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Explained: The legality of prorogation

Boris Johnson’s plan to prorogue Parliament has been met with outrage by many of those who oppose a No-Deal Brexit. The PM’s plan to shut down Parliament between the 11th of September and the 14th of October is seen by many as power grab by the Executive, designed to stop Parliament having its say on a No-Deal departure. The Government insists that prorogation is perfectly normal and that a new Government requires a new Queen’s Speech.  But which camp has the constitution on its side?

 Is prorogation normal?

Prorogation in itself is not a constitutional rarity. It occurs every time a government wishes to reset its legislative agenda in order to make way for a Queen’s Speech. However, what makes Mr Johnson’s planned prorogation stand out is the sheer length of time he proposes to dissolve Parliament. Critics of the Prime Minister worry that Mr Johnson is using prorogation as a political tool to limit the amount of time rebel MPs have to try and block a No-Deal Brexit. Indeed, even after the House resumes sitting, the business of the House will be dominated by the legislation surrounding the Queen’s Speech. In effect, MPs could lose their ability to challenge a No-Deal Brexit before Britain in due to leave on October the 31st.  

 Could a judicial review stop prorogation?

Those who oppose Mr Johnson’s plans, including erstwhile Prime Minister Sir John Major, have suggested that a judicial review could stop prorogation. Any case built against the Government would likely argue that Mr Johnson’s request is unreasonable. Lawyers for those opposed to a No-Deal break from Europe would likely argue that the proposed prorogation is designed to stop Parliament having its say on a No-Deal, effectively preventing Parliament from carrying out its constitutional function of scrutinising government.  

The Government would likely make the case that Parliament has had three years to discuss how Britain should leave the EU.  Although it is clear that there is no majority for No-Deal in Parliament, the Government would likely point out that there was no majority for Mrs May’s deal, a Customs Union or an internal market. The only piece of legislation to receive a majority was the Brady Amendment which sought to find alternative solutions to the Northern Ireland Backstop.  As the Brady Amendment is impossible to implement without the EU changing its position, Johnson would argue that the legal default is No-Deal as Parliament has failed to agree previously on any alternative outcome and that Parliament has already had ample opportunity to discuss the issue.

 Could a successful vote of no confidence in the Government prevent prorogation?

A successful vote of no confidence in the Government seems unlikely. Although many Tory MPs are prepared to rebel over No- Deal, they worry that bringing down the Government could risk their own political careers and possibly lead to a Jeremy Corbyn government. However, if Johnson were to lose a censure motion, according to the FTPA, a 14-day process would then ensue during which other parties could attempt to form a government. In reality, the FTPA is very opaque. Johnson could easily run down the clock over the 14- day period, unless an alternative PM such as Jeremy Corbyn or Ken Clarke could prove they could win the support of the House.  Given the Executive’s power over the business of the House, it would be difficult for an alternative candidate to prove they enjoy the confidence of MPs. Without a new government, at the end of the 14 days, a General Election would be triggered, dissolving Parliament. Similar to prorogation, the dissolving of Parliament for an election would prevent the House from discussing a No-Deal Brexit, possibly leading to Britain crashing out of the EU without a deal on the 31st of October due to legal default.  

 Like many of the events since the referendum, Britain is in uncharted territory. A tug of war will now ensue between the Executive and Parliament. Her Majesty the Queen is the rope.  Although it is impossible to predict what the future holds, the sheer power held by the Executive gives them the upper hand in this battle over Britain’s future. It seems increasingly likely that Boris will be having the last laugh on Brexit. 

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