Brexiters like to lecture Remainers about the importance of democracy, but now some of them are calling for Parliament to be suspended to get round the huge parliamentary majority against a no-deal Brexit. Such a move, called prorogation, would be an outrage. It can and must be stopped.
Last night Dominic Raab, the hardline Brexiter running for the Tory leadership, refused to rule out what he called the “nuclear option” of suspending Parliament when he spoke at the One Nation Conservative hustings. He was met with disbelief and outrage: Amber Rudd declared “we are not Stuart kings”, referring to Charles I’s attempts to dismiss Parliament. That led to civil war. Is that a price Raab thinks worth paying to get Brexit?
Proroguing Parliament is the procedure for ending a session of Parliament so that it does not sit until the Queen’s Speech opens the new session.
On prorogation, all legislation falls, unless Parliament agrees to carry it over, new laws cannot be introduced and the government cannot get authorisation for public spending (which is granted via Supply & Appropriation Bills). That means the date of Brexit couldn’t be changed and no new measures put in place to mitigate the effects of no deal.
The law says that prorogation is a decision for the sovereign on the advice and the consent of the Privy Council. Some lawyers think that the “Privy Council” in this context means the Cabinet; others argue that the entire Privy Council would have to agree. That would mean dragging the Queen into a constitutional crisis and no party has a majority amongst the 650 or so members of the Privy Council.
In practice, prorogation takes place with the agreement of the opposition. Indeed, these days the sovereign does not go to Parliament to read the proclamation but sends a “royal commission” made up of the leaders of the parties in the House of Lords instead.
It is true that there was a short prorogation in 1948 to stop the House of Lords blocking the Parliament Act but the government had a majority for it in the Commons – unlike today.
Parliament is not powerless to stop prorogation. Although Brexiters believe that they can prorogue Parliament during the summer recess, MPs can act to prevent that. Standing Order 25 provides for a vote before the Commons can adjourn before a recess; MPs could reject the adjournment without an undertaking not to trigger prorogation.
Many of the ways in which MPs can stop a no-deal Brexit could be used to prevent prorogation without their consent. It would, for example, undoubtedly be an “urgent” matter under Commons Standing Order 24, which would mean a debate and, as the Speaker has hinted, potentially a vote.
Asking the Queen for prorogation after the Commons had opposed it would be morally offensive and constitutionally improper. It would provoke a political firestorm, be challenged in the courts and the prime minister would face a vote of confidence, potentially triggering a general election.
MPs could also bring forward a Bill to amend the Prorogation Act 1857 in order to prevent it being used as a device to block debates on Brexit.
In a powerful attack yesterday, Rory Stewart described closing Parliament to force through Brexit as “illegal… unconstitutional and it would be undemocratic”. He is right to be outraged at what is an attempted coup to achieve Brexit by the back door. It can and must be stopped.