Prorogation of parliament
Boris has made the decision to seek prorogation of Parliament. Voices from all political parties, including elements of his own, have screamed outrage. Is prorogation a political necessity or are the cynics right?
History might provide some perspective.
Prorogation is the process of ending one session of Parliament in order to open another. In recent times, the tendency has been to run a session for a single year. There have been exceptions. If less than a year, typically this is due to a general election being called.
Convention has effectively been changed under the Fixed Term Parliament Act. This provides for polling days to occur on the first Thursday in May of the fifth year after the previous general election, starting with 7 May 2015. Elections can of course take place subject to other conditions, specifically following a vote of no confidence or other agreement by two thirds of the House of Commons to hold an election, such as happened in 2017.
Accordingly, it seems reasonable to prorogue Parliament soon after May in order to start the next annual process. The State Opening of Parliament then follows, last time being June 2017. A key feature is the speech by the monarch, outlining the legislative programme for the session. This forms the basis for debate over the next few days.
Looking back though history, the longest parliamentary sitting was during the English Civil War. That parliament ran from 3rd November 1640 to 20th April 1653. Unsurprisingly, this became known as The Long (and Rump) Parliament, covering 3,322 days, including the trial and execution of King Charles I, finally brought to a close by Oliver Cromwell’s forcible removal of MPs.
More recently, it was in 1927 when Stanley Baldwin announced through the King’s Speech that sessions would start in Autumn, thence typically in November. A brief recall before party conference season was implemented later. The current Spring date became effective as a result of the Fixed Term Parliament Act of 2011.
Returning to the current Parliament, a landmark was reached on 7th May 2019 making this session the longest sitting since the English Civil War and the first since to sit for over 300 days. The previous longest was from 2010-12 at 295 days, notably under the Conservative/Liberal Democrat coalition.
To add perspective, the Convention Parliament of 1688-89 sat for 250 days in the wake of the Glorious Revolution. The longest session in the 19th century was 226 days.
The current parliament has therefore broken records. It has also broken the recent convention of prorogation, State Opening and the accompanying Queen’s Speech to be an annual Spring time event. This will also be the first parliament since records began on timing of sessions, this one due to run for over 3,000 hours of sittings.
Context should be added. It was made clear at the start of the current session that it was intended to run for two years. Leader of the House, Andrea Leadsom said “The UK will spend the next two years preparing for our departure from the European Union in a way that best places us to realise the opportunities ahead and build a fairer society”.
Given that May was elected Prime Minister of a minority government, supported by a confidence and supply agreement with the DUP, many manifesto commitments were omitted from the legislative programme. Indeed, at the time, Jeremy Corbyn, Leader of Her Majesty’s Most Loyal Opposition said “This would be a thin legislative programme even if it was for one year but for two years it is woefully inadequate.”
Prorogation could therefore have been expected to occur in May 2019. Since Brexit was to be a key component of legislation, as Theresa May told us over 100 times, due to occur on 29th March 2019, it might have been understandable for her to delay, especially adding in that the agreement with the DUP was agreed for that session only.
Amid speculation of a delay in April this year, the DUP Westminster leader, Nigel Dodds,said “There is some talk around of extending this session beyond two years. Can I say on that point that I think many in this house, including on this bench, would regard that as something that is not acceptable.”
From the Labour benches, former Shadow Leader of the Commons, Chris Bryant, suggested that delay amounted to “constitutional outrage”. “There’s no point in a parliamentary session if we’ve not got anything to do”.
Combined with the appointment of a new Prime Minister there would appear to be reasonable grounds to suggest that prorogation, followed by a State Opening and Queen’s Speech are overdue. Manifesto commitments have yet to be fulfilled. A legislative programme would be expected to be announced.
Perhaps the real question should be over the new Prime Minister’s motives for seeking prorogation. He has pledged that Brexit will happen on 31st October 2019. “do or die”, “deal or no deal”.
Ostensibly, it is easy to argue that Boris has made the decision in the face of mounting opposition to the “no deal”, not least from within his own party’s ranks. Prorogation has the effect of removing a handful of days from the parliamentary calendar. Debate of the Queen’s Speech removes a few more debating opportunities.
Given that there were shouts, or perhaps whispers would be more appropriate, of “constitutional outrage” at the delay of the Queen’s Speech (therefore implicitly prorogation). Boris would have been damned if he did, damned if he didn’t.
One of the outcomes is that he has gained an element of control. Anti-Brexit strategies could have included the prospect of a vote of no confidence. That might still happen over an abbreviated period, a short sitting in September followed by a longer period in November.
Debate of the Queen’s Speech culminates in an effective vote of confidence. If that fails to pass, there is no basis for legislative programme, therefore political pressure would be on Boris to resign. If he were not to, then a vote of no confidence would be expected to follow, bringing us back to the Fixed Term Parliament Act.
If that vote were to go against Boris, it then falls on the opposition leader to seek to form an alternative government, not a foregone conclusion since Corbyn would need the support of all other minority parties. Alternatively a significant proportion of Conservative rebels would have to switch allegiance or abstain quite openly. A general election would follow.
As well as inviting more pressure onto himself and his party, Boris has simultaneously piled pressure onto those opposing his pledge to leave on 31st October. In the meantime, it should not be forgotten that Brexit does not just involve the UK but also another party, the EU or in fact 27 other parties, the remaining states within the EU. As a potentially outgoing Prime Minister, contentiously he could still hold the power of veto.
It is worth revisiting the Brexit options.
The Boris option is of course to leave, with or without a deal on 31st October 2019. Domestic opponents of prorogation fall into two broad camps, those who seek to remain and those who seek to leave with a deal. The former would revoke Article 50. the latter group have two options, to resurrect the current Withdrawal Agreement which can be brought back to Parliament after the Queen’s Speech, if passed. Alternatively, a further extension can be sought, if the EU27 unanimously agree.
The legal default position is to leave on 31st October without a deal unless the thrice rejected Withdrawal Agreement can be passed, or an alternative deal agreed. Boris has already met with some and spoken with more key leaders within the EU. It may be that he can reopen the Withdrawal Agreement despite previous persistent protestations from EU leaders. For the EU, a key date is their Council meeting on 17th-18th October.
Prorogation restricts Parliament’s ability to come to a conclusion before the European Council meeting to a three day window, from 3rd to 5th September unless provision is made for a recall during party conference season.
In any event, those who ostensibly seek to prevent “no deal” will be under pressure to come clean on whether they really seek to remain. If a vote of confidence were to be passed in the September sitting, it would appear almost impossible to bring in relevant legislation to overturn during the period of prorogation or even logistically to agree on an alternative government. There would be no further scheduled sitting before a general election, the date to be chosen by Boris.
In the meantime, Boris has given himself some room to gain concessions from the EU. They in turn will be under pressure to consider the impact on employment in already precarious economies.
Returning to the Queen’s Speech, this will be presented to Parliament on 14th October. Boris may or may not include references to withdrawal from the EU. The legal default position still stands. There is an argument to say that this means the legislative programme should focus on other issues. Opponents may seek to propose amendments. The EU response will not be announced until the end of that week.
The range of options leads to uncertainty and pressure. Boris has invited it upon himself in a classical display of brinksmanship. He has also dispersed it to his domestic opponents and counterparts within the EU.
If he succeeds, either in achieving a new agreement, a way ahead using GATT Article XXIV or leaving without a deal, he will make his mark in history. Some will consider him a political stalwart and genius. If he fails, in any regard, his legacy will be seen much less kindly.