also unlawful.
If the constitutionally unthinkable did happen, what are the chances of the courts stopping prorogation? I would argue that they are fairly high. But what constitutional dystopia are we in that the question is even necessary?
To recap: the issue of prorogation arose because several politicians and lawyers suggested it should be used. Oxford emeritus law professor John Finnis, in an article in the Telegraph on 1st April, wrote “the legal and democratic principles of our constitution now point to one resolution of the EU withdrawal crisis: prorogation of parliament for two or three weeks.” This view was immediately challenged, including in a letter to the Times on 3rd April signed by many constitutional experts. Yet politicians continued to push for prorogation. Before being knocked out of the Tory leadership contest, Dominic Raab stated that he was ready to suspend parliament.
The argument against prorogation has been made by many (including myself recently in Prospect). Speaker John Bercow stated that “parliament will not be evacuated from the centre stage of the decision-making process on this important matter.” A recent Times article by Lord Pannick QC provides a helpful precis of the main arguments. First that proroguing parliament contradicts parliamentary sovereignty; second that the present urgency of the situation makes prorogation unlawful; and third, that prorogation would be “seeking to evade parliament because it has previously made clear its wish to prevent a no-deal Brexit.” Then there is the issue that prorogation would involve the Monarch politically in Brexit.
As the politicians have not put this issue to rest, it seems the courts will be drawn into it. But how might that work?
It is likely that legal action would take the form of a…