ANOTHER DAY, ANOTHER extraordinary development in the tale of Brexit.
Yesterday it was a threat by former prime minister John Major to take legal action against the decision of a future prime minister, most likely Boris Johnson, over the potential suspension of parliament to force Brexit through.
It comes after Johnson has refused to rule out proroguing parliament should it seek to block a no-deal Brexit on 31 October.
But what would it mean to ‘prorogue’ parliament and why has it become the latest fissure among senior Tories?
Well, in large part it’s about numbers.
The House of Commons has found it next-to-impossible to agree a way forward on Brexit, but in March a majority did vote to rule out a no-deal exit.
The vote does not stop a no-deal from happening but it does demonstrate that the House of Commons is not in favour of such an outcome.
The election of a new Prime Minister alone, be it Johnson or Jeremy Hunt, is unlikely to change the numbers so the new leader will face the same one as his predecessor.
It has been suggested that one way for the next Prime Minister to ensure Brexit happens one way or another and without the dissent of the House of Commons is to simply end the current parliamentary session.
The suspension of parliament is known as prorogation but it is different from the dissolution of the house, which would necessitate a general election.
It’s been suggested that the end of the parliamentary session would last only a couple of weeks, enough to see Brexit through but also having the effect of making it impossible for Brexit bills to be passed in the house.
So, does the PM have the power to do this?
No, what complicates this matter further is that the power to prorogue parliament rests with the British monarch.
This means only the queen can prorogue parliament, something she would do after a request from the prime minister.
The UK has no written constitution so there is some debate as to whether the queen could refuse the request and, if so, in what circumstances.
Major said yesterday that in his opinion that it would be “almost inconceivable” for the queen to deny the request.
The former prime minister said it is in those circumstances that he would launch a legal challenge. Crucially though, such a challenge could not be taken on the actual granting of the prorogue itself.
The queen is the highest authority in the UK and as such she is immune from the legal process. The courts derive their power from her rather than vice versa.
So what Major and others have argued is that the prime minister’s advice to the queen could be challenged and that this would be the legal route taken.
By way of looking at precedent, British QC David Pannick recently cited a Canadian example that could be seen as similar.
Writing in The Times, Pannick detailed the instance in 2008 when Canada’s minister asked the governor-general to prorogue parliament to avoid a vote of no confidence.
The governor-general, who is the monarch’s representative in Canada, granted the request but also took the view that she was able to refuse the request if she wished.
“If the issue arises in October in the UK, the Queen would be at the centre of a political storm whatever her decision,” Pannick wrote.
“Buckingham Palace advisers would be likely to welcome a challenge to the legality of the prime minister’s advice.
That would enable the Queen to grant a short prorogation while the courts urgently — and it would need to be urgently — heard argument and ruled.
Up until now all this talk has been rather speculative. But with Johnson refusing to rule it out and Major now openly considering the prospect, the issue is one that will continue to bubble in the background as the next leader takes over.
What happens then is even trickier to predict but some even more extraordinary scenarios have already been discussed.
Just one example came from former Conservative leadership candidate Rory Stewart.
Stewart has threatened to “sit across the road” in an alternative parliament should Johnson succeed in “locking the doors of parliament” to force Brexit through.
It’s another once inconceivable prospect that suddenly seems much more relevant than ever before.
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