Conservative leadership candidate Dominic Raab has said he does not rule out proroguing Parliament until the 31 October Article 50 deadline has passed. His remarks were made in response to debate provoked by a comment from the Institute for Government about whether Parliament could stop a new prime minister intent on taking the UK out of the EU without a deal.
In between elections, Parliament normally operates on a yearly cycle with annual ‘sessions’ beginning with the ‘opening’ of Parliament and ending in its ‘prorogation’. Prorogation brings a session to an end and means the loss of any legislation that hasn’t received Royal Assent (or been ‘carried over’ to the next session). Normally the Queen returns a few days later to open Parliament again so the next session can begin and a new programme of legislation can be introduced.
The power to prorogue Parliament is a ‘prerogative’ power exercised by the Executive, but – under our constitutional monarchy – formally given effect by the Queen, on the advice of the Privy Council – the formal body of politicians who are advisers to the Sovereign.
Prorogation is a good example of a part of the UK’s unwritten constitution that previous governments have chosen not to manipulate on the grounds this would undermine trust and could be used by their opponents against them in the future.
Proroguing Parliament may seem like the easiest way for a prime minister to prevent Parliament from attempting to ‘interfere’ with their plan. But it would be undemocratic to prevent the normal operation of our key representative democratic institution simply because it might take an unwelcome decision.
Some Brexiteers argue prorogation would be justified because they suspect the Commons of wanting to thwart the outcome of the referendum. They see a conflict between representative and direct democracy and argue the latter should be supreme in this scenario. It is certainly contradictory that the House of Commons has repeatedly voted to give effect to the referendum but against a deal that would deliver this and against the possibility of the UK leaving without a deal.
But it remains the case that suspending Parliament deliberately to prevent the elected House from deciding something against the Prime Minister’s wishes would be a deeply troubling precedent to set.
The implication of Raab’s refusal to rule out this strategy is that he thinks it would potentially be legitimate to suspend Parliament, not simply to let the Article 50 clock run down but to prevent MPs from making a decision he knows they would want to take. This would be extremely controversial, particularly in these circumstances because the Government does not have a majority. Asking the Queen to give effect to this strategy would draw her into a massive political debate – something which Number 10 and the Palace are normally at great pains to avoid.
If a prime minister sought a prorogation in such controversial circumstances, then it seems highly likely that the Palace would look for ways to limit the Queen being drawn in to the process. This might include hesitating long enough to allow Parliament the opportunity to send a Humble Address to Her Majesty (a direct message rejecting prorogation and/or the authority of the Prime Minister), or agreeing a motion of no confidence. Such motions are normally discussed in government time but, based on his recent record, it is probable the Speaker would find an opportunity for the House to take such a decision, even if the Government elected not to provide time.
If a vote of no confidence was passed, then the Fixed-term Parliaments Act would kick in, providing a two-week period in which an alternative government could attempt to command a majority before a general election was triggered.
The effect of attempting to prorogue Parliament to pursue a no deal policy to which it has thus far been firmly opposed would likely be to prompt an election. That may even be the intention.