At the time of writing, shockwaves are still being felt around the UK and beyond, in the wake of Boris Johnson’s decision to suspend Parliament. Not surprisingly, questions are being asked about the legitimacy, as well as the wisdom, of this course of action. From a legal perspective, what is going on?
The announcement has been made that the Queen and her Privy Council have consented to prorogue (i.e. shut down) Parliament. Accordingly, the Government may now suspend the legislature, no earlier than 9th September and no later than 12th September, until 14th October, when the Queen’s Speech is scheduled to take place. This has led to an outcry from various quarters: Jeremy Corbyn, as Leader of the Opposition, has described it as a “smash and grab” on our democracy, whilst the Scottish First Minister, Nicola Sturgeon, has described the current state of affairs as “a dictatorship”.
There are already legal challenges in train, as well as further action threatened. Before the decision by the Privy Council was even made public, a group of Scottish Parliamentarians and their allies (including Lord Winston) instigated a civil challenge in the Scottish courts, seeking the equivalent of an injunction. Their argument was essentially that the suspension was unconstitutional, as it would remove political accountability. In addition, Gina Miller has also made a judicial review application in respect of the prorogation.
Are these criticisms founded? Is the Prime Minister’s action unlawful? The answer to that is not black and white, given that there is really no precedent for the current situation, either in the technical or colloquial sense of the word precedent. We have never been faced with anything comparable, meaning that we have no established guidelines and no map. At one level, what Boris Johnson has done fits entirely within orthodox constitutional theory, as learnt by all undergraduate students of law and politics. The textbooks tell us that the capacity to prorogue Parliament is vested in the Crown, being an exercise of the “Royal Prerogative.” This is the residual authority held by the executive branch of the State, the remnants of the once vast powers in the hands of Medieval royalty. These prerogative powers come in various forms, for instance, some are recognised as being carried out by Government ministers, or specific figures such as the Attorney General, but others remain as personal powers vested in the Sovereign, and the right to summon or prorogue Parliament belongs to this category.
Despite the exceptional circumstances, Buckingham Palace has retained its commitment to neutrality on political matters, and simply acquiesced to the Prime Minister’s request in compliance with constitutional conventions. Whilst some commentators expressed a wish for the Queen to intervene personally, it is difficult to see how this could have been defended in the XXI century. Any individual wielding such immense political power solely on the basis of an hereditary claim would undoubtedly be at odds with democratic principles. Had Her Majesty stepped into the fray over Brexit, it would necessarily have blown apart the present constitutional settlement. The role of the Monarchy would have had to have been drastically revised once the dust had settled. Powers which are currently vested in the Queen on the tacit understanding of permanent forbearance, would have to be stripped away, if ever that forbearance crumbled.
In any event, we should not allow academic questions about the Monarchy to distract our eye from the ball. This episode is primarily another round in the boxing match between the legislature and the executive. The fight has been ongoing since Theresa May began her premiership, when Parliament demanded control of the Brexit process, and was backed by the Supreme Court in taking it. In one sense, this was wholly predictable, given that in both legal theory and practical terms, the legislature is supreme within the British Constitution, and the system of Checks and Balances on the exercise of power is consciously weighted in its favour. The complication, however, is that the system is not geared up for a scenario in which Parliament and the Government are at loggerheads. In normal circumstances, a Prime Minister cannot form or maintain an administration without the support of the majority of the House of Commons. Consequently, we really do not have a blueprint for dealing with a situation of ongoing conflict between these two branches of State.
This explains the current impasse, and also why Boris Johnson and his supporters argue that their course of action is appropriate. The difficulty lies in a question which has been swept under the carpet since the Civil Wars and political earthquakes of the XVII century: who makes Parliament Sovereign? Jacob Rees-Mogg, in justifying the prorogation, has argued that the People confer sovereignty, and Parliament is betraying them in refusing to implement the result of the referendum. In the modern context, the prevailing view is that the legislature, or more precisely, the House of Commons, is the strongest actor in the Constitution, as it is the only one to be democratically chosen and accountable. From this position, it is easy to see how somebody might be tempted to make the leap to assert that a Parliament which turned its back on its democratic mandate had lost its legitimacy. Nevertheless, the chasm of logic is too wide to cross.
First and foremost, claiming to be the true champion of the People, and using that as a pretext for ousting their democratically elected representatives, is a well-worn trope of despots purporting to be liberators. The palpable anger of the nearly 50% of citizens who voted Remain makes it untenable to argue that Johnson is acting with overwhelming popular support, but even if he had widespread backing on Brexit, that still would not justify bypassing Parliament. It is not for Boris Johnson, or any other individual, to pass judgement on whether the current crop of MPs have honoured their commitments to the electorate. That verdict can only be given by the People themselves at the ballot-box. In light of this, whilst the use of the Royal Prerogative to prorogue Parliament may be within the letter of the Constitution, employing it as a tactic to try to side-line the legislature is going against the spirit of representative democracy.
It should be acknowledged that the Prime Minister has not actually issued a Cromwellian “In the name of God go!” to his fellow Parliamentarians. He points out that the legislature has been suspended, not dispensed with, and that there will be an interval between the Queen’s Speech and the 31st October Brexit date, during which MPs can debate and pass what motions they see fit. Nonetheless, understandably, his opponents protest that this as too short a time.
With the Halloween deadline looming, and a plethora of other social, political and environmental issues crying out for attention, the pressure for a resolution to Brexit continues to mount. Whether this will ultimately explode into the fall of a Government and a General Election, or the cataclysm of a No Deal Brexit, remains to be seen. There is still hope of finding a political release valve, and achieving a negotiated solution, which a critical mass of parties can at least accept, if not necessarily celebrate. At the same time, however, the window of opportunity for this to happen is closing rapidly.
*This article further develops some thoughts which were published in an article which appeared in El Pais on 29/8/19, please see the link below.
Related Articles
Parliament suspension sparks furious backlash (BBC News 29/8/19)
Scottish court hears move to stop UK Parliament’s suspension (BBC News 29/8/19)
Cómo silenciar al Parlamento (El Pais, J García Oliva 29/8/19)
Parliament suspension: Queen approves PM’s plan (BBC News 28/8/19)
Brexit: Legal bid to prevent Boris Johnson shutting down Parliament (BBC News 6/8/19)
The Royal Prerogative Briefing Note (House of Commons Library 17/8/17)
