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Boris Johnson’s Parliament shutdown isn’t unconstitutional

30 August 2019

3:27 PM

30 August 2019

3:27 PM

Has Boris Johnson done a Charles I and shut down Parliament indefinitely? The headlines this week might lead you to think so. ‘Uproar as Boris Johnson shuts down parliament to protect Brexit plan’, reported the FT. John Bercow called it ‘a constitutional outrage’. ‘It’s tantamount to a coup against Parliament,’ raged former attorney general Dominic Grieve. Nicola Sturgeon called it ‘a dictatorship’.

Yet the reality hardly lives up to the rhetoric. These are the facts: Parliament will return from summer recess on 3 September as planned. Parliament will not sit from mid-September to early October during the three-week party conference season – also as planned and as happens every year.

What has changed is that following the unusually long parliamentary session under Theresa May, Boris Johnson has decided to start his premiership with a new parliamentary session. This means the prorogation of Parliament and a Queen’s Speech to lay out his new legislative agenda, which will take place after the planned party conference recess. The Government’s line is that only three days of planned parliamentary time will be lost as a result of this plan, between 8 October and 10 October.

So does this loss of time for MPs to debate Brexit make the PM’s prorogation strategy unconstitutional?

It is clear that the prorogation of Parliament is in itself legal. As professors David Howarth and Catherine Barnard have made clear, “The only clear limits on the length of a prorogation are, first, a statute of 1694 requiring Parliament to be held at least once every three years, and second, the practical consideration that much of government spending and several important taxes are authorised one year at a time.”

Nor does the prorogation breach any written, non-statutory constitutional guidance. But does the prorogation breach constitutional norms? These are not easy to pin down, given that they are unwritten. They are also typically unspoken. Discussions of them typically only emerge at moments of crisis, which is when their interpretation is most prone to being contested.

Yet in this case, the constitutional norms are actually relatively clear cut. It is quite normal and uncontroversial for a Parliament to be divided up into several sessions, typically one a year. May’s epic session of nearly two-and-a-half years is very much the exception; a new session represents a return to constitutional normality. And a recess of a few days prior to the beginning of a new session is also the norm.

But there is one respect in which the prorogation is, in professor Bogdanor’s words, “abnormal” and which involves some sleight of hand on the Government’s part. The three-week break for conference season was to be a recess. Recesses are controlled by Parliament itself: it could shorten or cancel the planned recess if it wished. There has been no indication that there was any intention on the part of Parliament to cancel the planned conference season recess, but nevertheless it could have chosen to do so at any point. But by suspending Parliament “no earlier than Monday 9 September and no later than Thursday 12 September” until 14 October, the Government has removed that option from Parliament. Parliament will be prorogued for up to 34 days, which is indeed abnormal.

But does ‘abnormal’ equal ‘unconstitutional’? There is no clear-cut answer to this. Time spans are – somewhat obviously – a matter of degree rather than binary. Thirty-four days is not a long enough period to be considered a clear-cut breach of constitutional norms, but nor is it comfortably within them. The Government is taking advantage of the timing of conference season to justify dancing on the edge of acceptability.

The length and timing of the proroguing of Parliament has led to accusations this is a thinly-disguised attempt to try and prevent Parliament blocking a no-deal Brexit. The PM has said this isn’t the case. Only Johnson himself knows the truth. But the suspicion that he is doing it for this reason is understandable.

But when it comes to judging whether something is, or isn’t unconstitutional, motive doesn’t matter. The fact that an action is one of political expediency does not make it unconstitutional. After all, acts of political expediency take place all the time. A constitution that prevents all acts of political calculation cannot exist.

So it is clear that the prorogation is pretty much entirely constitutional. Only the length of the prorogation stretches the boundaries of constitutional norms, but without clearly overstepping them. And while Boris Johnson’s critics have reacted furiously to the plan, suggesting the PM has become dictatorial is well wide of the mark.

After all, Parliament still has ample opportunity to remove the Government by constitutional means. The Opposition can table a motion of no-confidence at any time that Parliament is sitting; it has a chance to do just this on Tuesday. It also retains the statutory right to form an alternative government from the existing Parliament. Prorogation does not change that. That’s a funny kind of dictatorship.

Dr Anna Bailey is an author at Briefings for Brexit


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