Proroguing the UK Parliament – what does it mean and what happens next?

IIEA2nd September 20197min
In a controversial move on Wednesday, 28 August 2019, Boris Johnson asked the Queen to suspend Parliament. This restricts the time which opposition MPs had hoped to use to legislate against a no-deal Brexit and sparked a number of reactions in the UK. This blog examines the process of proroguing Parliament and outlines the options for MPs ahead of 31 October Brexit deadline.

Introduction

On Wednesday, 28 August 2019, three Conservative members of the Queen’s Privy Council brought Prime Minister Boris Johnson’s request to prorogue Parliament to the Queen’s residence in Balmoral. Later that day, the Queen approved orders to prorogue (formally suspend) Parliament for a period between Monday, 9 September 2019 until Monday, 14 October 2019.

The Prime Minister, who sought legal advice from Attorney General Geoffrey Cox in the days before submitting the request, defended his decision by arguing that a Queen’s speech is needed to announce his new legislative agenda, which will include extra NHS and police funding and investment in infrastructure and science. He announced his plans in a letter to MPs later the same day.

He said that the number one priority of the new legislative programme would be to introduce a new Withdrawal Agreement Bill, “if a new deal is forthcoming at EU Council” and to secure its passage before 31 October 2019.

The Queen’s speech marks the beginning of the Parliamentary year and consists mostly of a list of legislation the Government hopes to pass in the coming year. It is due to take place on 14 October 2019, while the EU Council will meet again on 17-18 October. Boris Johnson said that the House of Commons would have an opportunity to debate the Government’s legislative agenda and any agreement with the EU, on 21-22 October. This would leave just 9 days – 6 sitting days – before Brexit is due to take place, on 31 October. Boris Johnson argues that if he agrees a deal with the EU at the Council meeting in October, Parliament will have enough time to ratify and legislate for the new Withdrawal Agreement Bill.

What happens when Parliament is prorogued?

MPs have a vote on usual recess dates, but no say over when Parliament is prorogued. Prorogation usually takes place annually in late April or early May and marks the end of the Parliamentary session bringing all Parliamentary business to a close. In order to facilitate Brexit legislation, the Government chose not to prorogue Parliament in 2017. When Parliament is prorogued, all MPs keep their seats and continue constituency work. Motions fall when Parliament is suspended and no new motions or bills can be proposed while Parliament is prorogued, although it is possible to carry some Government bills into the next session. In order to sit again, there must be a formal State Opening of Parliament, marked by a Queen’s Speech outlining the legislative priorities for the new Government.

What happens next?

Parliament will sit again on 3 September 2019. There will then be four to seven sitting days before Parliament is suspended. MPs opposed to the move and to a no-deal Brexit have considered measures to try to prevent no-deal, outlined below.

Legislation to block no-deal

Jeremy Corbyn has said that his first priority will be to legislate to prevent the Prime Minister leaving with a no-deal Brexit. This will likely be tabled on Tuesday, 3 September 2019. There are limited ways in which MPs can work to legislate to block no-deal. Backbench or opposition MPs will need to take control of the order paper. This usually happens only to consider ‘neutral’ motions, rather than ‘substantive’ motions which require the House to take a decision on the issue. MPs would have to rely on the Speaker allowing MPs to debate a substantive motion, by interpreting the Parliamentary rulebook accordingly. MPs will then have to draft a bill which commands the support of the House – no easy feat in the currently fragmented political situation. Once they have garnered sufficient support, a business motion must be tabled to allow time to debate and vote on the bill. During this process, the motion may be amended, which could have the effect of further delaying the vote on the motion and passage of the bill. Following this, the bill would need to pass through the House of Lords before becoming law. Here, it is possible that Government peers may seek to block or delay the legislation until after Parliament has been prorogued, allowing it to fall.

Vote of no-confidence in the Government

Jeremy Corbyn has said that if efforts to block no-deal fail, he will call a vote of no-confidence in the Government. However, this is also an uncertain path. Once the motion is tabled and selected, a vote of no-confidence needs a simple majority to pass. The current Government has a majority of one – meaning that only one Conservative MP would have to vote against the Government for it to fall, provided all opposition parties and independent MPs vote the same way.

Should the Government win the vote, the Prime Minister’s plans will proceed as outlined in his letter to MPs on 28 August.

If a vote of no-confidence is passed and the Government is defeated, according to the 2011 Fixed-Term Parliaments Act, there is a 14-day period before a General Election is triggered. In these two weeks, either the existing Government, or an alternative Government formed in the time following, must win a motion of confidence. If this motion is not passed in that time, the Prime Minister is expected to inform the Queen of the General Election date. Parliament is then suspended for 25 days prior to the election date.

Judicial Review

In Scotland, a group of 75 cross-party MPs launched a judicial review into the legality of the Prime Minister’s advice to the Queen and is due to be heard on Tuesday, 3 September. An urgent application has also been made in Belfast by a victim’s rights campaigner who argues that a no-deal Brexit would be in breach of the Good Friday Agreement and are seeking an urgent injunction to prevent Parliament being prorogued. In London, Sir John Major has joined the efforts of campaigner, Gina Millar, to lodge an application for judicial review of the decision which is due to be heard next week. The applications will hinge on whether it is found that the Prime Minister’s advice breached established constitutional law. The petitioners claim that, should the advice be found unlawful, the Queen should be obliged to recall the order proroguing Parliament.

New meaningful vote?

In the current Parliamentary session, MPs cannot vote on the current Withdrawal Agreement again, as the Speaker ruled that MPs could not be compelled to vote on substantively the same motion in the same session. However, in light of the fact that Parliament will be in a new session after 14 October 2019, it would be theoretically possible for another meaningful vote to be tabled when Parliament resumes. While this scenario is extremely unlikely in light of the continuing opposition to the negotiated Withdrawal Agreement, it should be noted that the possibility exists.

Conclusion

The situation presents a number of virtually unprecedented scenarios. For the courts to rule the Prime Minister’s advice unlawful, it would be on the basis that the decision to prorogue Parliament would be a fundamental breach of the UK Constitution, based on the rule of law. While judicial review is a standard procedure, this ruling would be unprecedented.

Jeremy Corbyn has said that a vote of no-confidence would be a last resort option, and it is uncertain whether he would command enough support in the House for this to be successful. Even if he wins this, it is far from clear what the outcome would be; whether a caretaker Government would succeed, given the divisions among political parties, is debatable. It has never been done before. It may ultimately lead to a General Election, but not necessarily before 31 October.

Currently, the Labour Party maintains that its priority is to trigger an emergency debate and bring forward legislation to prevent the suspension of Parliament and to prevent a no-deal Brexit. MPs may also attempt to pass legislation mandating Boris Johnson to seek an extension to Article 50, should he fail to secure a new deal. The House of Lords may prove the most challenging obstacle in passing legislation, particularly on a tight timeframe.

Boris Johnson has made ambitious claims about the possibility of agreeing and legislating for a new deal with the European Council. However, even in the eventuality that the EU agree to re-open the Withdrawal Agreement, it has repeatedly ruled out a deal without a backstop, which is the primary stated aim of the Prime Minister. Should a new deal be reached regardless, an extension would still be necessary to allow time for it to be ratified by both the European and UK Parliaments. All parties have reiterated their desire for the UK to leave with a deal on 31 October. However, the path towards achieving consensus on an orderly Brexit in this timeframe appears increasingly ill-defined.