John Major has dragged the blue-on-blue Tory Brexit war into the courts. Now the law must protect the Commons, and the people

When every convention is being broken, the only way out of the mess is for parliament to get a grip on the nations’ future

When David Cameron unleashed the demons and called his In/Out referendum on EU membership in 2016, he was reportedly much exercised about “blue on blue” action – public rows between members of the Conservative party, and especially between cabinet members and other senior figures.

It was felt, understandably enough, that the spectacle of big-name Tories arguing among themselves would make it harder for the party to heal its wounds and reunite after the referendum was won.

So how’s that turned out then?

Well, we know that of course. Indeed, the first casualty of the Tory in-fighting was old Cameron himself.

Two bloody leadership elections, a couple of Tory splits, some deselections, a few votes of no confidence, resignations and sackings later and the Tory party has ended up with a former Conservative prime minister, Sir John Major, taking another, Boris Johnson, to court. That’s what I call blue on blue action. It is unprecedented. It is almost unbelievable that Major should have thrown his lot in with Gina Miller and assorted opposition MPs. But here we are. It might just work too.

At first glance the case hasn’t got much of a chance. The parallel case at the Court of Session in Scotland was brought under the Claim of Right, 1689, the counterpart of the English Bill of Rights (also 1689). The basis of it is not so much that the prorogation was itself illegal – through there is a case for that too – but that the advice given by the prime minister to the Queen was illegitimate.

In Scotland the wording of the auld act has a delightfully Baroque ring to it – that the British constitution cannot be altered by the “advice of evil and wicked counsellors”. Something very similar will be argued in the courts in London. Another request for judicial review is being presented in Belfast, but more related to the Good Friday Agreement.

Many would judge Johnson to be “evil and wicked” but he has his alibi – new PM, new Queen’s Speech, therefore prorogation, all routine.

Still, it is embarrassing for him and if the case can be made that the constitutional convention of a very short duration represents law, and that the convention has been tested beyond breaking point, then the case for the advice to the Queen being unlawful is made. Johnson doesn’t have to be proven to be “evil”.

The fact that Major in 1997, like Attlee before him in 1948, also had “political” prorogations doesn’t necessarily make the Johnson one of 2019 constitutionally legal. The constitution does work on precedent – but each case is also different.

All of these judicial appeals may well wind up in front of Supreme Court judges – the Daily Mail’s Enemies of the People – and they should take a robust view of the rights and prerogatives of the Commons in our parliamentary democracy. The checks to executive abuse in the British system of government are extremely weak, and can be exploited by a ruthless leader, as we see now.

As the Speaker John Bercow has stated, it is a constitutional outrage, and is therefore a legal outrage as well. What would happen if, as has been suggested, a Bill to prevent no-deal Brexit or to require an extension to article 50 is passed by the Commons and Lords, but the prime minister refused to send it to the Queen for Royal Assent? There is another massive conventional constitutional breach.

How much of the constitution do we want to trash? If we have conventions we should honour them. If not, and if the courts cannot rule to that effect, then we haven’t got a constitution, even an unwritten one, at all. What we have instead is a bunch of idiot toffs playing games with the Oxford Union rulebook.

And, by the way, I would not trust Johnson to ask the EU for an extension. What we need is a simple law, expressing the democratic imperative – no-deal Breixt cannot be undertaken without a prior parliamentary approval, and other relevant laws are thereby amended to take account of that, and the executive is to be mandated to take all steps to honour that. There should be penalties attached too, in case Johnson decides to ignore it – another breach of precedent.

Apparently, one plan is to force Johnson to disclose, under sworn solemn oath, the real reason he advised the Queen to prorogue parliament. The idea is to expose the base motives of our prime minister, and to make it obvious to the courts, and the wider public, that all that stuff about the NHS and the police was, at best, a subterfuge.

You do not need a 35-day long suspension of parliament to ready yourself for that. It is an unusually long absence for MPs and, as former clerk of the Commons, Lord Lisvane indicates, it is obviously designed to prevent parliament from expressing an opinion or, more forcefully, making a decision on matters which it legitimately has an interest in and where it may wish to do so, manifestly.

In due course, under the various plans being hatched by those opposed to no deal, with House of Commons will express its wish to the Queen, via “humble address”, that it doesn’t wish to be prorogued, whoever has the nominal power to do so. If parliament cannot even determine when and if it meets, then it has no further purpose and may as well, in the name of God, go.

Without wishing to impugne him, Johnson will find it no more difficult to spin a line having sworn on a stack of bibles than he does in parliament, on the Marr show or, indeed, when disclosing aspects of his personal behaviour to wives or lovers. What happens when he has to account for his actions to the Almighty cannot be guessed at, but he may well find it a hot and sulphurous atmosphere.

More immediately, the judges do not have to believe a word he says, sworn or not. They could rule he was wrong, and they should do so to protect the Commons.

Legal and constitutional wranglings are important, but also part of a deeply political struggle. The fundamental facts remain. The Commons is, to borrow the pejorative term, a Remain Commons. That is its right. There is certainly no majority in it for a no deal Brexit.

When an opportunity arises for it to take control of its own affairs – as is its ultimate right – it can pass whatever legislation it wishes. It can require a government to resign. It can do as it wants. Jacob Rees-Mogg, like Andrea Leadsom before him, argued with the Speaker that if the government loses control over the business of the house, its agenda, it is a breach of ancient convention, but he must now confront the fact that he too has broken ancient convention.

And when every convention is being broken, the only way out of the mess is for the Commons to get a grip on the nations’ future. If it cannot do so, then the whole issue has to go back to the people. When all these games and stratagems and courtroom dramas are played out, that is the only place this will be resolved satisfactorily, or as satisfactorily as it can be. Meantime, Boris, we’ll see you in court.