Professor Michael Gordon is an expert in UK constitutional law at the University’s Law School:
The Prime Minister Boris Johnson has advised the Queen to prorogue Parliament from the second week of September until 14 October. This request has been approved by the monarch at a meeting of the Privy Council, and given effect through an Order in Council. This means Parliament will be suspended for between 4 and 5 weeks at a crucial political moment, and this has happened without a vote in either the House of Commons or the House of Lords.
This is an intensely controversial decision, which shows a clear disregard for values which are crucial to the operation of the UK’s constitutional system. The process of leaving the EU had already placed the UK’s political institutions in constitutional overload, but that had not yet escalated to a constitutional crisis. Now we are edging ever closer to a crisis being manufactured by a Prime Minister determined to engineer a ‘no deal’ Brexit on 31 October, if a new withdrawal agreement cannot by then be negotiated with the EU.
The UK has a ‘political constitution’ rather than a single written constitutional text. This means the constitutionality of government action can be evaluated in three different ways: compatibility with the law, political convention, and constitutional principle.
Highly political act
First, from a legal perspective, the order to prorogue Parliament is difficult, if not indeed impossible, to challenge. The legal power held by the Queen to prorogue Parliament is a very broad one, and the courts will be reluctant to become involved in adjudicating on a highly political act of this kind. It is difficult to see any legal standards which this decision has violated, especially since the government is presenting the decision to prorogue Parliament as a normal preparatory step for the announcement of a new legislative agenda in a Queen’s speech on 14 October.
At least one legal challenge already underway in the Scottish Courts is now being accelerated – the group of over 70 politicians bringing this claim are arguing that the decision of the Prime Minister to advise the Queen to prorogue Parliament is legally flawed. Again, however, this would require the courts to scrutinise a political decision made in an area of very broad Prime Ministerial discretion. Unlike in the high profile Miller case in 2017, the consequences of a judicial intervention are very hard to anticipate here. And the government has given a veneer of respectability to its decision, in so far as it has not shut down Parliament absolutely until after 31 October, but has preserved some (still very limited) time for debate in the run up to exit day.
Second, from the perspective of political convention, there was no possibility that the Queen would act as a ‘constitutional safeguard’, rejecting the Prime Minister’s request to suspend Parliament. As a hereditary monarch, the Queen’s role in the UK constitution is to act as a formal head of state, remaining above party politics, rather than exercising significant discretion herself. By political convention, the Queen acts on the advice of her Prime Minister, and in this case she has done so in textbook fashion, approving the Order in Council to prorogue Parliament without delay. It would be unrealistic to expect that, in a democratic system, an unelected monarch would take on the role of ‘guardian of democracy’, and independently resist the suspension of Parliament contrary to the recommendation of her government.
So if the prorogation of Parliament in September was lawful, and executed by the Queen in accordance with well established political conventions governing her conduct, what are the constitutional grounds for objection?
We can look to a third perspective, based on constitutional principles. The UK’s political constitution is constructed around the relationship between Parliament the government. The House of Commons within Parliament is the elected element of the UK’s central institutions, and it is from there that the government draws its authority, by obtaining and sustaining the confidence of Parliament. To retain this confidence, and to remain in office, the government is accountable to Parliament, and subject to the ongoing scrutiny of MPs and peers in our legislature. These constitutional principles are central to the operation of the UK’s democratic system.
When the government does not have the support of the House of Commons for a key policy it intends to deliver, the response should be to change that policy, persuade Parliament to back it, or for the government to fall. In relation to the Prime Minister’s intentions to exit the EU without a deal on 31 October, if one cannot be agreed by then, the government does not have the support of a majority in the House of Commons. Yet rather than engaging with Parliament, the Prime Minister has had it prorogued.
The government argues that this is ‘normal’, but this is not the case: Parliament will be suspended for far longer than is the norm in modern times, usually up to a week prior to the start of a new session and a Queen’s Speech. Yet the context here is even more important than the length of the suspension: the use of prorogation to shut down parliamentary scrutiny for multiple weeks when one of the most disputed political issues of the current era falls to be decided by the government is problematic enough. But it is even more objectionable when this also considerably reduces the time available for parliamentarians trying to generate a majority in opposition to the government’s ‘no deal’ Brexit plans to take alternative action, whether through legislating to require an extension to the EU negotiations, or to challenge and replace the government through a vote of no confidence.
In these circumstances, the prorogation of Parliament shows a clear disregard for substantive constitutional values. It limits the possibilities for a majority in Parliament to challenge the government’s agenda. It sidelines Parliament at a crucial moment in a short period of time when political decisions of immense important will be made. And it challenges the core democratic constitutional idea that the government is accountable to Parliament, precisely at the moment when the continuing confidence of the House of Commons in the government has become extremely precarious.
The government may have developed a pretext to justify the prorogation of Parliament. It has most likely followed a course of action which is lawful. But in doing so, it shows disdain for the basic idea of democracy which is both reflected in our legal and conventional arrangements, and which also transcends the specific constitutional rules of the UK’s political system.
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