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Analysis

Brexiter prorogation coup can and must be stopped

by Nick Kent | 06.06.2019

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.

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Edited by Luke Lythgoe

8 Responses to “Brexiter prorogation coup can and must be stopped”

  • With regards to prorogation being a coup then it depends which side of the fence you sit. From my side, parliament revoking article 50 would be the real coup as they would be overturning the 2016 referendum result.

  • Can you imagine a new PM getting no further than May in solving the Brexit problem? Of course the PM candidates are getting frantic. They are terrified of joining May and the rest of the motley crew in the bleachers as they fail to achieve their “promises” of all the benefits with none of the costs (Mr Davis!). So we shall see more and more exotic ideas put forward as a way out of this unplanned and profitless mess.
    Eventually, they will see that the whole thing must be put back to the people, who can then be blamed for any consequences. Right now if, as looks likely, it all goes pear-shaped, it is very obvious who will be blamed, Boris, Raab and the rest. I am sure the protection offered by a People’s Vote will become more attractive as this all sinks in.

  • If only we actually had a constitution, like every other modern democratic country, there wouldn’t be so many boreholes for slimy Tory worms to slither down. When this nonsense is over, the first order of business ought to be to draft and ratify a constitution and federalise our relationships with our constituent countries. As it stands now we are a bottomless basket(case?) of constitutional horrors. A hell of a lot of work must be done by those who were always too far up their own backsides to think it was even necessary. Doing things the way we’ve always done them will be the death of the country. Tradition is one thing; blind adherence is another…

  • Peter, you must think that the 2016 referendum was free and fair. (Here you differ from our own Department of Culture Media and Sport.) Perhaps you’ve somehow been able to find out what Leave voters voted for in 2016. Both the Con and the Lab 2017 manifestos spoke to what sort of deal they planned to achieve. It took May’s saying ‘No deal is better than a bad deal’ (which many people misunderstood as meaning the status quo was better than a bad deal) before anyone thought of a NoDeal exit. Certainly those who campaigned for Leave never spoke of one. Nor of course did they say they say they were planning to prorogue Parliament if a few of them came to the view that to deny parliamentary sovereignty was the only route to Leaving.
    Did anyone in 2016 know what a crisis the country would be in 3 years on? To think that a 2019 electorate would now not vote Leave by a majority, we have only polling to rely on. And nearly everyone on the Remainers’ side of the argument would prefer a referendum in which the pollsters’ views were tested than to have Parliament revoke A50. But thanks in large part to the obstacles that the European Research Group put in the Prime Minister’s way, time is now very short.

  • @Peter

    I’m sure it would *feel* the same, but at the end of the day Parliament is sovereign. There was no bill passed to make the advisory referendum binding (there were promises made on it, yes, but by people who didn’t have the authority to make those promises)

    Whether Brexit happens or not, and which form it takes if it does, is purely down to Parliament. There’s no getting around that by either side.

  • An absolute outrage for Raab to talk about preventing Parliament from carrying out its function for which it is elected. (and he can’t hide behind using difficult technical words for it).He is getting onto very dangerous ground. This is what third world dictatorships do. Our parliament is one of the world’s longest established and respected. It would compromise the Queen’s position.
    I already had a poor opinion of Raab as Brexit minister, but its just got alot worse.
    The man is unfit to be in parliament, never mind PM.

  • Immediately people – including Remainers – started talking about respecting the referendum result, the pathway was laid down, of which Raab’s position is the logical consequence. The referendum was unwanted, unfair, unlawful and undemocratic. Those who respect it essentially condone crime, so they really cannot object to Raab.

  • Having a second People’s Vote risks solving nothing – if it decides he same way as the first. To have a vote that is meaningless if it goes one way, and powerful the other, is cynical in the extreme. We avoid this if there are more than two options on the ballot. One of them must be no-deal.
    And, of course, there must be a fair and balanced campaign beforehand, to reduce the effect of all the scaremongering of the past few years. Balanced equally between all three or more options on the ballot, surely…