This prorogation is improper: the government should reverse it

meg_russell_2000x2500.jpgalan.jfif (1)professor_hazell_2000x2500_1.jpgBoris Johnson’s prorogation announcement has generated widespread criticism, and will be hotly debated when MPs return today from their summer break. Meg Russell, Alan Renwick and Robert Hazell argue that the decision to suspend parliament for five weeks was an improper use of executive power, sets dangerous precedents, and undermines fundamental principles of our constitution. It should therefore not proceed. MPs may seek to block it, and so may the courts, but the preferable route would be for the government to recognise its mistake and reverse it.

MPs return to Westminster today after the five-week summer recess in deeply unusual and worrying circumstances. Last week Prime Minister Boris Johnson, who has faced just one day of parliamentary scrutiny since taking office on 24 July, triggered a prorogation of parliament, set to last another five weeks. Particularly given the Brexit deadline of 31 October, this has caused widespread consternation: among opposition parties, senior Conservatives (such as former Prime Minister Sir John Major, and Lord Young of Cookham who served for 24 of the last 40 years on the frontbench under a succession of Conservative leaders), plus constitutional experts, and the wider public. MPs must now decide how to respond, and meanwhile the action is being challenged in the courts. In this piece we argue that the prorogation was improper, that it sets dangerous precedents, that it is contrary to our constitutional traditions, and that there is still time for the government to defuse the crisis by reversing it.

The rights and wrongs of prorogation

At one level, parliamentary prorogation is entirely uncontroversial. By routine, a short prorogation usually occurs each year between the end of one parliamentary session and the start of the next – ahead of a new Queen’s speech. In addition, a short prorogation often occurs before parliament is dissolved for a general election, in order to regulate the timing and ensure that election day takes place on a Thursday. The recent practice and procedure of prorogation is set out clearly in an excellent briefing from the House of Commons Library.

Discussion of potentially more sinister uses of prorogation began during the Conservative leadership contest, when Dominic Raab (now Foreign Secretary) refused to rule out proroguing parliament to force through a ‘no deal’ Brexit in the face of opposition by MPs. This was roundly condemned by others in the race at the time: being described by Sajid Javid (now Chancellor of the Exchequer) as ‘trashing democracy’, and Michael Gove (now effective Deputy Prime Minister) as ‘a terrible thing’. Andrea Leadsom (now Secretary of State for Business, Energy and Industrial Strategy) commented that ‘I don’t think prorogation is the right thing to do and I don’t think that a Prime Minister would choose to do that’.

Following Johnson’s prorogation announcement, ministers have instead suggested that this is absolutely standard procedure. On Thursday’s Today programme, the Leader of the House of Commons, Jacob Rees-Mogg, claimed that it was more or less what happened every year, and that it was ‘because of the 3 ½ weeks of conference recess [that] it is five weeks in total’. Hence Rees-Mogg accused critics of the move of expressing ‘confected anger’.

But such suggestions of normality are disingenuous, seeking to exploit public confusion between the different means by which it can be decided that the Commons will not sit. It is important to distinguish between the following three things:

Prorogation brings all parliamentary business to a complete stop. Unless rescued by a government motion, bills that are before parliament fall and must start their passage again. Importantly, the decision to prorogue lies wholly in the hands of the government – through issuing advice to the Queen, which she is duty bound to accept. Usually a prorogation lasts for just a few days. Research by the House of Lords Library shows that a five-week prorogation will be the longest since 1930.  

Parliamentary recess is very different. Recess occurs periodically throughout the year, to accommodate holidays and, usually, a break for the party conferences. However, the decision to adjourn for recess lies with MPs. The motion for the 2019 conference recess had not yet been laid, and the looming Brexit deadline meant that there was increasing pressure from MPs to cancel or cut this recess short. Crucially, it is also possible for some parliamentary business – such as meetings of select committees – to continue during recess, and the progress of bills is not halted.

Dissolution of parliament in contrast occurs before a general election. Under the Fixed-term Parliaments Act, the decision to dissolve parliament again lies with MPs themselves – and is taken by a parliamentary vote. Dissolution does not simply suspend parliament: as the name suggests, it dissolves parliament in preparation for the creation of a new one through a general election.

Hence either recess or dissolution, sometimes combined with a short prorogation, frequently result in parliamentary breaks which last a number of weeks. But in both of these cases MPs take the decision to break themselves. Had ministers genuinely wanted to hold a ‘routine’ prorogation to facilitate a Queen’s speech, as they claim, they could easily have proposed one lasting a few days, and left the decision to MPs regarding whether to take the conference recess. Instead, they have proposed the longest prorogation for 90 years, using executive power to shut down parliament in the midst of a crisis – seemingly to avoid the risk that MPs would veto the conference recess, and perhaps use the time available defeat the government on other things. As suggested in the previous comments of Conservative leadership contenders, that represents an improper use of executive power.

The effects of prorogation

In recent weeks two courses of action have been widely canvassed in the media as being under consideration by opposition MPs and Conservative rebels for their return after the summer recess. One is to sponsor legislation to prevent a forced ‘no deal’ Brexit on 31 October – by requiring the Prime Minister to seek an extension to the Article 50 period (in a repeat of the so-called ‘Cooper-Letwin bill’ procedure imposed in April). The second is the prospect of a vote of no confidence in the government, succeeded by the installation of an alternative ‘unity’ government which would itself pursue such an extension.

The first of these routes has been significantly challenged by the prorogation. MPs will still press to pass such a bill, but they now have very little time. In addition, given Boris Johnson’s claim that he will propose workable ‘alternative arrangements’ to the Irish backstop by mid-September, MPs might have preferred to wait out this period before acting – but are now forced to do so in a way which the government can more easily accuse them of being precipitous. The prorogation therefore deliberately undermines MPs’ ability to legislate as they had planned. 

