Putting aside that in 1997 Sir John Major prorogued parliament 19 days before it would have been dissolved anyway to hold a general election, in order to avoid a debate on the damaging report in to the ‘cash for questions’ inquiry, this intervention should be seen as being about more than whether this prorogation is unlawful.
After two days of intense argument over the government’s motives behind the prorogation, the final day of the hearing was set aside for interventions by other ‘interested’ parties and responses by Lords Pannick and Keen.
Star billing undoubtedly went to the intervention by Sir John Major in support of Gina Miller’s action. Major did not address the Supreme Court himself – as appeal courts do not hear from witnesses – but Lord Garnier, the former Solicitor General, made the submission on his behalf.
Sir John Major’s intervention did not add anything new of substance to the legal arguments that the five week prorogation is unlawful and excessive.
However, the intervention was perhaps more eagerly awaited as it would bring the Conservative Party’s thirty-year melodrama over the UK’s relationship with the EU before the UK’s highest court.
After all, a former Prime Minister is accusing the current Prime Minister, from the same party, of being dishonest in proroguing parliament in order to avoid scrutiny during the period up to the 31 October Brexit deadline.
In his 10 page written submission Sir John Major states ‘The Court is under no obligation to approach this case on the artificially naïve basis that the handful of documents, the contents of which nobody has been prepared to verify with a statement of truth, should nevertheless be assumed to be entirely accurate and complete when even members of the Cabinet do not appear to believe them.’
Going beyond the constitutional arguments about the relationship between parliament, the executive and judiciary, Sir John Major’s intervention demonstrates that this hearing is also a proxy fight over political control of the Brexit process and whether parliament or Boris Johnson’s minority government has control over parliamentary business in the days leading up to 31 October.
Cynics may say that, having got the Benn Act through parliament, against the wishes of the government, parliament now seeks to extend its influence over the Brexit process and negotiations.
Perhaps with one eye on future decisions by the government, this case could be seen as a pre-emptive strike to stop a further prorogation after parliament returns on 14 October, which could be timed to coincide with the Brexit deadline of 31 October.
In short, Sir John Major is saying that Boris Johnson cannot be trusted to abide by parliamentary rules and constitutional practices to ensure that parliament can fulfil its constitutional function and scrutinise the government in the run up to 31 October.
The point was reiterated in the afternoon session by Lord Pannick in his response to the submissions, but rebutted by Lord Keen, the Scottish Advocate General, who said that as prorogation is a constitutional convention and not legislated for by parliament, it is not justiciable.
In his view scrutiny of government would continue outside of parliament, when parliament is prorogued, but can this really be said to equate with parliamentary oversight during the five week period of prorogation?
Professor Adam Cygan is Professor of EU Law at the University of Leicester and former research leader at The UK in Changing Europe. This piece was originally published in the Telegraph.