Gina Miller and a team of top lawyers are launching their second major legal challenge in the ongoing Brexit process, arguing it would be “constitutionally unacceptable” to shut down parliament to prevent MPs blocking a no deal exit from the EU.
Assembling the same team of lawyers from Mischon de Reya who successfully won the high-profile 2017 supreme court ruling giving MPs the right to a vote before triggering Article 50, the new legal challenge comes in response to expected next prime minister Boris Johnson’s refusal to rule out using what is known as the proroguing mechanism.
In contrast to Johnson’s commitment as next prime minister to take the UK out of the EU without a deal on October 31 if necessary, various MPs including David Gauke and Philip Hammond have been outspoken in the past few weeks about blocking a no deal exit. Equally, back in March a majority of MPs voted against leaving the EU with no deal. Parliament has several options to try and block such an outcome, including holding a vote of no confidence in the government, trying to alter legislation or simply putting pressure on the government.
Proroguing parliament has been suggested as a way for Johnson to overcome these obstacles. Parliamentary sessions are ended when they are prorogued by the Queen, closing parliament and stopping any further legislation until a new session starts.
The current parliamentary session has been ongoing for nearly two years in order to address the legislation for Brexit.
Although officially at the Queen’s command, the government effectively decides when to prorogue parliament. By closing parliament in the run up to Brexit, MPs would be locked out of the process, unable to stop the UK crashing out on October 31.
In a letter to Johnson, Miller’s legal team wrote that using this mechanism “would seriously undermine parliamentary sovereignty”, stating that he “would be closing the doors of parliament to prevent it from legislating on the most important political issue of the day, when time is of the essence”.
The letter goes on to say that “in such circumstances it would be unlawful for [Johnson] as prime minister to advise Her Majesty to prorogue parliament for the purpose of preventing parliament from considering the enactment of a law to stop to UK leaving the EU without a deal”.
In response to the legal challenge, Nigel Farage said that, although Miller had “done her best” to try and thwart Brexit, he is not confident that Johnson would actually be able to prorogue parliament “and get away with it”.
Although many have suggested Miller is influenced by her personal anti-Brexit views, she firmly refuted this, instead saying that “this is very much about defending the central core of our constitution, which is that parliament is sovereign”.
Miller has been a crucial player in upholding the rights of parliament in the Brexit process. She noted that her previous challenge set an important precedent that “parliament cannot be bypassed”.
“Parliamentary sovereignty is the jewel in the constitutional crown,” she argued. “It would be an abuse of [Johnson’s] powers to close parliament to limit the voice of the representatives that we all elect”.
“This case would not change the outcome of Brexit. All it would do is give parliament the voice to shape how we exited or if we did. It would be up to parliament to decide what it did”.
This legal challenge comes after remarks made by former prime minister John Major last week that he would seek judicial review if Johnson pursued the prorogation route. Speaking to the BBC, he declared that using this mechanism would mean “that a prime minister…will close down parliament so that he can bypass it until his policy comes into operation”.
“Nobody has done that since the Stuart era and it didn’t end well. And it shouldn’t end well,” he added.
The Brexit process has been fraught with domestic complications. This legal challenge will likely force the next prime minister to find another way to address the cacophony of competing views amongst MPs, after indicative votes in March gave no outright majority for any way forward.