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John Major has said he will seek the high court’s permission to join a legal fight to prevent the government from suspending parliament before the Brexit deadline, in an unprecedented legal battle that could pit a former prime minister against the incumbent.
And, hours after the news emerged, the shadow attorney general, Shami Chakrabarti, was granted permission to join the case on behalf of the official opposition.
In addition, Labour’s deputy leader, Tom Watson, has said he will seek to intervene in his role as an MP, while the Liberal Democrat leader, Jo Swinson, said she too was seeking to join the case brought by the anti-Brexit campaigner Gina Miller aimed at preventing Boris Johnson from proroguing parliament from next week until mid-October.
Major, who has been a prominent critic of the government’s Brexit policy, had previously vowed he would mount a legal challenge if Johnson sought to prorogue parliament in order to curtail parliamentary debates or legislative efforts to stop no deal.
Prorogation is the official term that marks the end of a parliamentary session. After being advised to do so by the prime minister, the Queen formally prorogues parliament. This takes the form of an announcement in the House of Lords on the Queen’s behalf. It is a speech, written by the government, which usually describes the bills that have been passed during that session and summarises what has been achieved.
It means that all work on existing legislation stops, and MPs and Lords stop sitting. Prorogation also automatically kills any bills, early day motions or questions to ministers going through parliament.
Parliament can then be reopened a few days later with a fresh slate of legislation intentions, set out in a new Queen’s speech at the formal state opening of parliament.
“I promised that, if the prime minister prorogued parliament in order to prevent members from opposing his Brexit plans, I would seek judicial review of his action,” Major said in a statement on Friday.
“In view of the imminence of the prorogation – and to avoid duplication of effort, and taking up the court’s time through repetition – I intend to seek the court’s permission to intervene in the claim already initiated by Gina Miller, rather than to commence separate proceedings.
“If granted permission to intervene, I intend to seek to assist the court from the perspective of having served in government as a minister and prime minister, and also in parliament for many years as a member of the House of Commons.”
Major is set to be represented by the QC and former minister Edward Garnier, who was solicitor general under David Cameron and is now a Conservative peer.
The former prime minister had made the commitment in July that he would challenge Johnson when rumours began that the latter would use prorogation to force a no-deal Brexit – though under the current terms parliament would now return two weeks before the Brexit deadline.
At 11pm UK time on 31 October the UK would, by default, become a “third country” in terms of relations with the EU, with no overarching post-Brexit plan in place and no transition period. The UK would no longer be paying into the EU budget, nor would it hand over the £39bn divorce payment.
The UK would drop out of countless arrangements, pacts and treaties, covering everything from tariffs to the movement of people, foodstuffs, other goods and data, to numerous specific deals on things such as aviation, and policing and security. Without an overall withdrawal agreement each element would need to be agreed. In the immediate aftermath, without a deal the UK would trade with the EU on the default terms of the World Trade Organization (WTO), including tariffs on agricultural goods.
The UK government has already indicated that it will set low or no tariffs on goods coming into the country. This would lower the price of imports – making it harder for British manufacturers to compete with foreign goods. If the UK sets the tariffs to zero on goods coming in from the EU, under WTO “most favoured nation” rules it must also offer the same zero tariffs to other countries.
WTO rules only cover goods – they do not apply to financial services, a significant part of the UK’s economy. Trading under WTO rules will also require border checks, which could cause delays at ports, and a severe challenge to the peace process in Ireland without alternative arrangements in place to avoid a hard border.
Some no-deal supporters have claimed that the UK can use article 24 of the General Agreement on Tariffs and Trade (Gatt) to force the EU to accept a period of up to 10 years where there are no tariffs while a free trade agreement is negotiated. However, the UK cannot invoke article 24 unilaterally – the EU would have to agree to it. In previous cases where the article has been used, the two sides had a deal in place, and it has never been used to replicate something of the scale and complexity of the EU and the UK’s trading relationship.
The director general of the WTO, Roberto Azevêdo, has told Prospect magazine that “in simple factual terms in this scenario, you could expect to see the application of tariffs between the UK and EU where currently there are none”.
Until some agreements are in place, a no-deal scenario will place extra overheads on UK businesses – eg the current government advice is that all drivers, including lorries and commercial vehicles, will require extra documentation to be able to drive in Europe after 31 October if there is no deal. Those arguing for a “managed” no deal envisage that a range of smaller, sector-by-sector, bilateral agreements could be quickly put into place as mutual self-interest between the UK and EU to avoid introducing or to rapidly remove this kind of bureaucracy.
Major told BBC Radio 4’s Today programme in July that he felt strongly about parliamentary tradition, having served in the Commons for two decades.
“I’m not going to stand by and see them disregarded in this fashion,” he said. “It is utterly, utterly and completely the wrong way to proceed.”
Announcing the high court’s decision to grant her permission to intervene on Friday evening, Chakrabarti said: “Parliamentary sovereignty remains the foremost and overarching principle of our constitution.
“Whatever far-right play-book No 10 may be copying from, the abusive shutdown of our legislature won’t wash under United Kingdom constitutional law.”
Watson said he would join Miller’s action and be represented by Mischon de Reya and the QC David Pannick, who are also Miller’s representatives. “I attend to assist the court from the perspective of an active legislator,” he said.
Swinson said the Lib Dems “are doing all we can, both in the courts and in parliament, to prevent both the shutdown of our democracy and a no-deal Brexit”.
The government also faces parallel legal actions by anti-Brexit campaigners in Edinburgh and Belfast.
A Scottish judge temporarily rejected calls for an effective injunction to stop prorogation at a hearing on Friday, after it was claimed during an emergency court hearing on Thursday that Johnson was acting illegally and in breach of the constitution. A full hearing of the case has been fast-tracked to next week.
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