Attempts to shut down Parliament against MPs' wishes would drag Her Maj into a constitutional crisis.
If you thought Brexit could get any worse, the monarchy could soon get involved.
MPs would struggle to block a Tory PM’s attempt to shut down Parliament, according to a new House of Commons library briefing. And that poses some big constitutional problems.
Talk has been heating up among the Tory right of ‘proroguing Parliament’ – i.e. ending the Parliamentary session early – in order to force through a disastrous No Deal Brexit on October 31st. Two contenders – Dominic Raab and Esther McVey have seriously suggested backing the move – overriding the wishes of MPs.
The suggestion was instantly dismissed as undemocratic and impossible by many commentators. Indeed, Speaker John Bercow said: “That is simply not going to happen; it is so blindingly obvious that it almost does not need to be stated.” Except it did.
According to the House of Commons library: “Prorogation being a prerogative power, there is no obvious legal mechanism by which Parliament could prevent its exercise [my italics] otherwise than by passing legislation to constrain it.”
This throws up some worrying democratic questions.
Ending the Parliamentary session is a power ‘exercised by the Crown on the advice of the Privy Council’. In practice, this advice is given by Ministers of the Crown. But if the Commons doesn’t wish to shut down Parliament, and the Prime Minister does…who does the Queen side with?
It is a very rare and odd constitutional position to be in. ‘Usually’ – or at least previously – the Prime Minister commands the support of the House. But we have a hung Parliament.
“Whether the Crown must always follow Ministerial advice in the context of prorogation is contested but has not, in modern times, been tested in the UK.” We are in uncharted territory.
It means attempts to shut down Parliament against MPs’ wishes would drag the Queen into a constitutional crisis.
As the Commons Library point out: “Were a UK Government to lose (or were to appear to be about to lose) the confidence of the Commons, it is not clear whether prorogation advice from Ministers would automatically be followed [by the Queen]”.
This issue was last tested in Canada, in late 2008. In the face of opposition parties uniting to try and kick out the government, rather than face the (then likely) defeat on a vote of no confidence, Stephen Harper asked the Governor General to prorogue Parliament. The Governor General – a representative of the Queen – agreed. Parliament stopped sitting. Harper won: the opposition’s bid fell apart in that time, and the Conservatives stayed in power.
However, that successful attempt in 2008 was done by the Governor General – a more political role than in the UK, where it would be the Queen directly making the call. In Canada, they had one degree of separation between the Queen and the Governor, giving HRH some cover. Not so in the UK: the question goes directly the Mrs Windsor.
Here’s how it happens in the UK. If the Queen says ‘yes’ to prorogation, a Commissioner addresses the House of Lords: “My Lords, it not being convenient for Her Majesty personally to be present here this day, she has been pleased to cause a Commission under the Great Seal to be prepared for proroguing this present Parliament.”
So would a Tory PM be prepared to put the Queen in that invidious situation? Even asking would put Our Liz in a tight spot.
On Wednesday the SNP’s Ian Blackford called on the PM to clarify how the Queen might act in such a scenario at PMQs – but May refused to properly respond, saying she would not speak on behalf of Her Majesty.
Yet by refusing to clarify what the constitutional norm would be, Theresa May has inadvertently put more of the responsibility in the Queen’s hands – making Her Maj’s eventual decision if it happens even more political.
That’s why the Opposition Day debate today – to take control of the Parliamentary timetable on June 25th and block a no deal Brexit – matters so much.
If it doesn’t pass – i.e. if MPs do not pass that clear anti-No Deal legislation that would make the Queen’s job easier (and all of our lives, obviously) – a hard-right Tory PM could claim to have the confidence of the House in trying to shut down Parliament to force through No Deal.
Now, key leadership figures like Boris Johnson has not endorsed the ‘Shut Down Parliament’ call. But – judging by his previous form – that does not mean we should assume we’re safe. He is talking up the prospect of No Deal. He will be treated as the darling of the Tory right if he wins. And we should all be concerned.
The hard Brexiteers are insurgent. And if they get their way on this issue, their beloved Queen and country really are in trouble.
Josiah Mortimer is Editor of Left Foot Forward. Follow him on Twitter.
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