The DCU Brexit Institute blog is hosting a debate betweenseveral authors on the Prorogation of the UK Parliament. This is the second blog post. See also: Sam Fowles, Prorogation of the UK Parliament: Three Key Issues ; Ian Cooper, Weaponized Prorogation and the Harm to Democracy: Lessons from Canada ; Alan S. Reid,Prorogation and the UK Parliament: The Horror of Halloween Remains? ; Joelle Grogan, Prorogation and the UK Parliament: The next few days will reveal where the heart of power lies in the British constitution ;
Prorogation of the UK Parliament: the Impact of Brexit on the Commons
Chris White (Newington Communications)
The Prime Minister’s decision to prorogue Parliament ahead of an upcoming Queen’s Speech on 14th October has caused significant outcry from his critics, yet it is constitutionally correct. Any new Government should have the right to set out their new domestic agenda, and the Queen’s decision to grant the Order in Council is right, however much opponents disagree.
The decision has proved to be politically controversial for two principle reasons. Firstly, for the length of time that the House will be prorogued. MPs will not be sitting between at least Wednesday 11th, possibly even as early as Monday 9th September to 14th October. That’s up to 35 days that MPs won’t be sitting. For context, since 1979 no prorogation has been longer than 21 days, which happened in 2014-15.
Secondly, the timing of this prorogation comes at a crunch point before 31st October, when the UK will leave the EU without a deal, which is the legal default. Whilst it is clearly not for the Government to enable attempts by opponents to challenge their default policy, nonetheless the prorogation reduces the number of sitting days, and stymies plans by MPs to obtain more time.
There were 22 days when the Commons was sitting between 3rd September and 31st October – now there will be a maximum of 15. The prorogation also demolishes the rebel MP’s plans to defeat a motion to approve the conference recess, so they will now be unable to gain an extra three weeks to debate and pass legislation to stop no deal.
The principle impact of this is to restrict the time available for MPs to debate or attempt to challenge the Government’s policy to as few as four days in the September sittings, and two weeks in late October.
Opponents of the Prime Minister’s Brexit plan have been exploring two avenues of challenge. The first is through a statutory vote of no confidence, as stipulated in the 2011 Fixed-Term Parliaments Act. The Leader of the Opposition would have to table a motion, and the following day MPs would vote on whether “This House has confidence in Her Majesty’s Government.” If successful, a 14 calendar day period would then begin, where an alternative candidate must demonstrate support of at least 320 MPs, be appointed Prime Minister and then win a statutory vote of confidence. If no candidate, or the original PM, cannot regain confidence, then an election would follow.
Opposition MPs are now reluctant to follow this for two reasons – firstly that neither Jeremy Corbyn, nor any other candidate seems likely to win a vote of confidence. Secondly, that an election after the 14 day period has elapsed would probably be held after 31st October.
The second route being explored is to pass legislation, in a similar manner to the Cooper-Letwin Bill in March, which orders the Government to seek an extension from the EU. The previously successful legislation took five days to pass the Commons and the Lords, so with time looking even shorter in early September, opponents of a no-deal Brexit cannot afford any delay. They must also look to the Speaker of the Commons to bend Standing Orders to allow a substantive motion to capture time off the Government, which currently controls all business in the Commons.
Finally, even if MPs were successful in passing legislation, it is by no means certain that the Government would allow Royal Assent – this is actively being considered. Earlier this year I wrote in the Times about whether the Government could issue Ministerial direction to the Queen to refuse Royal Assent. Some commentators, have argued that this can be done but I still strongly believe, along with numerous constitutional academics, that the Queen has a constitutional duty to give Royal Assent to a Bill passed by Parliament. Parliamentary sovereignty is not subject to a Government veto.
The next few weeks will not just shape our future relationship with the EU, but will also reshape our constitution.
The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog
Chris White is Director of the Public Affairs Division of Newington Communications. He has acted as a Special Adviser to Conservative Cabinet Ministers William Hague, Andrew Lansley and Patrick McLoughlin.