Opponents of Boris Johnson’s plan to suspend parliament for five weeks will face an uphill struggle to defeat his plans in the courts with lawyers raising doubts over whether the prime minister’s move is even open to legal challenge.
As Europhile MPs race to find a way to prevent Mr Johnson from taking the UK out of the EU on October 31 without a deal, campaigners have launched three separate legal cases aimed at blocking the decision to prorogue parliament.
Although Mr Johnson has said the move, which provoked a constitutional uproar on Wednesday, was aimed at laying out his legislative priorities, his opponents say it is a bid to thwart parliamentary efforts to stop a no-deal Brexit.
A judicial review challenge in Scotland filed by more than 70 parliamentarians, including Joanna Cherry of the SNP, is the court case likely to be heard first. On Friday the Court of Session in Edinburgh will rule on whether it should grant the petitioners an emergency injunction to halt the Commons shut down ahead of a full hearing next week.
A second judicial review challenge has been filed by anti-Brexit campaigner Gina Miller who won a high profile Supreme Court victory over the government in 2017 forcing it to hold a parliamentary vote on triggering Article 50. She is using the same legal team led by law firm Mishcon de Reya.
On Thursday a third legal challenge seeking an injunction to stop proroguing was filed at the High Court in Belfast by victims rights campaigner Raymond McCord, who has argued that a no-deal Brexit is a breach of the Good Friday peace agreement in Northern Ireland.
However, lawyers believe a key issue in all three cases is whether the proroguing issue will be justiciable — open to legal challenge in the courts — given that prerogative powers are not usually challenged in the courts and are seen as outside their remit.
“This is a very unusual situation and I think they face an uphill challenge,” said David Mundy, partner at law firm BDB Pitmans.
“The Scottish case had been intended to avoid the Queen being asked the question on proroguing. It’s an uphill struggle bearing in mind that it has now happened and the horse has already bolted,” he said.
Charles Brasted, head of public law at law firm Hogan Lovells, said: “There is no dispute that the prime minister is entitled to advise the Queen to prorogue Parliament. But ministerial acts in relation to these “prerogative” powers are not above the law. If it can be shown that the prorogation is intended and has the effect of denying the operation of a fundamental constitutional principle, then that could be found to be unlawful.”
However, he added such a test would be subject to “an exceptionally high bar” — and noted that the government had given other reasons for proroguing — including to bring forward a new domestic legislative agenda.
Another complication is the tight timescale. The High Court and Supreme Court are currently in summer recess until October 1 but can sit for urgent cases and appeals although the legal process can take days or weeks.
Despite the challenges faced by those seeking to challenge Mr Johnson through the courts, lawyers point out that the country is now in an unprecedented situation and the government has been caught out by surprise legal defeats on its Brexit policies before.
“Brexit is straining our constitution to its very limits and these questions are all new and the answers are unknown,” added Mr Mundy.
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