11 July 2019

Raphael Hogarth assesses Sir John Major’s threat to take the Government to court if Boris Johnson tries to prorogue Parliament – and says it is a challenge which should be taken seriously.

Boris Johnson would face plenty of hurdles if he tried to prorogue Parliament in order to force through a no deal Brexit. Sir John Major has added a new one, saying that he “would be prepared to go and seek judicial review to prevent Parliament being bypassed”.

Supporters of the Johnson campaign have been quick to call this “a stunt”, “completely bonkers” and “completely mad”. But they should not be too quick to dismiss the idea of a legal challenge. It might turn out to be successful – but it would be much better if we never got the chance to find out. Such a court case would be politically and constitutionally ugly, and could only ever happen if a new prime minister had shown an irresponsible disregard for Parliament.

Lawyers disagree on whether proroguing to stop no deal would be a lawful use of executive authority

The prorogation of Parliament is a two-stage process. The Prime Minister advises the monarch to prorogue, and then the monarch exercises her power under the royal prerogative – the last vestiges of the powers enjoyed by the Crown – to prorogue. Any legal challenge is more likely to focus on the minister’s advice than on the Queen’s decision, and the High Court would be invited to declare that such advice was unlawful. There might even be an attempt to ask the courts in advance whether such advice would be lawful.

Opinion is divided as to whether such a challenge would succeed. Lord Pannick QC, who successfully argued before the Supreme Court that an Act of Parliament was needed to trigger Article 50, has suggested that the court would likely rule such a prorogation unlawful. This is because a prime minister would be trying to bypass Parliament on an issue of “significant constitutional importance” – and trying to evade Parliament precisely because MPs have previously said they want to prevent a no deal Brexit.

Others disagree. Professor John Finnis QC argued in favour of prorogation when the House of Commons was wresting control of the parliamentary timetable from the Government in order to outlaw no deal in April. There is some doubt over whether prorogation could even be the subject of a judicial review and, moreover, unlike with the Article 50 case – in which the Supreme Court ruled that rights brought into law by the 1972 European Communities Act could not be removed by prerogative powers – it is not immediately obvious what rule of law the Government would be frustrating.

Parliament could legislate to make prorogation harder – though that comes with its own constitutional headaches

If Parliament legislated to indicate its opposition to either no deal Brexit or prorogation, then any prime minister would be on much shakier ground advising the Queen to prorogue in order to bring about a no deal. So far, however, Parliament has not done so. In the European Union (Withdrawal) (No. 5) Act 2019, Parliament made clear its opposition to a no deal Brexit on 12 April – but that deadline has been and gone. Parliament has also passed a number of motions opposing no deal, but these do not have the force of law – and none relate to the 31 October deadline.

MPs have been trying to change this. Dominic Grieve MP, the pro-EU Conservative backbencher, proposed several amendments to the Northern Ireland (Executive Formation) Bill so that the threat of prorogation would be “banged on the head”. But the only amendment which passed was one requiring the Government to report on the progress of Northern Ireland power-sharing talks every two weeks from 9 October to 18 December. While that does not itself rule out prorogation, it might make a legal challenge to prorogation a little stronger as the Government would not be able to meet its statutory duties to report to Parliament unless Parliament were sitting.

Even if a majority of MPs backed a bill which more explicitly prevented a prime minister from proroguing Parliament, a constitutional wrinkle would remain. Erskine May, the parliamentary bible, says that bills affecting the royal prerogative (including the prerogative to prorogue Parliament) require “Queen’s consent”. This means that, before the bill can become law, a Privy Counsellor – who is usually a serving minister – must indicate the consent of Her Majesty. Her decision is not open to challenge in court and, since the Queen is likely to act on the advice of her ministers, a Boris Johnson government could try to use that advice to veto any anti-prorogation legislation.

However, it is ultimately up to the Speaker whether Queen’s consent is required and, if the Government is ripping up convention to use it as a veto against a majority of the House of Commons, the Speaker might start ripping up convention too. Even if the Government succeeded, it could encourage the courts to control the Government’s exercise of the prorogation power and make a legal challenge more likely to succeed.

Even if proroguing were lawful, it would still be unconstitutional

Sir John Major’s threat is not hollow. A prime ministerial attempt to prorogue Parliament, and to bypass its opposition, would be grounds for a legal challenge – even though there are no guarantees that such a challenge would succeed.

However, the United Kingdom’s ‘political’ constitution comprises not only rule of law, but also conventions and principles that cannot be enforced by the courts. Proroguing Parliament to secure a no deal Brexit by bypassing the clear opposition of the House of Commons would, without a doubt, be highly improper.

Proroguing to avoid a possible vote of no confidence, which could well await a new prime minister intent on a no deal Brexit, would be even worse.

