Public Policy

September 24, 2019

Process, Prorogation, Parliament and the Politics of it all…


This piece was written ahead of Corbyn’s Labour Party Conference speech and does not cover any changes resulting from this. All details are accurate at the time of publication.

Earlier today, the UK Supreme Court handed down its decision regarding whether the Prime Minister had acted lawfully in asking the Queen to prorogue Parliament from early September until mid-October. Without a formally written Constitution, much of what happens is governed by precedent.

From a legal point of view, there were a few questions the Court had to ask (and answer) before it could get to the crux of this matter.

  1. Is the advice of the Prime Minister to Her Majesty justiciable (subject to trial or consideration in a court of law)?

Yes, the Court held it was, and reiterated the courts have long held supervisory powers over the acts of Governments for centuries. This includes prerogative powers which are exercised by the Monarch on the advice of the Prime Minister.

  1. What are the limits of that power?

For this matter, the limit is whether the use of that power had the effect of frustrating or preventing, without reasonable justification, the Parliament doing its job and carrying out its functions as the legislature and the body which holds the Executive (the Government) to account.

  1. Did the prorogation have that effect without justification?

The Court held it did have that effect and there was no reasonable justification. The Court had no alternative but to conclude the decision to advise Her Majesty to prorogue Parliament was unlawful. This was the unanimous judgment of all 11 Justices.

What does this mean for Parliament, for Brexit and for the Prime Minister? Politically, many would argue there isn’t going to be a dramatic shift; all interested parties have their fixed positions and this is unlikely to change, whether it’s the Conservatives, Labour, the Liberal Democrats, the SNP, the DUP and also the European Union.

From a procedural point of view, the effect of the ruling is that Parliament is still in session from Monday, September 9. The Speaker has asked MPs to return to the Commons at 11:30am tomorrow (Wednesday, September 25th). What is unclear is what the business of the House will be… though one expects Brexit to be high on the agenda! The Conservative Party Conference is scheduled to begin on Sunday morning and conclude with the Prime Minister’s speech on Wednesday; it’s not known if Parliament will be in recess or in session for the Conference (normally there’s a Conference recess), but the Party and Number 10 remain committed to Conference.

Politically, it puts increasing pressure on the Prime Minister to demonstrate what he’s doing to secure a Withdrawal Agreement before the next European Council on October 17.

Key points:

  • The law itself has not changed and the default position is that the UK leaves the EU at 2300 GMT on October 31.
  • The Benn Bill forces the Prime Minister to seek an extension if the Parliament hasn’t approved a deal or leaving without a deal by October 19.
  • The Prime Minister can either comply or refuse – though what happens then is up in the air; either way, the Government says they remain committed to leaving the EU on October 31 – no ifs, no buts.

What happens when Parliament resumes is currently being discussed with Party Leaders and Business Managers. Some opposition parties are calling on Boris Johnson to resign as PM; however, this is the most unlikely of outcomes. It seems increasingly likely an election will be held before Christmas, certainly within the next six months, but the trigger is unknown.

Potential triggers:

  • Parliament votes for an early election

This requires a two-third majority; the Prime Minister has twice tried to trigger an election using this mechanism, but Labour refused to vote for it because they believe it risked a no-deal Brexit by default.

  • A motion of no confidence is passed

Jeremy Corbyn, the Labour Leader, has brought forward his Conference speech and may set out Labour’s plans for a Motion of No Confidence in the Government but with the Liberal Democrats saying they couldn’t support Jeremy Corbyn, what might happen then is simply a known unknown.

What is clear is that the Government will continue to build this decision, on top of the actions of Parliament, into their rhetoric of Parliament vs. The People.