Prorogation even more gravely undermines MPs’ ability to remove and replace the government – a fundamental right in a parliamentary system. Under the Fixed-term Parliaments Act, a successful vote of no confidence is followed by a 14-day period during which an alternative government can be sought. But the prorogation cuts across that, meaning that parliament would not be sitting for most of the 14 days. Hence were a vote of no confidence tabled today and debated tomorrow, as little as one sitting day could remain to agree an alternative administration. Were no such alternative put in place, Boris Johnson would remain Prime Minister and a general election would be automatically triggered at the end of the 14-day period – with him free to set the date. By triggering a vote of no confidence MPs could thus inadvertently facilitate an election scheduled by Johnson for November, after Britain had left the EU on a ‘no deal’ basis (though for the importance of the ‘caretaker convention’ in these circumstances, see the earlier post on this blog by Russell and Hazell).

These problems, of the government using prorogation to thwart unwelcome parliamentary action, will no doubt prove central to the arguments by the litigants in the legal challenges brought by Gina Miller in England, Joanna Cherry QC MP in Scotland, and Raymond McCord in Northern Ireland. Professor Paul Craig has outlined some of the legal arguments to be deployed. 

Because MPs might have used their time to take hostile action against the government, perceptions of the rights and wrongs of prorogation have become highly politicised along Brexit lines. But this risks overlooking the fundamentally important, and more routine, role of parliamentary scrutiny, achieved for example through government statements, Prime Minister’s questions, and other written and oral parliamentary questions. With the looming 31 October deadline, and with parliament having just returned from a five-week break, there are many matters on which MPs should properly be holding government to account. These include not only the nature of the negotiations with the EU27, but crucially the progress of the government’s ‘no deal’ planning. Following the leaking of the ‘yellowhammer’ analysis, and concerns from industry and professional bodies about matters such as potential food and medicine shortages, it is only right that MPs should be able to hold ministers to account on the floor of the House of Commons and in select committees. If MPs chose, through voting for a conference recess, to forfeit this scrutiny, that would be one thing. For ministers to use executive powers to prevent it is instead an abuse of such powers.

The precedents set by prorogation

The prorogation would also set a dangerous precedent. If ministers successfully use this power to dodge unwelcome scrutiny on Brexit, similar action could be taken by ministers – in this or subsequent administrations – to avoid scrutiny on other awkward matters. Prorogation could be used to kill off an unwelcome bill. It could even potentially be sought in order to block debate on a no-confidence motion that had been tabled. Hence by accepting the precedent of a politically-motivated prorogation such as this one, grave risks would be opened up of action which could undermine the very foundation of our parliamentary system – that government is accountable to parliament, and remains in office only subject to the confidence of the House of Commons.

The precedents set if the prorogation goes ahead would hence be dangerous for UK democracy. If the principle is established that the UK executive can shut down parliament just because scrutiny is inconvenient, this would also send terrible messages to aspiring autocrats around the world.

Why prorogation challenges the principles of our constitution 

Those who claim that prorogation is perfectly proper argue that there is no written rule stating that the government should not pursue such a course, and that the flexible nature of our constitution means that any action taken by the government within the law is by its nature constitutional. But this is to fundamentally misunderstand, or deliberately misinterpret, the basis of the UK constitution. Britain famously does not have a ‘legal’ constitution, where every aspect exists in written rules, and can be adjudicated by judges. Instead it has a ‘political’ constitution, where important aspects are dependent on the operation of convention. At the core of the British constitution is the principle of parliamentary sovereignty, and the accountability of the executive to parliament. Action by government to shut parliament down for a lengthy period violates that core constitutional principle.

As set out by many key commentators (e.g. here and here), the fact that key aspects of the constitution rest on convention means that upholding the constitution depends on senior holders of political office respecting the established (albeit unwritten) rules. If those in office instead choose to ignore convention and follow only the letter of the law, they risk destroying the system. On the World this Weekend on 1 September, former Cabinet Secretary Lord (Gus) O’Donnell suggested that such action was ‘very dangerous’ and a ‘slippery slope’.

What is to be done?

Hence if dangerous precedents are to be avoided, and risks to our constitutional fabric averted, the prorogation decision must be overturned. There are three ways in which this could happen. One is for the judges (almost certainly in the Supreme Court) to rule it illegal. This would be a very un-British approach, given the nature of our political constitution – bringing the judges into interpreting convention, which they would normally be reluctant to do. The second option is for parliament to avert the prorogation by seeking to block it through other routes: either a ‘humble address’, or a bill. Either of these seems quite likely to gain a majority, given the levels of criticism among parliamentarians, including some otherwise loyal Conservatives.

Either of these options might succeed, but would represent an unwelcome breakdown in relations between our key constitutional actors. For the courts or parliament to be forced to put right the government’s mistake would be regrettable. Just as the power to prorogue lies in the hands of the Prime Minister, the power to reverse a prorogation also lies in his hands. He should recognise the widespread parliamentary and public opposition to this move, and the widespread fears and concerns that it has caused, and call off this forced suspension of parliament. 

A summary of these arguments, with support from 20 other constitutional experts, appeared in a letter to The Times today.

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About the authors

Professor Meg Russell is Director of the Constitution Unit, and also a Senior Fellow at the UK in a Changing Europe studying ‘Brexit, Parliament and the Constitution’. She is also the co-author of of Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law.

Dr Alan Renwick is Deputy Director of the Constitution Unit and the co-author of Doing Democracy Better: How Can Information and Discourse in Election and Referendum Campaigns in the UK Be Improved?.

Professor Robert Hazell is Professor of Government and the Constitution at UCL and a former Director of the Constitution Unit. He is currently working on a comparative study of European monarchies, due to be published next year.