Flat White

Dare Boris Johnson go rogue and prorogue?

3 August 2019

9:33 AM

3 August 2019

9:33 AM

An old, seldom-used word has been on the lips of British MPs and political commentators alike in recent days. With the election of Boris Johnson as the UK’s 55th Prime Minister, the Brexit deadlock and this week’s by-election loss it promises to be on many more lips in the coming days and weeks. The word is “prorogue.”

Prorogation is a concept – almost a habit – better recognised in Australia, and in a number of other Commonwealth countries, than it is in the UK. But what exactly is it, and why is it spooking out English brethren so?

In a nutshell, parliament is prorogued when one session comes to a formal end. This is distinct from dissolution, which takes place immediately prior to an election. Parliament is often prorogued, and then dissolved in swift succession, but the two are nonetheless distinct and different. When merely prorogued, MPs retain their jobs and are effectively sent home to their constituencies for anywhere between a couple of days and a couple of months. Importantly though, in that period, however long or short it may be, they cannot sit to debate what might otherwise be considered the normal business of their respective Houses.

With various threats from inside and outside his own party to stymy a no-deal Brexit, Johnson has yet to rule out proroguing parliament – effectively locking the doors of Westminster, and refusing to allow MPs to meddle in what he sees as more rightly the business of Government than Parliament. Indeed, Jacob Rees-Mogg, now Lord President of the Council and Leader of the House of Commons, kept the option distinctly open during this first address to the Commons just last week.

To make good on the threat, a prime minister would need the Queen’s consent, but that is seen by most as a technicality in this day and age.

Since proroguing was first suggested as a means of breaking the parliamentary deadlock, opponents of Brexit have labelled it as undemocratic, with some even going so far as to suggest that such a thing hasn’t been contemplated since Charles I prorogued the English Parliament in 1629, and began eleven long years of personal rule without any form of democratic oversight.

In the modern context, it is interesting to recall that those eleven years between the Short and Long Parliaments began with the King making peace with both France and Spain. Without Parliament to raise taxes, he had little choice but to return to the European fold, which is arguably the very antithesis of what Boris has in mind.

Indeed, the Civil War didn’t materialise until Charles had recalled his politicians to London, which might be a salient lesson for us all. Regardless, melodramatic claims that British democracy now sits on an almost unprecedented cliff-edge fall (to borrow from the Johnsonian idiom) somewhere between piffle and poppycock.

Not only are there plenty of recent examples of parliaments being prorogued, but enough of those were for the purpose of bare-faced political gain as to give ample precedent within the context of Brexit. Some examples stem from recent British history, while others are from Commonwealth countries who share Britain’s Westminster tradition. All suggest that the new Prime Minister might well be on to something.

Some media outlets have touched upon the passage of the Parliament Bill in 1948 when Labour Prime Minister Clement Attlee advised George VI to prorogue Parliament as a means to get around House of Lords objections to a raft of new representative measures. What hasn’t necessarily been made clear was that those objections were of a purely political nature, and the resultant prorogation was just as politically motivated. Attlee could as easily have sat back, bided his time, and let things take their course (he would have won in the end through both weight of numbers and parliamentary convention, though it would likely have taken him several additional months, and a good deal of hard work). Instead, he used the royal prerogative as a political tool.

And while that might be the most recent and relevant example from British history, Johnson can also take comfort a little further afield in some of the more influential Commonwealth countries, where the practice of prorogation has been more recently employed to good and distinctly political effect.

In 2008, the then Canadian prime minister Stephen Harper requested that the Crown (through the offices of Governor-General Michaëlle Jean) prorogue the 40th Canadian Parliament, solely with the aim of delaying a threatened vote of no-confidence in Harper’s minority Conservative government. Let’s be frank – not only does that resonate with the position in which Johnson now finds himself, but you would also be hard-pressed to find a more politically motivated reason for such a request.

Jean accepted the Prime Minister’s advice and effectively closed Parliament for just under a month.

There are, admittedly, indications that she did not do so automatically. Her meeting with the prime minister and his advisors prior to the formal announcement lasted for more than two hours, and she was at pains to stress in subsequent media interviews that she considered herself to have been in a position to refuse. “I was,” she maintained, “in a position where I could have said no.”

