Strategic litigation against the prorogation of Parliament

Earlier on in July 2019 Gina Miller, business owner and activist, and her legal team David Pannick QC and Tom Hickman QC, instructed solicitors Mishcon de Reya to write a letter to Boris Johnson. The letter asks for at least seven days' notice of any plan to prorogue Parliament so that its legality can be tested in the courts. Gina Miller's team believes that, because shutting down Parliament involves asking the Queen to exercise prerogative powers, those powers cannot be used unconstitutionally. Shutting out Parliament from a decision over a no-deal exit from the EU would therefore be unlawful.

John Major, a former Conservative prime minister, has raised similar arguments in broadcast interviews. He says he is personally prepared to seek judicial review of any decision to bypass Parliament to allow a no deal Brexit to happen by default on 31 October 2019.

Both of these legal initiatives could be superseded by the action now being taken by Jolyon Maugham QC's campaign group the Good Law Project. The group has given notice to Scotland's Advocate General, Lord Keen, of an intention to bring a case in the Scottish Court of Session to prevent Boris Johnson from suspending Parliament. The group has attracted support from an impressive cross-party group of politicians, including the new leader of the Lib Dems, Jo Swinson, Joanna Cherry QC of the SNP, Heidi Allen the independent MP, and Stella Creasy of Labour. There is also support from the Greens and Plaid Cymru and more politicians are joining this cause by the day.

Why bring this action in Scotland? Well, the courts in Scotland continue to sit through August whereas their English counterparts close down for the summer on 31 July and don't return to work until 1 October. Getting the Scottish case heard in August will allow a decision to be made before MPs return to Westminster in September. Jolyon Maugham has form for this. His group supported Scottish MPs and MEPs who asked the European Court of Justice to make a preliminary ruling on Article 50 in 2018. The result was confirmation that the UK can unilaterally revoke Article 50. The petitioners in the anti-prorogation action will use the precedent set by the Article 50 ruling to show that the Court of Session should state the law in advance of the Queen being asked to suspend Parliament. Watch this space, things could move quickly. Scotland's chief law officer has been asked to respond to the notice within seven days. You can contribute to the funding of the litigation here.

Mary Meakin, solicitor working in legal publishing.

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