What does prorogation mean, and how will this impact Brexit?

In the latest of a series of escalating actions, Boris Johnson has announced that Parliament will be suspended for five weeks at some point week commencing 9 September, and will not reconvene until the 14 October. We will explain how this suspension is happening, the impact it could have on Brexit, why people are calling it an affront to democracy, and how the Queen is involved.

What is proroguing?

Simply put, prorogation is the formal mechanism for ending a session of Parliament. These are a common event in British politics, usually happening every autumn.

The suspension of Parliament (prorogation) is then proceeded by the State Opening of Parliament. This is an elaborate ceremony demonstrating the independence of Parliament from the monarch, and includes the slamming of the door on Black Rod, taking an MP ‘hostage’ and, most importantly, the Queen’s speech in the House of Lords, which details the legislative agenda for the government during the new session of Parliament.

It could be argued (and the Government is adopting this line) that this is simply business as usual, and is in fact overdue since there hasn’t been a Queen’s speech since 2017, making the current Parliament session the longest in nearly 400 years.

If it’s normal, why is this such a big deal?

Although a normal element in the cycle of Parliament, there are a number of factors that make the decision to prorogate now controversial.

Firstly, Parliament is being suspended for five weeks. Even if the Brexit deadline wasn’t just 17 days after the start of the new Parliament session, it would still be the longest period of prorogation since 1945. It is very rare in modern times that Parliament be suspended for more than a week.

However, it is important to note that the five week period does include three weeks where Parliament would normally have been suspended anyway, to allow for Conservative, Labour and Liberal Democrat party conferences. On the other hand, there were suggestions that MPs were considering voting to cancel that recess so there was proper time to debate Brexit legislation.

Towards the end of Theresa May’s tenure as Prime Minister, and more so during the Conservative leadership elections, there were discussions around closing Parliament to prevent it from having input on any Brexit deal. This was particularly the case after the government faced a number of defeats on the Withdrawal Agreement. At the time it was seen as the musings of the far-right fringes of the Conservative Party, and not a serious plan because of the democratic implications it would have.

It’s all the more controversial because Boris Johnson, as well as many in his cabinet (Michael Gove, Nicky Morgan, Andrea Leadson, Matt Hancock, Sajid Javid and others) all said that they would not support the closing of Parliament to push through Brexit. They are now notably silent.

The prevailing opinion is that, contrary to the government’s position that this is normal procedure, the decision to suspend Parliament now has been made to limit the time that MPs will have to debate any legislation and, perhaps intentionally, stop Parliament from passing legislation that binds the government’s hands into avoiding a no-deal. This is seen as a complete affront to democracy, where elected representatives are being cut out of the decision making process, and concentrating power with the few who work within the cabinet.

How is the Queen involved?

TL;DR – The Queen is the head of state, and everything happens with her consent.

This is however a very simplified understanding of British politics, and the reality is a lot more nuanced.

The United Kingdom is a constitutional monarchy, meaning that the monarch (ie. the Queen) is the head of state, and operates within a constitutional framework. Unlike countries such as the United States, the UK does not have a codified constitution, by which we mean a single document with the whole framework for governance written down. In some ways this is good, because it offers a nimbleness and flexibility that other countries don’t have (gun control, anyone?) but on the other hand, it leaves a lot to interpretation, and the respect of traditions and norms.

The Queen is the head of state, and ‘officially’ has royal prerogative, meaning that Parliament and the Government (also referred to as the executive) serve at her request, and every bill passed requires royal assent.  However, the reality is that the powers of a monarch are now limited. Between the Magna Carta and the Bill of Rights (1689), the monarch ultimately only exercises their power to open and close Parliament and to select a prime minister. Even with those tasks, convention says the individual selected for prime minister is the leader of the largest party in a general election, and it is then the prime minister that advises the monarch to dissolve Parliament. A monarch hasn’t signed a bill in person since the 16th century, instead writing a letter to state that they give consent, or appointing a Lord to inform both Houses that consent has been granted.

Even the Queen’s Speech at the State Opening of Parliament is written by the Government.

Could she have declined Boris Johnson’s request?

Officially, as written above, the Queen is the head of state, and Parliament and the executive government serves with her consent and devolved royal prerogative, so she technically has the power to decline the request. However, it would have been a complete departure from tradition – and likely would have invoked a constitutional crisis – had she do so.

Power has shifted from the monarch to the Government, and although the Queen meets weekly with the Prime Minister, and she can offer advice and opinions, they aren’t obligated to consider it.
The last time Royal Assent was withheld was in 1707 by Queen Anne, who blocked a Scottish Militia Bill.

Can prorogation be stopped?

This is currently the big question, with a simple and a complex answer – obviously.

The simple answer is no. Prorogation is not something that MPs vote on (the PM instructs the monarch to do it) so isn’t something that can be stopped within Parliament. According to leaked government correspondence, the attorney general Geoffrey Cox is reportedly of the opinion that shutting parliament is possible, unless action taken in the courts to block the move.

Unsurprisingly, there are currently a number of legal options currently being explored. 75 MPs, led by SNP MP Joanna Cherry and Liberal Democrat leader Jo Swinson, began legal action at the Court of Session in Edinburgh last month to prevent a Parliament shut down, and are now seeking an interim interdict (Scottish version of an injunction) to prevent the government’s plans to shut down Parliament until their original case is heard on 6 September.

