Don’t indulge the prorogation nonsense
When people claim that the Establishment has conspired to wreck Brexit, they are, of course right. What is not commonly understood is that two opposing Establishment factions are responsible. One is the well-known professional Remainy one, of smooth Blairite, City types, a bit damp around the edges; the other is the Brexit Establishment, exemplified by, but not restricted to, the hard-as-nails European Research Group.
(Incidentally, to outsiders, these factions are now demographically and genetically identical, right down to their accents, the suits they wear, the schools and universities they attend. You have to be eagle-eyed to notice their exaggerated differences over issues such as climate change, social liberalism and the appropriate proportion of vegetables in the diet).
The ERG & co spent six months blocking the Withdrawal Agreement, in the wrong-headed expectation that we would drop out of the EU automatically on March 31st. I kept warning them that Parliament would simply delay departure, as it had the power to do in the Withdrawal Act, but they didn’t listen. “Rubbish,” they said. “It is illegal.” Well, that went well.
Their latest cunning plan is to prorogue Parliament so the next October Brexit deadline comes and goes without anything being agreed, so again we drop out without a deal.
It is hard to know how to respond to this latest, cretinous suggestion, which will go wrong and inevitably lead to another humiliation and, most likely, a General Election. It may, theoretically, be legal as Gerald Warner suggested on this site recently. But it is stark, staring raving bonkers and won’t work.
It used to be the case that Tories had absorbed an understanding of both the constitution and of market economics with their mothers’ milk. But they no longer understand either of these things. The only doctrine which matters in the British constitution is that Parliament is sovereign and any group with a majority in the Commons can do whatever it wants. In fact, reasserting this principle was once the whole point of Brexit.
How can Parliament stop itself being prorogued against its will? Easily, is the answer.
The first opportunity will come when it approves the next Prime Minister. The choice of the next Prime Minister isn’t up to the Conservative Party. It is up to the Queen. And she must choose someone who can command a majority in the House of Commons. But the Conservative party does not have a majority. There is no prospect whatever of the winner of the Conservative leadership contest commanding a majority and forming a Government, without first committing not to prorogue Parliament.
As in 1963, with Sir Alec Douglas-Home’s appointment, the Queen will likely ask the winner of the leadership contest to see if he can form a Government. He will then have to scramble around with the DUP and his backbenchers to cobble together a majority. Only then will he kiss hands. Sir Alec spent an embarrassing 24 hours winning over his rival RAB Butler and his gang, thereby obtaining a majority, before the Palace confirmed he had kissed hands. Any proroguishness and the Government won’t get through a vote of confidence.
The next opportunity would occur if the new Prime Minister asked the Queen to prorogue, as superficially she would be bound to agree. There are two relevant precedents.
The first, cited by some, is 1948, when Attlee asked George VI to prorogue Parliament. But on closer inspection, this is no precedent at all. Attlee had won a landslide election victory and had a majority of 145. He wanted to revise the terms of the Parliament Act, 1911, to reduce the delaying power of the House of Lords to two years. The legislation was passed by a thumping majority in the Commons and no substantial or effective protest came from the Opposition about using prorogation to expedite its passage.
The other precedent is revealed in a research note published by House of Commons library and is more recent, from Canada (also a Westminster system) in 2008. Stephen Harper, the Canadian Prime Minister, wanted to prorogue Parliament to avoid a Confidence Vote. Yes, said the Queen’s representative, the Governor General. As long as you can demonstrate you have the confidence of Parliament by passing a Budget when it returns.
As the library note makes clear: “Crucially, the Governor General took into account, but did not consider herself to be bound by, the advice given by the Prime Minister in this particular context.” In other words, the Queen would be within her right to demand assurances that the new Prime Minister had Parliamentary support for his actions. Parliament itself can petition the Monarch or pass a Humble Address to demonstrate otherwise.
Supposing the new Prime Minister nonetheless wangled a prorogation, what next? The answer is none of the emergency legislation which is required to make No Deal work would be passed. In particular, the autumn estimates which approve the money for the second half of the year would not pass. The Government would literally run out of cash. There would be chaos. When Parliament returned the Government would almost certainly lose a confidence vote.
It only takes three disgruntled Conservative or DUP MPs to vote against the Government and just about any legislation will be blocked. If the matter is a Confidence Vote, there will be a General Election, which, judging by the polls, the Conservatives would likely lose. prorogation? A brilliant strategy, bound to work. Well done everyone.