Could a new prime minister prorogue parliament to deliver a no-deal Brexit?

Given the current parliamentary opposition to a no-deal Brexit, some have argued that the government should prorogue parliament (ie suspend it) for a short period, so MPs could not prevent a 31^st October exit. Indeed Tory leadership candidate Dominic Raab recently stated that he was ready to prorogue parliament, while fellow candidate Esther McVey argued that prorogation was part of her possible “toolkit.” At first sight this seems undemocratic in the extreme. But could it actually happen? The short answer is: it's complicated.

It is characteristic of Brexit that it has required everyone to sharpen their (usually somewhat vague) knowledge of the British constitution. Formerly arcane and little understood practices such as humble addresses now seem part of our daily fare. Prorogation though is not something we expected the public to have to become accustomed to.

Although under the Fixed-term Parliaments Act 2011, parliaments are required to serve a fixed-term of five years (unless under specified circumstances an early election takes place) parliament does not sit all that time. It is divided into sessions that usually last one year (although currently two on account of Brexit). Prorogation is the formal term for the period between the end of one parliamentary session and the start of the next. In contrast to dissolution, prorogation is a personal prerogative power formally in the hands of the monarch, but exercised on the advice of ministers. Crucially, the consent of MPs is not required.

In the usual course of events, prorogation is unremarkable. But nothing is usual with Brexit, and what those such as Raab have in mind is a use of prorogation to suspend parliament altogether for their own political purposes, even if only for a short time. In these circumstances, prorogation takes on an abusive, undemocratic mantel—one thinks of Charles I, who also prorogued parliament.

But could such prorogation happen constitutionally? Another leadership candidate, Rory Stewart, suggested that Raab’s position was “profoundly offensive to our liberty, constitution and tradition,” while Speaker John Bercow stated that “Parliament will not be evacuated from the centre stage of the decision-making process on this important matter.”

Yet, presently the default position, under Article 50, is that the UK will leave the EU on 31st October. Unless anything further happens, Brexit will take place, regardless of how many MPs oppose leaving with no deal. This is why prorogation is under discussion, as a means of forestalling any attempted control by parliament. Although MPs voted in March to reject a no-deal Brexit under any circumstances (and required the prime minister to seek an extension to Article 50) this does not change the situation. To prevent the default, further action must be taken with regards to the EU—if not by a new prime minister, then by parliament mandating action.

There have been previous uses of prorogation outside the usual end of a parliamentary session. But most are not salutary examples. Tudor and Stuart monarchs frequently used prorogation. Notoriously, Charles I prorogued parliament, and from March 1629-1640 governed without it altogether. This did not go well for Charles. Since then, the authority of the monarch has been reduced, while democracy and parliamentary sovereignty has increased.

Yet there are recent examples of prorogation outside the normal run of the parliamentary timetable. In 1948, prorogation was used by the Labour government to overcome the House of Lords’ obstruction to the Parliament Act 1949. This meant parliament was prorogued and summoned to create a short (third) session of about six weeks, which enabled that Act to be adopted without the consent of the House of Lords. Yet, this is not comparable to the present situation, because it was not contrary to the will of sitting MPs, a decided majority of whom favoured the legislation and prorogation to achieve its adoption.

More recently, parliament was prorogued in 1997 in advance of an embarrassing report into “cash for questions.” Two Conservative MPs had been accused of taking money for submitting questions to parliament, and the report of the Committee on Standards in Public Life was scheduled in response. It has been suggested parliament was prorogued to avoid the embarrassment of the report in advance of a general election, which the government lost by landslide in any case, providing some form of accountability.

The clearest example of prorogation being used for political reasons comes from Canada. In 2008, only a few weeks into the parliamentary session, prime minister Stephen Harper prorogued parliament to avoid a challenge to his minority government. (Harper’s actions have been much criticised in Canada, and there has been a call for banning prorogation there).

None of the above provide strong precedents for what might happen if a British prime minister attempted to prorogue parliament to effectuate a no-deal Brexit. Prorogation, as with the British constitution more generally, is guided by unwritten traditions and constitutional conventions. Convention holds that the monarch should generally follow ministerial advice when exercising personal prerogative powers. This makes sense because, in a democracy, not the monarch, but a government accountable to a representative House of Commons, should exercise power.

Yet for this very reason, the monarch should only exercise this power in a politically uncontroversial and predictable manner. Indeed, Vernon Bogdanor, giving evidence to the House of Lords Constitution Committee, remarked that “a wise constitutional monarch” would not prorogue at the advice of a prime minister who no longer held the confidence of the House of Commons. Where prorogation operates to prevent parliament holding the government to account, then parliamentary democracy and supremacy is undermined. Indeed, it has been suggested that the advice of a prime minister to prorogue under these circumstances could be amenable to judicial review. So, all arguments of principle counsel against the constitutionality of prorogation in the event of a new prime minister wishing to ensure a no-deal Brexit.

If however, in spite of the argument laid out above, a new prime minister were nonetheless to attempt to prorogue parliament, this would by no means be the first time that government action in furtherance of Brexit—which was supposed to make parliament more sovereign—would in fact undermine it. There already exists quite a list—for example: the pre Miller attempt to trigger Article 50 without first obtaining parliament’s consent; the resistance to revealing the government’s own impact statements on Brexit to parliament; attempts to prevent a “meaningful vote” on Brexit to parliament. Indeed, the government has already been found in contempt of parliament for refusing to supply the attorney general’s full advice on Brexit.

With such a history of serial abuses of power, an attempt to prorogue parliament to bring about a no-deal Brexit—although profoundly undemocratic and unconstitutional—might seem more like business as usual. And what a sorry state of affairs that would be.