06 June 2019

Dominic Raab has refused to rule out proroguing Parliament to stop it preventing a no deal Brexit. Dr Hannah White argues such a move would be undemocratic, would drag the Queen into politics and would be unlikely to succeed without triggering an election. 

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.

What is prorogation?

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 would be undemocratic 

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.

Proroguing Parliament would draw the Queen into politics

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.  

Proroguing Parliament might well trigger an election

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.

Comments

In your 2015 article you pointed out that the right to seek to prorogue was one of the few remaining powers held by the PM. In a world where the Speaker has recently made numerous questionable decisions which have thwarted any move by Parliament which favours Brexit, any attempt to prorogue here seems only fair. What's good for the goose should be good for the gander.

Are you sure that prorogation is a prerogative power? It is referenced in the Prorogation Act 1867 although on a quick read of section 1 it's not entirely clear to me that prorogation is now based on that Act. But if it then I think that the prerogative power would fall away in accordance with the House of Lords decision in De Keyser's Royal Hotel. That being the case it seems that the power could only be exercised "by and with the advice of the Privy Council". Would that be narrower than proroguing as a prerogative power?

I'd love a view from someone who knows about this. Could a Prime Minister do this by themselves?

I guess then any new PM would only Prorogue Parliament at the last possible moment, prevaricating everything up to, and until a point in time when any Prorogation imposed would ensure that the 31st October deadline would command. Opponents to it would therefore not be able to do anything to prevent the UK from "falling out" of the EU....accidentally but on purpose! Timing would need to be impeccable to ensure sucess as is always in most endeavours! The alternative open to a new PM would be to admit Government guilt that the previouse PM had unlawfully Extended Art 50 as per the current Court Case under way with Robin Tilbrook and also Sir Bill Cash not reported on MSM unlike th Gina Miller case was!

To prorogue Parliament would not be undemocratic if it is necessary to implement the democratic referendum decision to Leave the EU, which the present unrepresentative parliament is trying to over-rule.
No-one wants to "pursue" a no-deal Exit. We would rather negotiate a good deal, but the EU has ruled out any more negotiations. The deal on the table is a bad deal because it subjugates the UK to the EU in several respects with no unilateral means of escape. We even forego our option to complete our exit after two years, as enshrined in Article 50. Unless the EU is willing to re-open negotiations, this time in good faith, leaving with no deal is the only option available to the new PM. The Queen would love it, because it would restore some lost sovereignty to her realm.

If the UK parliament is prorogued and therefore has no legislative authority, might that be an opportunity for the Scottish Government, in the absence of any UK 'higher' authority, to hold a second independence referendum? Given how low the current administration is prepared to stoop in order to control parliamentary procedure it is my opinion that Scotland would have a democratic, moral and just right to take similar advantage of the block on a Section 30 order that has been declared by most of the Tory leadership candidates.

Prorogation is not undemocratic as, in this case, it reflects the will of the 17.4 million people who voted to leave the EU. Given most MPs voted against their constituents, please explain how this course of action by them is DEMOCRATIC.

Oh dear. The Act of Parliament which introduced the 2016 referendum was explicit that the referendum was advisory. You cannot prologue parliament because it has not followed the result of the referendum. You may make a moral argument against MPs, on the basis that in debate the House of Commons agreed to follow the result, but you cannot make a legal one. Referenda have no legal place in our constitution. MPs are not delegates of their constituents. Their primary task is to safeguard the well-being of the nation.

To prologue Parliament would require a dishonest sleight of hand and would fatally undermine our famed democracy.

Yes but any government would be foolish to ignore it's advice; besides the then PM said he would implement the outcome whatever it would be.

Referendums. From 5th declension Latin.

If referendums are only advisory why do remainers want another one? If MPs can ignore the electorate why can’t the government ignore the MPs?