John Major By Chatham House (CC-BY-2.0)

Image by Chatham House (CC-BY-2.0)

The former Prime Minister John Major has stated that he will start a judicial review procedure against Boris Johnson if he attempts to prorogue parliament to force through a no deal Brexit.

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The former PM and Remainer, John Major, has stuck his oar into the Brexit debate again by saying that he will start a judicial review case against Boris Johnson if he becomes the new PM and tries to prorogue parliament in order to stop MPs blocking a no-deal WTO Brexit.

Now, I've got to say that, as far as I'm concerned, this move is designed purely to do as much damage as possible to the UK's negotiating position in the hope that Brexit can be reversed altogether, in due course.

And the Independent reports a senior source close to Boris as telling a BBC reporter that in making this statement, John Major had "gone completely bonkers".

Now, if the former Tory PM did start a judicial review I bet it would get priority all the way down the line and any possible judgment would be very swift against a Boris prorogation.

Compare that to the Robin Tilbrook judicial review case against the government for unlawfully extending the Article 50 process beyond March the 29th and all the delays in the courts dodgy stuff going on there.

And if John Major is away when something important regarding that judicial review needed attention, I bet he'd get a personal call just to make sure he knew. No sending it quietly through the post while he's away with a seven day deadline attached.

But, prorogation of parliament is one of what is called the 'prerogative powers'.

And, although prerogative powers can be subject to judicial review in certain circumstances, according to the House of Commons briefing paper number 03861 on the Royal Prerogative, judicial review cannot be applied to a prerogative power exercised personally by the monarch.

And according to the parliament website:

"The Queen formally prorogues Parliament on the advice of the Privy Council."

So, checking out how this works, as far as I can see, although there are about 650 Privy Councillors, when the Privy Council meets it consists of three or four current government ministers meeting in the presence of the Queen. One of these has to be the Lord President of the Privy Council, which at present is Tory MP and Leader of the House of Commons Mel Stride. One assumes that the Prime Minister would also be there.

The whole Privy Council only meets for the accession of a new monarch or when an unmarried monarch announces the intention to marry.

So, the meeting to look at prorogation would, it seems, be held with a handful of ministers and advice given, with the Queen making the actual decision and she would be the one to then order the prorogation.

So one has to wonder whether this could actually be subject to judicial review at all.

But I bet it'll keep some fare on the table for one or two constitutional lawyers.

So, this may be end up being an empty threat – but given the times and the stakes and the fact it involves Brexit, you just never know.

Sources:

https://www.independent.co.uk/news/uk/politics/brexit-boris-johnson-no-deal-parliament-suspend-prorogue-judicial-review-a8998136.html

https://www.parliament.uk/about/how/occasions/prorogation/

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7460

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