Thread by @fascinatorfun

Last night in the ITV leadership debate Hunt ruled out proroguing Parliament but Johnson refused to.

Major: I will seek a judicial review to stop Parliament shutdown

He suggests that the advice given to the Queen is subject to JR. See more notes below

bbc.com/news/uk-politi…

2/. He suggests it would be inconceivable the Queen would refuse such a request but the PM’s advice to the Queen IS subject to challenge.

In fact I think a “bad faith” decision to prorogue Parliament in order to frustrate Parliamentary Sovereignty IS subject to challenge.

3/. “The Speaker, John Bercow, has stated that he will not permit Parliament to be prorogued in such a way. Prorogation, however, is within the gift of the Monarch, not the Speaker.”

@ConUnit_UCL lays out the issues in more detail.

ukconstitutionallaw.org/2019/06/10/sam…

4/ “It is not clear what would happen if the Queen prorogued Parliament and the Speaker refused to be prorogued but it is certain that it would create a constitutional crisis.

Could such a crisis be worked out in the courts?”

5/. ”The power to prorogue Parliament falls within the royal prerogative. This power was expressly preserved by section 6(1) of the Fixed Term Parliaments Act 2011.”

The prerogative is, with certain exceptions, subject to judicial review.

6/. “Certain prerogative powers are, however, excluded from review. It is generally understood that these include matters of pure international law, the Royal Assent, and the use of “personal” prerogative powers. This third class includes the power to prorogue Parliament.”

7/. “The courts may determine that to prorogue Parliament so as to prevent Parliament from exercising control over Brexit is outside the scope of the prerogative power.”

8/. But the obvious rebuttal is Parl set the notice period in motion, and declined to legislate to require revocation in specified circumstances, despite being given the opportunity to do so.

Yes. Looking at you all MPs and especially Labour MPs. Willing to put jobs at stake.

9/. “It is almost certainly beyond the power of the Prime Minster to advise the Queen to prorogue Parliament in order to frustrate the will of that same Parliament.”

10/. “It is also arguably outside the scope of the Queen’s prerogative power to exercise it so as to frustrate the will of Parliament.”

11/. The HofLords has previously found that “the executive is not permitted to use prerogative powers to frustrate the will of Parliament.

Both Houses of Parliament have expressed the view that a “no deal” Brexit should not be permitted.”

12/. But Parliament is sovereign

It is hard to see how any advice given to the Queen by the PM or otherwise is likely to be regarded as anything other than “bad faith” if it’s purpose is to frustrate Parliamentary Sovereignty

Similarly the Queen exercising it for that purpose

I expect to see much debate ahead on the appropriate and available remedies available.

I need to do some more digging on that one.

Watch this space.