Campaigner Gina Miller, who previously won a court case that required the Government to legislate Article 50 through Parliament, has also stated that her lawyers have made an urgent application to the high court for a judicial review of the plans.

More interesting, is the report that the MEPs (Members of European Parliament) are currently organising to trigger an investigation into the government for breaching the rule of law, under Article 7 of the EU’s founding treaty. The rule of law, in context to the UK, was established in the Magna Carta in 1215, and has many separate ideas. The key aspects here are that there are checks and balances against unfettered power, and that nobody – not even governments (or monarchs, at the time) – are above the law.

Are there any other options?

Parliament returns from recess on 3 September, and will (at time of writing) be suspended again at some point during the week commencing 9 September. This gives MPs who are opposed to a no-deal Brexit, or dislike that the Government is potentially trying to circumvent Parliament, just one week to come up with a plan.

Humble address

One plan currently circulating is a “humble address”. This is a motion tabled by the Opposition that is a formal message to the Queen. It can be debated, amended and voted upon the same way any other motion can, and once agreed they are considered to be binding. Should the government opt to ignore a humble address, they would be considered in contempt of Parliament. It was the case that humble addresses were infrequently used, but in the last few years they have been used to effect by forcing the government to publish both their Brexit economic impact assessments, and the legal advice of the attorney general regarding the Irish backstop.

Emergency debate

Speaker of the Commons, John Bercow, has described Boris Johnson’s plans to prorogue parliament as “a constitutional outrage”. Bercow represents the interests of the Commons, and is the individual charged with enforcing (or bending, depending on your opinion) parliamentary procedure. It is widely expected that he will ensure there be time during the first week to allow MPs to pass legislation to limit Johnson’s plans, perhaps through an emergency debate.

Vote of no confidence

A few weeks ago, Corbyn wrote a letter to MPs inviting them to support him in issuing a vote of no confidence and bringing down the government. He proposed that he lead a caretaker (temporary) government that would seek an extension to Article 50 and then dissolve Parliament for a general election, and committed to delivering a final referendum over Brexit if Labour wins. The plan was originally rejected by would-be no-deal opponents, such as Tory MP Dominic Grieve and Liberal Democrat Leader Jo Swinson, but they later agreed to meet and discuss plans. It was decided that a vote of no confidence would be a last resort, if legislative movements failed. The Leader of the Opposition would be the assumed replacement for prime minister, but Corbyn’s brand is such that he might struggle to command a majority for support.

Under the Fixed Term Parliament Act 2011, if a vote of no confidence is successfully voted on, Parliament then has 14 days to find someone who they think is best suited to become the Prime Minister, otherwise a general election is triggered. The incumbent can also force a general election earlier if they can get two-thirds of the House to support it.

A general election is not immediately the desired outcome, as the date is set by the government, who can just schedule it for after the deadline.

Can a no-deal be stopped?

Because the UK has triggered Article 50, there needs to be a deal in place to prevent us from leaving without a deal. It may seem obvious, but a no-deal will happen in the absence of a deal. The only way to prevent it is to either sign a deal, or revoke Article 50.

Without decisive action from MPs (and the time to actually implement them) a no-deal will happen on 31 October.

It should not be forgotten that we have already negotiated a deal with the EU, and it was voted down three times by Parliament due to the contentious Irish Backstop. There is frequent talk of trying to negotiate a better deal with the EU that would remove the backstop, but these that present this as an option are hopeful at best and deceptive at worst. The EU will categorically not renegotiate the Irish Backstop without the UK dropping its red lines over customs alignment, because otherwise it would blow a hole in the single market.

The Irish Backstop exists to prevent a hard border between the Republic of Ireland and Northern Ireland, as agreed in the Good Friday Agreement. Should the UK crash out of the EU without a deal, a hard border would have to be reintroduced and that would significantly damage British political clout and respect on the global stage. It would also very likely shut off any chance of a deal with the US.

Is democracy at stake?

As written above, prorogation in itself is not a democratic problem. It is a normal part of a Parliament’s lifecycle, and simply delineates the end of one parliamentary session and the start of the next.

However, it is my personal opinion, and one shared by many, that the decision to prorogue now is merely a cynical attempt to sidestep Parliament and prevent any action on the part of MPs that could interfere with a no-deal Brexit.

Parliament serves an important function in democracy as providing legislative oversight and scrutiny of the executive, making sure that laws are passed that are (believed to be) in the interest of the nation. Without parliamentary oversight, and with the aforementioned limited powers of the monarch, we would have power centralised with the prime minister, who could do whatever they wanted.

Our flexible constitution means that power can shift between the executive (the Government) and the legislative (Parliament), in part depending on the size of the majority that the prime minister holds.
After the disastrous 2017 election, there is no overall majority in the Commons, and the Conservative Government is propped up by a confidence and supply agreement with the DUP – who have proven to be a fickle ally. Between that, and party divisions over what should happen with Brexit, Johnson definitely does not have the support to allow the country to crash out without a deal, so it certainly appears as though he is attempting to close Parliament as a political convenience to make sure it happens.

That is a total affront to the principles of democracy, and is something that everyone, regardless of political allegiances, should be angry and worried about.