Wednesday, 12 June 2019

Prorogation of Parliament to achieve "no deal" Brexit

Let's take back control
The destructive testing of the UK's uncodified constitution continues as the possibility of a Prorogation of Parliament is suggested to enable a new Prime Minister to push through a 31 October "no deal" Brexit.   The new PM will be the winner of the Conservative Party leadership contest - selected by 313 Conservative MPs and, in the region of, 160,000 party members.  The party does not have a majority in the House of Commons and governs with a confidence and supply arrangement with the Democratic Unionist Party (DUP).

Removing Parliament
is surely a device for use by despots and is absolutely against the Brexit mantra of "Take back control" unless that slogan actually meant taking back executive control as opposed to parliamentary democracy!  Such chicanery would be intensely controversial and would involve HM The Queen in this divisive political question.

"No deal" was rejected (321 votes to 278) by the House of Commons in the vote of 13 March - (previous post).  However, on 12 June, a motion to block a "no deal" Brexit was defeated - 309 votes to 298 - ITV News 12 June.  The motion, had it been successful, would have given MPs control of parliamentary business on 25 June to enable them to set a schedule for the stages of a Bill relating to deparature from the EU.

"No deal" is probably against the view of a majority of the voting population though this appears unlikely to be tested by a further referendum.  A public petition currently has over 6 million signatures and was debated in Parliament on 1 April 2019.

"No deal" will be immensely damaging to British business - see views of the Confederation of British Industry (CBI) - BBC News 31 May

"No deal" also disregards key facts about trading on WTO terms - see UK in a Changing Europe - What would trading on WTO terms mean.  

As Prospect Magazine (11 June) points out - if "a new prime minister were ... to attempt to prorogue parliament, this would by no means be the first time that government action in furtherance of Brexit—which was supposed to make parliament more sovereign—would in fact undermine it. There already exists quite a list—for example: the pre Miller attempt to trigger Article 50 without first obtaining parliament’s consent; the resistance to revealing the government’s own impact statements on Brexit to parliament; attempts to prevent a “meaningful vote” on Brexit to parliament. Indeed, the government has already been found in contempt of parliament for refusing to supply the attorney general’s full advice on Brexit ..."

Legality - Constitutionality:

It is reported that the Attorney-General has given advice to Ministers that prorogation for this purpose would NOT be unlawful - The Times 11 June 2019 (£).

A House of Commons Research Briefing also examines the topic - Prorogation of Parliament 11 June - and notes that prorogation is a prerogative power "exercised by the Crown on the advice of the Privy Council. In practice this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to."

The Briefing concludes that there is no obvious legal mechanism by which Parliament could prevent its exercise otherwise than by passing legislation to constrain it.

The Briefing, which is well worth reading in its entirety, sets out information about prorogation:
  • Prorogation does not require the prior approval of MPs
  • Prorogation is normally achieved by a Commission but it remains possible for the Queen to prorogue parliament in person as did Queen Victoria in 1854 when she addressed both Houses
  • Prorogation is always to a definite date
  • All parliamentary business is suspended
  • Parliament does not meet during prorogation
  • Public Bills lapse unless specifically carried over by a motion of the House to the next session of Parliament - Standing Order 80A
  • Ministers may make certain statutory instruments - e.g. those which are subject to annulment by negative resolution
  • Government needs approval of supply estimates and the annual Supply and Appropriation Bill - this acts as a long-stop against a very long prorogation
  • The power under the Fixed-term Parliaments Act 2011 to bring about an early general election cannot be exercised during prorogation and, of course, votes of no confidence are not possible
HM The Queen could, as a matter of law, refuse a prorogation but, in practice, the monarch acts on the "advice" of Ministers who ought to be able to command the confidence of the House of Commons for what they propose.  As the Research Paper suggests - "It could be argued that it ... should first be tested, whether the Government still commands the confidence of the House, before a prolonged prorogation should be entertained."

Using prorogation in the way suggested would have the effect of giving the Prime Minister a veto over parliamentary business and would be fundamentally at odds with the UK's system of parliamentary democracy as well as representative and responsible government.

The very act of asking the Crown to acquiesce to a lengthy prorogation involves the constitutional monarch in a profoundly political question, which ought properly to be resolved politically and with the involvement of Parliament.  It is also a bizarre constitutional arrangement which requires Ministers to be accountable to parliament but also enables them to bring about the shutdown of the body to which they are accountable!


The current legal default position in EU law is that, on 31 October 2019, the UK leaves the EU without a deal.  This legal default is only departed from if:

• a Withdrawal Agreement is ratified before then;

• Article 50 is further extended by a unanimous decision of the European Council in agreement with the UK Government; or

• the UK unilaterally revokes its notification under Article 50.

On 27 March 2019, Parliament approved the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No.2) Regulations 2019.    These amend the definition of Exit Day in section 20 of the European Union (Withdrawal) Act 2018.  The outcome is that Exit Day for domestic legal purposes is now the same as that fixed in EU Law.
Addendum 13 August 2019:

BBC News Scotland -  Legal bid to stop Westminster Brexit shutdown

1 comment:

  1. There is another area of constitutional concern: prorogation after a successful motion of no-confidence (rather than, as in the 2008 Canadian example, to delay a motion). Although ministers who had lost a vote of no-confidence would no longer be responsible, the monarch might well listen to their advice to prorogue, even if she was not obliged to do so. This is worrying because the Fixed-Term Parliaments Act mandates a dissolution and early election if no government can be formed within 14 days of a vote of no-confidence. As noted by (inter alia) Professors Brian Thompson and Michael Gordon, this means a government could force an election by proroguing parliament during this 14 day period, preventing the opposition from commanding the confidence of the House. Given the stated commitments of all of the Tory leadership candidates to keep Mr Corbyn out of Number 10, it is highly likely that the next PM would use this mechanism to force an election rather than risk him winning a vote of no-confidence. The one solace is that successive monarchs and governors general throughout the Commonwealth have perfected the art of what Lord Head called “masterful inactivity” (and this is documented quite well in Professor Anne Twomey's comprehensive book "The Veiled Sceptre"), but it is frightening to think that the last safeguard of the constitution might very well be Her Majesty’s ability to politely delay responding to such an outrageous request.