The DCU Brexit Institute blog is hosting a debate between several authors on the Prorogation of the UK Parliament. This is the fourth blog post. See also: Chris White, Prorogation of the UK Parliament: the Impact of Brexit on the Commons ; Sam Fowles, Prorogation of the UK Parliament: Three Key Issues ; Ian Cooper, Weaponized Prorogation and the Harm to Democracy: Lessons from Canada ; Joelle Grogan, Prorogation and the UK Parliament: The next few days will reveal where the heart of power lies in the British constitution
Prorogation and the UK Parliament: The Horror of Halloween Remains?
Alan S. Reid (Sheffield Hallam University)
For Remainers, the recent antics of Prime Minister Boris Johnson are frustrating, dangerous and economically destabilising. For all his protestations, his primary aim appears to be to take the UK out of the EU on Halloween, ‘come what may’. At present, the UK will leave the EU on Halloween by automatic operation of both UK law (the European Union (Withdrawal) Act 2018) and EU law (Article 50(3) TEU). One way to maximise the chances that the UK definitively leaves the EU with or without a deal on the 31st of October is to circumscribe the time available for the UK Parliament to debate, approve and legislate for a further extension to the Article 50 TEU timeline.
A most effective way to curtail Parliamentary time, is for Parliament to be prorogued. Prime Minister Johnson, through his emissary, Leader of the House Jacob Rees-Mogg, secured the approval of the Queen to prorogue the UK Parliament sometime between the 9th and 12th of September.
Prorogation means that virtually all Parliamentary business ceases. Thus, Parliament would be unable to make any Brexit pronouncements or laws until the State Opening of a new Parliament. In any event, since the return of the Parliament on the 3rd of September 2019, there are only 10 days until the Conference Season starts with the Lib Dems Conference in Bournemouth, and then Parliament is again suspended.
Various UK Ministers of State have stressed the fact that prorogation will only result in another four days in which Parliament will not sit, over and above the normal suspension of Parliamentary business during the conference season. However, these comments are disingenuous for, unlike prorogation, simple suspension of Parliament does not stop all parliamentary business so the issue is not just about the length of time in which Parliament does not sit, it is about the fact that prorogation closes down Parliament much more forcefully. During prorogation, the UK Parliament will be stymied from taking any action against a No-Deal Brexit.
This guillotining of parliamentary time is the main concern of Remainers and has now led to multiple legal actions across all three jurisdictions of the UK. Scotland was the first jurisdiction out of the gates, with an action by Jolyon Maugham QC, Joanna Cherry QC and another 74 Parliamentarians. On Friday, Lord Doherty, in the Outer House of the Court of Session, refused the pursuer’s request for an interim interdict (an injunction in English and common law parlance), on the basis that prorogation will not occur until the 9th of September at the earliest and the substantive hearing on the merits and legality of Prime Minister Johnson’s prorogation is due to be heard on the 6th of September. South of the Scottish border, Gina Miller, buoyed by her success in the Miller case (Miller v S. of S. for Exiting the EU [2017] UKSC 5]) and Sir John Major, have engaged Lord Pannick QC to seek judicial review of the decision to prorogue in the English High Court. Across the Irish Sea, Raymond Mccord, a serial litigator against Brexit, has instituted action against the prorogation, on the basis that to impose a No-Deal Brexit on Northern Ireland would be a breach of the Good Friday Agreement. After an emergency hearing during the court’s summer recess, last Thursday, Mr. Mccord’s case is now also due to be heard next Friday, the 6th of September.
Regardless of which way the Scottish, English and Northern Irish justices decide, the losing side will inevitably appeal. It is highly likely that all three cases will be conjoined when the cases eventually get elevated to the UK’s Supreme Court for adjudication. The primary legal question will be whether the prerogative power to prorogue Parliament is justiciable. All of the pursuers and applicants across the realm of the UK will probably rely on the dicta of Lady Hale in the case of R (on the application of Barclay) v Sec. of S. for Justice [2014] UKSC 54. In this case, Orders in Council were held to be judicially reviewable.
Remainers remain hopeful that the law and the judges are on their side and that a No-Deal Brexit can be averted by the courts giving longer time to the UK Parliament to secure another Article 50 TEU extension, thus avoiding a frightful Halloween.
The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog
Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.