Proroguing parliament is legal and should be on the table

The impressive thing about Team Corbyn is not just the remarkable consistency with which it demonstrates its talent to screw up, but the faultless timing with which it executes every own-goal.

The latest example of this felicitous combination is its defeat earlier this week on a Commons motion designed to block a WTO Brexit, on the same day that Boris emerged from seclusion to launch his bid for the Tory leadership, with no-deal Brexit as an outcome he was prepared to countenance.

The ultra-Remainers’ 298-309 defeat effectively put a WTO Brexit into play as part of the mainstream Brexiteer strategy for exit from the EU by 31 October. Remainer delusions should be fading fast. Their best ally was Theresa May and she is now off the radar screen, manufacturing a “legacy” by pretending to commit Britain to a £1 trillion non-energy policy that would see the citizens of 2050 rubbing two sticks together to make fire.

The rise of the Brexit Party was an irresistible game-changer. Even some of the Conservative leadership has wakened up sufficiently to recognise that reality, though it is testimony to the depth of the delusion afflicting the Tories that half of the leadership contenders are still denouncing the “catastrophe” of WTO departure and some even imagine the Brexit crisis could be extended beyond 31 October.

The Commons vote and its humiliating outcome for Remainers could not have come at a better moment to boost the credentials of Boris – or Raab – if a Brexiteer fifth column within Labour had cunningly manipulated it.

That is the immediate and overt consequence of this latest Commons exercise in Letwinian natural deselection. But it also has a more important and lasting significance. This was the most recent instance of the Bercow-led House of Commons’ assault on the constitutional precedents and conventions that have traditionally disciplined parliamentary conduct.

By seizing control of government business and attempting to deprive the executive of its legitimate right to conclude international treaties the insurgent Commons has driven a coach and horses through the constitution. That the context in which it has done so is an attempt to negate the verdict of the largest democratic ballot in British history removes any scintilla of moral justification from this elitist insurgency.

That insurgency has clearly signalled that all the customary conventions may be overridden in pursuit of establishment preferences and prejudices, to the limit of defined law and even beyond. And that extravagant conduct has been adopted not to assert the popular will – as in most insurgencies – but to defy it.

In those circumstances, any government would be justified in deploying every counter measure legally at its disposal. If that means resorting to exceptional but lawful means, then those who first adopted a cavalier disregard of customary conventions could hardly seek refuge in the complaint : “Look, we know you have the legal right to do this, but it is not what the constitution intended.”

In other words, by flouting both the verdict of a referendum and the parliamentary conventions the extreme Remainer resistance has created an unassailable case for the use of prorogation of Parliament by the next prime minister to force through a WTO Brexit. It is a move that would be widely welcomed in the country which is exhausted by the blockade imposed on Brexit by the elites.

When parliamentary prorogation was first canvassed – in this column, among other forums – there was an attempt to pooh-pooh it as some kind of outdated 17th-century device. It is no such thing: it is a routinely functioning instrument of government that was employed every year between 2012 and 2017.

Recent prorogations have been uncontroversial, related to the practicalities of parliamentary business. Mostly the prorogation term has been for not much more than a week, though in 2014 it lasted for 20 days. So far from being an obscure and forgotten constitutional device, prorogation is standard parliamentary practice. Since 1854 it has been done by commission, without requiring the Queen’s personal attendance at Westminster.

Prorogation would be the ideal means of overcoming the obstruction of an insurgent parliament attempting to resist the implementation of a referendum. All that is required is for the Prime Minister to request the Queen to prorogue Parliament for a defined period. The need for the assent of the Privy Council has long fallen into desuetude.

Prorogation is totally embedded within the Royal Prerogative and, as a prerogative power, cannot be challenged in the courts. Thanks to the duplicity of remainer MPs a text-book, watertight case for prorogation has been forged by the House of Commons itself. By authorising the invoking of Article 50 (with 498 votes) and then legislating through the EU (Withdrawal) Act 2018 to revert to domestic law in the event of a no-deal Brexit, Parliament has made a WTO Brexit the statutory default position.

The two main parties’ manifestos similarly committed them to implementing a clean Brexit, so that is the mandate the present parliament holds from the public. Resolutions passed in the Commons as expressions of opinion under the Bercow insurgency have no legal standing against statute. MPs themselves, during their hypocritical phase of feigning to respect the public vote, blocked all the mouse-holes for averting no-deal.

The House of Commons, moreover, expressed its confidence in the Conservative Government as recently as 16 January this year, giving it full authority to request prorogation with no constitutional possibility of the sovereign rejecting the request. That is not “dragging the Queen into politics”: it is what she is there for. Since 1688 it is a purely mechanical procedure for which no embittered Remainer could legitimately hold the Queen personally responsible. She, unlike the contemporary House of Commons, continues to adhere to the conventions of the British Constitution.

Any prorogation to secure Brexit would necessarily be longer than has recently been customary. Here, again, the fanatical Remainers in Parliament have provided the justification: using dubious, even doubtfully constitutional, measures in Parliament to “stop Brexit” gives any prime minister a cast-iron case for prorogation to secure the implementation of the public will as expressed at the ballot box. The latest, unsuccessful Commons vote to remove the WTO option from the Government, piled another stone upon the cairn of parliamentary loss of credibility.

The Attorney General Geoffrey Cox confirmed to the Cabinet this week that proroguing Parliament, though controversial, would be legal. With no sign of demented Remainer intransigence diminishing, prorogation emerges as the sole sure-fire method of delivering a clean Brexit. Speaker Bercow’s angry and incoherent attack on the proposal showed his fear of it.

As a new prime minister fails either to win meaningful concessions from Brussels or to break parliamentary obstruction, expect to see prorogation become a more prominent political topic. All that is required is the courage on the part of a prime minister to employ the lawful device our ancient constitution has put at his disposal.

Whether any of the current crop of posturing Tories have the resolution to do so is questionable, but haunting both them and the electorate is their awareness of one incontestable fact: Nigel would not hesitate.