Gina Miller by Keith Edkins (CC-BY-SA-4.0)

Image by Keith Edkins (CC-BY-SA-4.0)

Gina Miller is back threatening to take Boris Johnson to court if he attempts to prorogue parliament in order to force through a no deal Brexit.


So she's back.

Gina Miller has surfaced once again with a threat to take the government to court should the next Prime Minister take the course of proroguing, or shutting down parliament so that MPs can't get in the way of a no deal WTO Brexit.

So, any new Prime Minister feeling forced to prorogue parliament in order to fulfil the democratic will of the people, now has to face former Tory Prime Minister John Major threatening a judicial review, Tory MP Rory Stewart threatening to set up an alternative and probably unlawful parliament across the road from Westminster Palace, the Chancellor of the Exchequer talking about a sit-in by MPs to keep parliament open – unlawfully I again reckon – and now we have Gina Miller threatening court action of her own.

Oh, and before I forget to mention it, John Major himself organised the prorogation of parliament in 1997 to delay a report on the embarrassing 'cash for questions' scandal.

Now, talking to Sky News, Gina Miller said that this was not about stopping Brexit but all to do with defending parliamentary sovereignty.

So the really obvious question here is, has she given financial and or legal support to Robin Tilbrook for his case that argues only parliament, by use of statute law, could have extended the Article 50 process beyond 11pm on March the 29th.

Tilbrook's case is actually based on the same premise as the case Gina Miller won in forcing parliament to use statute law to trigger the Article 50 process in the first place, so is as much about parliamentary sovereignty as that first case of hers and this latest legal threat.

Or does parliamentary sovereignty only matter when it being used to keep us in the EU and therefore in the long run remove the very parliamentary sovereignty that is claimed is being protected?

I'll leave that to you, the viewer, to decide.

Now, as I've said in previous videos last week.

Parliament is prorogued by the Queen, not by the Prime Minister.

And when proroguing parliament the Queen will be acting on the advice of the Privy Council, not the government.

The fact that, when the Privy Council meets, it is usually just a few current serving ministers is surely neither here nor there, as they are meeting as members of the Privy Council.

The Privy Council meeting is also held in the presence of the Queen. Here's what the parliament research briefing says about it:

"The Privy Council meets on average about once a month and these meetings are held in the presence of the Queen. Only current Government Ministers (themselves Privy Counsellors) attend these meetings. The quorom for a meeting is three Privy Counsellors, although four Ministers will usually attend. One of these members will be the Lord President of the Council (the head of the Privy Council Office). He or she is always a Cabinet Minister."

Now, as I've pointed out before the prorogation of parliament is recognised as one of the three personal prerogative powers that the Queen still has, as explained in the House of Commons briefing paper 03861 on the Royal Prerogative. And that distinction of a personal prerogative power is, I think, very important here.

Because the briefing paper also says that not all prerogative powers are subject to judicial review.

The paper says supervision of the courts may not apply in three areas, one of which is:

"Where the power has been exercised personally by the Sovereign, who is not subject to legal process. The provisions of the Crown Proceedings Act 1947, which allows claims to be brought against the Crown (generally, meaning the Government) do not apply to the monarch personally."

Remember that under this prerogative the Monarch has the important power to, at any time, march into parliament herself and shut it down. It is the nuclear option she has if government and parliament start oppressing the people.

In fact earlier this year there were petitions doing the rounds calling on the Queen to do exactly that to ensure we left the EU on March the 29th.

And Gerard Batten, when he was the UKIP leader, also wrote to the Queen in January asking her to use this very power.

So, it seems to me that the prorogation of parliament is outwith the power of the courts to interfere with.

But what Gina Miller's threat does do, is politicise the position of the monarchy in all of this with regard to Brexit.

And I think that is the real aim here. To raise as much publicity about this as possible so as to have people constantly talking about whether the Queen will follow the advice given by the Privy Council and try and plant the seed in peoples' minds that if she does, or does not, it will show the world where she personally stands on Brexit.

Now that is not a position in which any Prime Minister, government or Privy Councillor will want to place the Queen.

But it seems to me that is exactly the position into which Gina Miller wants to put both the Prime Minister and potentially our Queen, in order to further her own political agenda.


Major Prorogued Parliament in 1997 to Suppress "Cash for Questions" Sleaze Scandal

House of Commons briefing paper number 03861 on the Royal Prerogative

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