The response to the Canadian prorogation was mixed, with some claiming, in the fashion of the modern Remainer, that it was nothing less than a serious blow to parliamentary democracy. Others, most particularly the Deputy Speaker of the Canadian House of Commons, Bruce Stanton MP, have since reflected that the suspension was “perhaps the last tool in our basket … to allow parliamentarians to take a step back.”

If ever Britain’s parliamentarians were in need of a mechanism which allowed them to step back from deadlock and dissent, it is surely Brexit.

There are more recent precedents to be found in Australia, where prorogation has for a variety of reasons been rare, but is certainly not unheard of, and was in the news as recently as three years (and just one Prime Minister) ago.

Since 1961, the Australian federal parliament has been prorogued without then being dissolved on four occasions. Two of those were purely ceremonial, to allow the Queen to go on to (re)open parliament during the royal visits of 1974 and 1977. Tragedy led to a third instance – the disappearance of prime minister Harold Holt at sea in 1967, and the fourth can be said to have stemmed from purely procedural concerns, when parliament met for a single day in November of 1969 following a House of Representatives election, allowing new members to be sworn in, before being prorogued until the following March, in line with the usual summer recess.

Given that background, many commentators were surprised when prime minister Malcolm Turnbull requested in March 2016 that parliament be prorogued on Friday 15 April, only to be recalled to sit again on Monday 18 April with the specific aim of considering two pieces of legislation – the Building and Construction Industry (Improving Productivity) Bill 2013 (and its associated Consequential and transitional Provisions Bill), and the Fair Work (Registered Organisations) Amendment Bill 2014. In that instance, the prorogation had the effect of wiping the parliamentary slate clean of all other bills and considerations and focusing the Senate in particular on the government’s agenda. In other words, the prime minister’s advice to the Crown was based wholly upon political expediency.

Like Attlee in 1948 and Johnson in 2019, Turnbull could have sat back and let matters proceed at their own pace. His Bills would still have been considered in due course. Instead, he made a political decision, on a political issue, and requested that the royal prerogative be employed in that context.

Advice received from the attorney-general at that time, then-Senator George Brandis, stated that prorogation was “soundly based in constitutional law and well-supported by a large and uniform body of constitutional precedents.” Brandis also attached a detailed historical analysis of previous prorogations, including a 1914 case in which the governor-general had prorogued parliament to “expedite the despatch of urgent public business,” before concluding that the governor-general must exercise the power to prorogue upon receipt of advice from the Prime Minister and that there was “no known suggestion” of any circumstances in which such advice could be rejected.

Needless to say, under those circumstances Turnbull’s advice was heeded, and his request adhered to. Ironically, Brandis, the legal mind behind what was commonly regarded as a sly-but-entirely-legal political dodge, is now Australia’s High Commissioner to the Court of St James, working out of an office some five minutes’ away from Downing Street.

First Sir John Major, and then a rag-tag coalition of Labour, SNP, and Liberal Democrat MPs, have threatened one or more judicial reviews if Johnson decides to prorogue. They may have limited success though.

Dr Sam Fowles, a London-based constitutional law expert and academic, has suggested that while it might be entirely possible and even correct for the courts to review the advice which the Prime Minister presents to the monarch when requesting that she prorogue parliament, it is a beast of an entirely different nature for them to review the Crown’s actions thereafter. The advice and the action are as distinct as they are separate, and Law Lords caught between the rock that is parliament and the hard place that is public opinion might well choose to make such a nuanced distinction.

In any event, it will be interesting to see if Downing Street’s newest resident is tempted to take a stroll down the Strand to visit Australia’s man in London any time soon, or perhaps a meander over to Canada House, just a stone’s throw from his new flat-above-the-office, if only to borrow a small cup of legal advice.

The Commonwealth certainly has experience with the proroguing of parliaments under the guise of political expediency, and a wise man is never shy when it comes to seeking the advice of his oldest friends.

Craig Buchanan is a Perth political staffer and a PhD candidate at the University of Western Australia.

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