Prorogation, Brexit and the rule of law
Brexit continues to throw light on many practices of the UK’s constitution that often are obscure or not readily understood. Professor John McEldowney from the Department of Law at the University of Warwick casts a lawyer’s eye over what’s going on.
Prorogation is the means to end a Parliamentary session . The Crown, grants prorogation on the advice of the Privy Council by exercising a prerogative power on the request of the Government of the day.
Prorogation has the immediate consequence of ending the proceedings of both the House of Commons and the House of Lords and is normally for a short period of time. Since the 1980s, the normal period is no more than two weeks between sessions of Parliament and often lasts less than a week.
Normal practice is for prorogation to be used to allow the start of a new session of Parliament or, in certain circumstances, for a General Election. The effect of prorogation is to reduce the influence that Parliament has on the government of the country.
During the period of prorogation, MPs and peers are unable to formally debate or pass legislation. Select committees, an important means to scrutinise the working of government departments, are unable to sit. But when Parliament is not sitting, the government can still make use of delegated powers, such as statutory instruments, and bring such powers into force. It can also make use of other prerogative powers. The Government is unable to pass primary legislation and it cannot make additional provision for government spending.
The UK’s unwritten constitution
The use of prorogation has been largely uncontroversial. It is primarily a technical procedure designed to speed up a smooth transition from one Parliamentary session to another. The Government of the day, it is assumed, has the confidence of the House of Commons. The procedure of advice to the Crown flows from this ability to command this confidence of the Commons as a whole. It does not usually take place against the express or implied wishes of the Commons.
The advice given to the Crown is usually nuanced in favour of continuity with past practice and conformity to the moral convention of regularity and due process. The UK’s largely unwritten constitution sets a high standard for all constitutional actors to behave with prudence and propriety as well as in the best interests of the public. It places political power at the apex, while acknowledging the rule of law and giving respect to constitutional propriety and due process.
The politics of the day may at times appear to overwhelm the very essence of the constitution, namely respect for the rule of law and a moral consensus on what is possible. Sanctions of a political nature are rarely translated into legally enforceable rules that compel the government of the day to act with self-restraint or, indeed, obey existing conventional wisdom.
A lacuna, namely a gap in restraint over some untried use of procedure or practice, whenever it arises, is to suggest that the courts might intervene and fill any gap through articulating legal rules and procedures. In the absence of written constitutional rules, this may prove difficult – though depending on judicial inclination, not impossible.
The main constitutional route to revoke or prevent the application of the prorogation prerogative would be for Parliament to pass legislation to replace it. This is now being actively pursued by the Opposition Parties alongside a number of influential MPs on the government side.
It may be argued that the primary duty of the Government is to govern, interpret its manifesto and enact laws that reflect the electoral mandate received at the general election. A minority government may struggle with that expectation - the current government has been experiencing a diminishing majority since 2017 and now has no overall majority over the other political parties. However, it is not the Government of the day but Parliament that is at the apex of our constitutional arrangements and has the control of determining what laws to pass and holding government to account.
Brexit and the Rule of Law
Brexit continues to throw light on many practices of the UK’s constitution that are often obscure or not readily understood. There are many more questions than answers as constitutional history does not always prove a reliable guide for contemporary issues.
The Government’s decision to seek prorogation for between four to five weeks, is deeply controversial, given the current circumstances. The length of time is unprecedented in recent times as the average length for prorogation has been about eight days. However, a House of Lords Library Paper  on the Lengths of Prorogation since 1900 has shown that in many instances, particularly leading up to an election, the length of time could be longer, than the current prorogation, even as long as 182 days.
But it is the timing of prorogation that is objected to, coming as it does at a critical stage in the run up to the UK leaving the EU on 31 October 2019. The decision has been heavily criticised for disallowing Parliament from discussing Brexit, particularly both no deal and the withdrawal agreement. These have both already been rejected in the current session 2017-19.
It is a particularly sensitive time as the default position is that the UK leaves the EU on 31 October 2019 without a deal unless a Withdrawal Agreement is ratified or there is a further extension applied for and granted under Article 50 or the UK revokes Article 50. The period of prorogation makes it difficult for Parliament to have time to debate any of the above options (based on the experience of the past months leading up to the 29 March deadline), leaving the Executive largely in charge of what will happen.
Prorogation in the circumstances of Brexit sits uneasily with ideas of fair play, compromise and negotiation. Its justification has to be persuade the electorate as well as individual MPs.
Legal challenges in the courts to prorogation in Scotland, Northern Ireland and England and Wales are ongoing. The likelihood of success is hard to judge as political choices and decisions are mired in controversy, often making their review complicated and controversial. It is clear that the decision to prorogue Parliament can be easily made, but its unintended consequences may be greater than was expected.
 House of Commons Library, Briefing Paper Number 8589, Prorogation of Parliament (11 June 2019).
 House of Lords Library, Lengths of Prorogation since 1900, Briefing Papers (2 September 2019).
5 September 2019
John McEldowney is Professor of Law at the University of Warwick. He is Deputy Chair of the Study of Parliament Group.
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