Judicial review on prorogation will be supported by John Major and Shami Chakrabarti
Boris Johnson’s decision to prorogue parliament for five weeks will be challenged by the legal campaigner Gina Miller in the high court in London on Thursday.
Her judicial review application will be supported by statements from the former prime minister Sir John Major, the shadow attorney general, Shami Chakrabarti as well as lawyers for the Scottish and Welsh governments.
Despite Edinburgh’s court of session ruling on Wednesday that the prime minister’s move to shut down parliamentary debate is lawful, similar arguments will be put to the most senior judges in England and Wales.
The case, expected to last all day, will be argued before the lord chief justice, Lord Burnett of Maldon, the master of the rolls, Sir Terence Etherton, and the president of the Queen’s bench division, Dame Victoria Sharp. The court will initially have to decide whether to hear the case before moving on to consider substantive arguments.
Other senior politicians have requested permission to intervene in the case, but their applications, it is understood, have been rejected. They included Labour’s deputy leader, Tom Watson, the Liberal Democrat leader, Jo Swinson, and the Labour MPs Jess Phillips and Alex Sobel.
On 28 August, Johnson announced that he was seeking royal assent to prorogue parliament – ending the current session – from next Monday, 9 September. MPs and peers will not return until 14 October, effectively preventing debate on Brexit for five weeks at a crucial political moment. The Queen gave her approval.
Gina Miller’s challenge is over the legitimacy of the prime minister’s advice to the monarch. She is due to be represented by Lord Pannick QC, who represented her successfully in the article 50 Brexit case in 2016.
Boris Johnson, the prime minister, who is formally listed as the respondent, is expected to be represented by Sir James Eadie QC. Eadie and Pannick are in the same set of London chambers, Blackstone.
Lawyers for Miller and her supporters will argue that the real purpose of the prorogation is to prevent MPs subjecting the government’s Brexit plans to proper scrutiny and blocking a no-deal exit from the EU. Parliament, it will be said, is sovereign, not the executive.
The monarch is normally bound to accept the prime minister’s advice, so it is not the Queen’s formal approval that is being challenged.
Even though the Scottish court dismissed the application, many senior lawyers believe Miller and her supporters have strong legal grounds to defeat Johnson’s lengthy prorogation.
The Oxford constitutional law professor, Paul Craig, has argued that Johnson in effect acted illegally. “The sovereignty principle inheres in parliament and the totality of members thereof at any one point in time,” he explained. “The very idea that parliament can be swept aside because its view does not cohere with the executive is to stand principle on its head. We are constitutionally impoverished if we regard this as the new constitutional norm.”
Whoever wins, the judgment is likely to be appealed. The supreme court has confirmed a provisional date of Tuesday 17 September to bring together applications from the multiple legal challenges against the prime minister’s decision to prorogue parliament.
Judicial review cases have been launched separately in the Edinburgh, Belfast and London courts alleging that the suspension of parliamentary business for such a long period is unlawful.
Lawyers for the SNP MP Joanna Cherry QC have already indicated that they intend to appeal after their application was turned down by the court of session.
The supreme court does not normally start hearing cases until after the formal opening of the new legal year at the beginning of October. Many justices are understood to be away on holiday. It will be the first time the UK’s highest court has sat for an emergency application outside its normal legal terms.
The article 50 Brexit case heard by the supreme court in 2016 involved 11 justices hearing the high profile case. A similar, odd number – to avoid the danger of a draw – could sit on 17 September.