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Legal Twitterati sent into overdrive after former PM threatens to take Boris Johnson to court to stop a no-deal Brexit

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John Major says he’d consider lawyering up to stop the Queen suspending the House of Commons

John Major and Boris Johnson

A former Prime Minister has threatened to take his likely successor, Boris Johnson, to court if he tries to suspend parliament to ensure a no-deal Brexit — and it’s set legal Twitter ablaze.

Sir John Major, the Conservative Prime Minister from 1990 to 1997, said this morning that he would personally take a case to stop Johnson “proroguing” the House of Commons. Johnson, heavy favourite in the Conservative leadership race, has refused to rule out cancelling parliament if it tries to stop Brexit going ahead on 31 October.

Constitutional expert Professor Vernon Bogdanor has said that getting parliament prorogued, or suspended, would be legally “straightforward”. The Queen has the power to do so, and would go with the advice of her Prime Minister if he requested her to exercise it.

But Bogdanor said that getting Her Maj involved in politics like that would “would stretch the constitution to its outermost limits, if not beyond”.

In an explosive BBC interview today, Major said:

“The Queen’s decision cannot be challenged in law, but the Prime Minister’s advice to the Queen can, and I for one would be prepared to go and seek judicial review to prevent parliament being bypassed.”

As the BBC’s political editor pleaded for lawyers to weigh in on whether the case would be feasible, many obliged. Charlie Falconer, a former Labour Lord Chancellor, took to the Twittersphere to claim that “most lawyers” think a judicial review along those lines would succeed.

In the same corner is top QC David Pannick, who wrote last month that the High Court would be likely to declare the move unlawful.

The latest comments from across Legal Cheek

And Professor Bogdanor, reached by Legal Cheek this morning, reckoned that the case “might well” succeed. He added that “while there is no precedent for reviewing the advice of the PM to the sovereign, it is clear that prerogative powers in general can be reviewed for unreasonableness, bad faith, or for subverting the powers of Parliament. The key cases are the Council of Civil Service Unions case in 1985 (judgment of Lord Browne-Wilkinson) and the Fire Brigades Union case of 1995″.

But legal commentator David Allen Green tweeted that the chances of the case succeeding would be “zero”.

Meanwhile, acerbic but anonymous academic SpinningHugo debated with Open University lecturer Carl Gardner. Gardner argued that the Supreme Court “would (rightly) see the advice as constitutionally improper and so (less obviously rightly) unlawful”.

Sam Fowles of Cornerstone Barristers has written on the UK Constitutional Law Blog that a judicial review could be successful in theory, although it’s less obvious what remedy the courts could grant.

Major added that suspending parliament to get his own way was a favourite tactic of King Charles I in the 1640s — “and it didn’t end well for him”.

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32 Comments

Anonymous

When would Legal Cheek sink to a new low and start commenting instagram posts? Oh wait!

Anonymous

HA!!

What a total hypocrite

Anonymous

Explains his familiarity with the concept!

Anonymous

I know who Spinning Hugo is. But I won’t tell any of you.

Anonymous

Who cares?

Anonymous

Your mum

Anonymous

I don’t see how John Major taking Boris Johnson to court, or Parliament seeking to block no deal is going to stop no deal. No deal is the default position of the Art 50 process. If the remaining EU 27 get fed-up with Parliament and its prevarication, then they can say, that’s it, time’s up, no deal. Then the EU Parliament takes a vote, and if that vote endorses no deal, then no deal it is…
There are two ways to stop no deal: Parliament votes for the negotiated withdrawal agreement (the EU keep saying its not going to reopen / renegotiate the withdrawal agreement), or Parliament revokes Art 50. Parliament has had opportunities to do both…

Anonymous

I might be wrong as it might be in the document somewhere, but surely the EU can’t renege on the current extension agreement unilaterally before Oct 31? The ECJ would say that was forcing a MS to leave against its will (Wightman).

