Just as the inevitable Gina Miller and others are gearing up to go to Court about Prorogation which seems a doubtful enterprise – anything to get into the headlines and on telly! – RemainCentral has published some lawyerly opinions and some ‘advice to MPs’. we’ll look at that in detail below.
First, the pro and con of a legal case on prorogation, according to The Times who have asked Lord Pannick QC (he represented Gina Miller) for the ‘case against:
“Lord Pannick, QC, believes those seeking a judicial review of the decision to suspend parliament have every chance of success: “The courts would not entertain a challenge to a personal decision by the Queen, because she, the head of the UK’s constitutional structure, is immune from legal process.”
However, he said what could be challenged “is the legality of the advice on prorogation given by the prime minister”. According to the QC, Sir John and any other claimants “would need to show that the advice breaches a fundamental legal principle” — and one potentially would be the sovereignty of parliament.” (link, paywalled)
So – not as clear-cut as the Remainers would want us to believe. For the ‘case pro’, The Times asked the former Supreme Court Judge and historian Lord Sumption:
“Lord Sumption, who is also a respected historian, said that while it may be unconventional to prorogue parliament as the Brexit deadline looms, doing so is entirely legal. “I don’t think what the prime minister has said he is going to do is unlawful,” he said. […] The only objection is that the decision has been taken for questionable political motives. But that is not something the courts should rule on.” (link, paywalled)
What then can our oh-so-beloved Remainers do, given that a legal case isn’t looking very promising? The Times has come up with a lovely catalogue of possibilities which are intriguing. The title is plain and to the point: “The six ways that MPs can still block no-deal” (link, paywalled). From the top, starting with the first point:
The idea many anti-no-deal MPs are most attracted to is using the Standing Order 24 procedures for emergency debates. On Tuesday morning they would lodge a request with the Speaker for an emergency debate.
SO24 debates usually do not end in substantive, binding votes. But John Bercow could tear up precedent and allow a vote on taking control of the Commons order paper on a given day, presumably Wednesday.
MPs would at that point try to pass, quickly, primary legislation requiring Boris Johnson to seek and implement a third Brexit delay. He would have to comply, but the legislation must be watertight and leave no scope for Mr Johnson to refuse an extension or persuade the EU not to offer one.
Moreover, there is a problem with the House of Lords where there are no guillotine motions and peers can talk for as long as they like. The chamber is overwhelmingly anti-no-deal but it might run out of time in the event of a concerted filibuster attempt from the government before prorogation.” (link, paywalled)
This is similar to the exercise in March where the Cooper-Letwin Bill made Ms May crawl to Brussels and ask for an extension. Would this work a second time? Would Bercow try and out-wit Jacob Rees-Mogg? Everything is possible … The next point:
“Vote of confidence and general election
If Jeremy Corbyn were to call a vote of confidence in Mr Johnson, only a simple majority would be required. At that point, under the Fixed-term Parliaments Act, a 14-day period is triggered during which others can seek to command a majority. Assuming no one else can do so in time, a general election will follow.
But this is risky for anti-no-deal MPs because Mr Johnson could choose a polling day after October 31, ensuring that the UK leaves the EU.” (link, paywalled)
Indeed so, and word from No 10 has already come, saying the choice of a polling day is theirs. Onto the third point:
“Vote of confidence and caretaker government
The surest way of avoiding a mid-election Brexit is to use the 14 days to install a caretaker government, which would secure a Brexit delay and then call an election or a second referendum.
It is hard to see enough Conservative rebels and independents being willing to install Mr Corbyn, even briefly, in Downing Street.
If that becomes clear early in the 14-day period, Westminster will enter a period of feverish speculation about whether others, such as Harriet Harman, Ken Clarke or Sir Keir Starmer, might be able to command a cross-party majority to avert no-deal.” (link, paywalled)
Given the rather inconclusive meeting of those ‘rebels’ on Tuesday, it’s hard to see them succeed with that ploy. One thing this would achieve is making Parliament, themselves and indeed our country into an international laughing stock. Point four is next:
More than 70 MPs and peers have asked the Scottish courts to make an emergency ruling blocking the prorogation and last night Gina Miller announced she would challenge the prime minister in the courts too. It would be extraordinary if the courts intervened.” (link, paywalled)
See the lawyerly advice pro and con above. If however the Remainers want to waste more of their money on lawyers that’s entirely up to them. Continuing with the fifth point:
Under a plan pushed by opposition parties including the SNP, the Liberal Democrats and the Greens, 47 MPs have signed an early day motion demanding a “humble address” to the Queen asking her not to prorogue parliament before November 8.
But early day motions are not binding and the humble address procedure, previously used to command the release of Brexit impact assessments, is complicated.” (link, paywalled)
Complicated … not binding … ah, but it would create more headlines for the Remainers and they would get invited to the TV studios on a semi-permanent basis … Finally, to the big, sixth point, the one we must resist with all our might:
“Bring back May’s deal
Should Mr Johnson make it as far as the Queen’s Speech and a new session, then Mr Bercow’s ruling this year that MPs cannot vote on the same Brexit deal twice in the same parliamentary session would no longer apply. Intriguingly this was pointed out yesterday by Harriett Baldwin, who was a minister under Theresa May and was sacked by Mr Johnson.
With days to go before a possible no-deal it is just feasible that anti-no-deal MPs will try to force another vote on Mrs May’s deal and hope to persuade Remainers that it is the lesser evil.” (link, paywalled)
Well, yes – that’s perfectly true, but what if Johnson gets a ‘new deal’ from Brussels? Remember, the EU head honchos meet for their Council Session on Oct. 17th and may well agree to Johnson’s ‘New Deal’ – which we fervently hope won’t be the May Deal.
The Queen’s speech debate will take place on the 21st of next month. So it’s all to play for in our Remain HoC. If the Remainers were clever, they would shut up until then – but as we’ve already seen this year: clever they ain’t.