Comments

How can implementing the decision of 17 million people by proroguing parliament be improper.

Any attempt to stop it is trying to destroy our democracy.

It is improper becuase it is an attempt to remove Parliament from the equation, against all historical convention and practice in this country since the Glorious Revolution that Parliament is sovereign. The proper way to proceed in circumstances where the PM cannot secure a majority for his policies in Parliament is for that PM to seek to call a general election.

Presumably you're either joking, or being deliberately provokative, but for the sake of anyone reading this I'm happy to explain.

17m people did not vote for No Deal because no such vote was held. 17m people voted to "Leave" not to "Leave with no deal causing signficant economic damage". There are countless cases of prominent Leave leaders suggesting we follow the Norway model, or the Swiss model, or the Canada model (all of which would involve trade deals) or explaining how the deal would be "easy". To claim that 17m people voted for No Deal would be a huge distortion of the truth.

Further, we have in our democracy a system that includes both binding and non-binding referendums. The Leave campaigns won a non-binding referendum, which has a lower standard of enforcement against campaign fraud. Had the higher level of protections been in place, the result of the referendum would likely have been declared void as the various Leave campaigns broke a significant number of laws.

Perhaps No Deal is your personal preference, but whether we get it or not is not a test of our democracy. On the other hand, claiming that it's okay to shut down Parliament because it will vote against your personal preference does not sound very democratic to me.

Really useful overview of this issue, Raphael. And much appreciated!
I wonder if you might clarify how legal challenges are able to apply to Parliament. Does Parliament not govern itself, through Standing Orders? And, as the judicial is a separate branch of power from the legislative, does this not breach that separation?
Are there any comparable examples of a similar legal challenge in past?

Hi Basia. Yes, under Article IX of the Bill of Rights 1689, "freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". For that reason, the Government might argue as you say, that prorogation is protected by Parliamentary privilege and so is not capable of being judicially reviewed. I'm sceptical as to the merit of that argument, though: prorogation is something done *to* Parliament by the executive, not *in* Parliament. It looks, to me, like the exercise of any other prerogative power.

Thank you for your reply to my question. That is a useful distinction.
More fun ahead, I'm sure.

For the PM''s advice to the monarch to be binding, isn't he supposed to have the confidence of parliament? And if he seeks to prologue in order to prevent parliament voting against him, does that not raise a question of confidence.

The problem with your unwritten constitution is that it is a gentleman's agreement that depends on respect for tradition, custom, and precedent. But where are the gentlemen now? All I see are self-serving bounders prepared to unleash forces that they do not understand and cannot control but think they can exploit.

The American framers assumed abuse of power and built a system against it, which has held so far, even in the age of the Orange Orangutan is just about holding.

Is the monarch really above the law ? A well known monarch was reminded on meeting his executioner outside westminster hall & another abdicated before world war II

This is all very fascinating. You say "it is ultimately up to the Speaker whether Queen’s consent is required". Could you expand on that and how it fits in with section 1 of the Royal Assent Act 1967?

Royal Consent and Queen's Consent are two different things. Any bill requires Royal Consent to become law. Only some bills require Queen's Consent to become law, including bills which affect the Royal Prerogative. But whether Queen's Consent is required for a particular bill is, unlike for Royal Consent, ultimately up to the Speaker.

Question:
Does the amendment requiring the Government to report on the progress of Northern Ireland power-sharing talks every two weeks from 9 October to 18 December mean that a General Election campaign could not take place between those dates?

I think it is clear that Boris Johnson will not need to prorogue anyway. With a new and determined Leader Of The House, the Fixed Term Parliament Act and the severe shortage of time as allies, the Prime Minister is holding all the cards.

The only way to stop Brexit now is by a majority of MPs supporting a Jeremy Corbyn Labour government after a successful vote of no confidence. And the majority would have to be 'significant'. A majority of one or two would not be sufficient to force Boris Johnson to recognise it as a viable government and not recommend a General Election to the Queen.

The mistake that many in the media and many among those who are trying to stop Brexit are making is constantly saying that Boris Johnson is 'forcing through', or 'taking the UK out' on 31st October. Actually, he is not forcing anything anywhere or taking anyone anywhere. The Article 50 process is just running its course. It is a legal process, voted for by a large majority of MPs. Article 50 clearly states that, at the end of the process, if a deal has not been agreed, then the UK will leave anyway.

Should the government succeed to avoid a deletion of Brexit, then the country would face an election in a time of chaos due to Brexit, resulting in the Conservative party going out of politics. Besides the attempt may fail as the courts could render the suspension illegal and force an extension of the of the time for departure from the EU, it could even lead the Commons to pass a motion of no confidence with Corbyn as PM. All these choices are thrown open and one could have expected such action from a PM who is known for bluster and showmanship and not strategic thinking. Sad state.