When I wrote earlier this month about the legislative pathways to Brexit, I was able to draw upon a wealth of expert advice to provide what we hope was a useful guide for those uninitiated in the minutiae of Commons procedure.
I felt the need only for a small, qualifying note of caution, namely that John Bercow might choose to rip up the rulebook and throw everything into chaos – as he proceeded to do that very afternoon.
No such detailed and authoritative counsel was immediately available this time. The constitutional law surrounding prorogation has apparently been a non-issue for such a long time that my usual sources had little further reading to suggest.
Moreover, as Mr Speaker has illustrated, theoretically clear constitutional mechanisms are quite capable of being sabotaged if the will is there. This piece will therefore be considerably shorter and, necessarily, more speculative than the above-mentioned one.
That said, the answer to the question “Could Theresa May prorogue Parliament?” appears to be “Yes” – although the Government would need to be very careful.
According to this page on the Parliament website, “The Queen formally prorogues Parliament on the advice of the Privy Council” – which in matters of this sort is represented by the Cabinet. Then she dispatches the Royal Commission, comprising five peers from the Privy Council, to the House of Lords to conduct the formal ceremony, and Parliament is prorogued.
This idea not only fits the descriptions I have found for how the process works, it also matches best to what happened in Canada in 2008, when the Governor General briefly prorogued the parliament there at the reqest of Stephen Harper’s minority Conservative administration.
Suffice to say, pursuing such a course of action in the current context would take an extraordinary degree of political will, not least because it would mean abandoning however much of the Government’s no-deal preparation legislation had not yet received Royal Assent. More importantly, a prorogued Parliament could not pass the Withdrawal Agreement Bill or even the Meaningful Vote. Prorogation only works as a means of delivering a no-deal exit.
Ministers would also need to take a very pro-active approach to protecting both the constitution and the Queen from the attacks this move would invite.
For example, the mechanisms themselves would doubtless come under attack from the usual constitutional change lobbies, allied to outraged europhile opinion. The move itself would be cast as another ‘constitutional outrage’, and whilst the bar for that has been set so low as to be meaningless that wouldn’t stop the charge cutting through if the Government did not have a strong, clear justification for its action and a pro-active attitude to selling it to the country.
There might also be arcane attempts to actually short-circuit the process of prorogation. One such – which hinges on the idea that the Cabinet is not actually able to represent the Privy Council in deciding the question – has already been floated as part of the parallel debate about whether or not the Government can effectively withhold Royal Assent from a bill.
I think that particular claim is handled well enough in the tweets below it, but ministers would be well advised to have sort of constitutional-law tiger team in place to foresee and forestall such efforts as much as possible.
Furthermore, since the Royal Commission includes the leaders of both Labour and the Liberal Democrats in the Lords, the latter of whom especially might not be willing to take part in the usual constitutional theatrics on this occasion, the Government ought to be sure of whether it can refill the ranks of the Lords Commissioner. It would be very unfortunate if the Queen were forced to become the first sovereign since Victoria to deliver the prorogation address in person in such circumstances as this.
In summary, then, a short-term prorogation strategy appears to be constitutionally viable. But it seems fantastically unlikely. If the Government does find its position in the Commons untenable, and were prepared to be as aggressive in pursuit of ‘no deal’ as such a course would require, a general election would almost certainly be its preferred course.