Anonymous

I wasn’t suggesting that the EU would renege on the current extension. I was suggesting that a former PM taking a potential future PM to court to stop no deal would not stop no deal given that no deal is the default position; and if the remaining EU27 grow tired of the UK Parliament going round in ever decreasing circles, it could implement the default, at the appropriate time.

Anonymous

My apologies, I misunderstood your point.

Anonymous

No Problem, thanks for the apology.

Anonymous

This is too civil for Legal Cheek.

anon123456789

Not very bright are ya?

It can prevent no deal by preventing the prorogation of Parliament, and therefore leaving open the possibility of a no confidence vote against the government, in which case the EU grants another emergency extension for an election.

Anonymous

Not very bright are ya? The original anonymous said:

“If the remaining EU 27 get fed-up with Parliament and its prevarication, then they can say, that’s it, time’s up, no deal. Then the EU Parliament takes a vote, and if that vote endorses no deal, then no deal it is…”

Your argument assumes that the EU would automatically grant an emergency extension. Anonymous’ point is that they might just get fed up and say “No more extensions: no deal it is.”

Marcus B*****x

Marcus, good of you to drop in, but shouldn’t you be looking into the law relating to bankruptcy rather than yet another lost legal cause?

Anonymous

Reading Twitter really makes me despair for humanity.

Anonymous

Likewise Legal Cheek.

Rupert Measles

and yet here you are

Anonymous

This is an incorrect analysis. The EU Withdrawal Act has 31/10 as the default no deal position, amended from 29/3/18. That date is amendable by SI. That is what happened in March. At that time, the PM negotiated the amended date, and Parliament approved it. The process could be the other way around ie via a motion, the PM is requested to negotiate a new extension, the EU may refuse, but unlikely, and have made clear an extension will be granted if there is a GE or referendum, almost certainly the only two choices available to the new PM.
Also, the Act is subject to secondary legislation being approved in relation to spending for No deal, that hasn’t happened.

Anonandonandon

Correction 29/3/19*. Where is your attention to detail? I hope you’re not a lawyer.

Anonymous

“Whataboutism (also known as whataboutery) is a variant of the tu quoque logical fallacy that attempts to discredit an opponent’s position by charging them with hypocrisy without directly refuting or disproving their arguments”.

Anonymous

Legal Twitterati = Bunch of Absolute Cunts

Anonymous

Word.

And don’t think they’d ever give you a training contract or pupillage.

You have the same vote as they do – one.

Ideas like universal suffrage and the secret ballot don’t just die.

Eugh

“Her Maj”. Really?

Anonymous

I believe the official title is Mrs Windsor Tax Dodging Epitomé of All That Is Wrong With England.

Edwina Vindaloo

😴

Anonyman

Oh please. John Major is just a miserable and bland has been who is trying to remain relevant by doing this, in the same way that Tony Blair and his foul stench still lingers over British politics.

Major just has a bee in his bonnet because he was, quite frankly, one of the worst Conservative politicians of recent times. The UK agreeing to the Maastricht Treaty in 1992 was absurd for starters.

He’s just envious that a current Conservative politician is going to be successful down to the fact that he (maybe genuinely) has truly conservative values.

Now bugger off Major back to that revolting liberal hole from whence you came!

Anonymous

Top bantz.

Anonymous

John major eats babies to live.

Christian Cawley

‘Major added that suspending parliament to get his own way was a favourite tactic of King Charles I in the 1640s — “and it didn’t end well for him”.’

Didn’t end well for Major, either.

JohnAllman.UK

Yesterday, I served a sealed Judicial Review claim form on the Prime Minister and the Brexit Secretary seeking a declaration that the Royal Prerogative alone does not empower the British government to revoke Article 50 notice of the UK’s intention to leave the EU, because the constitutional requirements for such a revocation include the prior
enactment of a statute permitting or requiring revocation, nothing less than an Act of Parliament being sufficient. I wonder if they’ll invite me onto the Today Programme. I doubt it.

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