Brexit and prorogation: constitutional outrage or parliamentary sovereignty?

Shortly before the announcement setting out a parliamentary prorogation timetable to pave the way for a Queen’s Speech on 14 October, the Commons Speaker John Bercow commented that an attempt to prorogue parliament “…represents a constitutional outrage”.

In this context, a three-year, drawn-out Brexit process which has sought to enhance Parliament’s sovereignty – and throughout which Parliament has been given major opportunities to amend or reject the government’s plans – appears to conflict with the Speaker’s observations.

Throughout the intense Brexit debates of 2016-2019 – including the EU Referendum campaign, through to triggering Article 50, the subsequent Miller judgement, the debate on the government’s EU (Withdrawal) Act 2018 and the proroguing of Parliament preceding ‘Brexit day’ – the doctrine of parliamentary sovereignty has been used to both defend and critique Brexit strategies and the government’s withdrawal legislation.

It is often forgotten however that the essence of the ‘Brexit’ process expresses that after 45 years membership of the EU, the UK’s withdrawal (if achieved) will mean Parliament regaining from the EU its sovereignty over UK decision making.

The mechanisms of negotiating that withdrawal process – through parliamentary votes, scheduling of ongoing debates and legislation – has reinvigorated, not denied, the process of Parliament in determining its sovereignty.

Given the announced prorogation period, it seems far from “blindingly obvious”, as John Bercow assumes, that Parliament would be stopped from debating Brexit, nor is it inhibited in its duty in shaping the course of the process for the country.

To the contrary, Parliament occupies centre stage. It has done and will continue to do so. The debate requires some balance. The political notion that prorogation would enable a no deal Brexit with the threat of MPs left unable to seek opportunities to debate that process is an inaccurate description of events.

In my new book, The British Constitution Resettled, I argue that Parliament’s sovereignty had grown unsettled since 1973 when EU-level decision making over substantive policy areas was incorporated into the UK constitution.

It has diminished the historical precedents of government by consent in which the ultimate decision-making power over political decisions was previously exercised by the government, within Parliament, on behalf of voters.

Parliament’s place since the EU referendum in June 2016 constitutes an enhanced, new constitutional resettlement – a realignment of Parliament with the historical precedent of consent and its sovereignty.

Since the referendum of June 2016, Parliament has taken several significant steps to resettle its enhanced powers, particularly in relation to the Prime Minister’s negotiated withdrawal agreement, including:

  • securing a ‘meaningful vote’ for MPs;
  • voting to reject (three times) the Prime Minister’s agreement;
  • MPs tabling motions, and thus shaping the future direction;
  • Parliament holding the government in contempt and protecting the ‘will of Parliament’;
  • MPs then twice requesting a delay of Article 50; and
  • Parliament then, by votes, preventing a ‘no deal Brexit’ under May’s specific terms and on the basis of her then agreement (albeit that is now differently framed under Johnson’s government).

Those several developments on the agreement suggest an enhanced, resettled role for Parliament in determining its sovereignty.

Parliament itself legislated for the referendum through the EU Referendum Act 2015. The House of Commons then voted the Bill through by 544 to 53 votes at second reading (a ratio of six to one in the Commons), with only the SNP voting against.

At a fundamental level, electors on 23 June 2016 directly tasked Parliament to exercise its ultimate decision-making powers to implement the majority decision (by 17.4 million Leave to 16.1 million Remain) to ‘Leave the EU’.

The House of Commons also passed the formal European Union (Notification of Withdrawal) Act 2017, formally affirming the triggering of Article 50, by 498 to 114 votes at second reading, having being asked by the Supreme Court to take the initiative to do so.

The Miller [2017] judgement in the Supreme Court made Parliament itself the single most fundamental and politically legitimate authority to trigger the UK government’s proposed withdrawal negotiations with the EU.

My book illustrates that MPs were not only seriously active but effective in shaping the key withdrawal legislation, namely the European Union (Withdrawal) Act 2018, voting in favour of that Act at its second reading by 326 votes to 290.

With that legislation having been both passed as well as amended in significant areas – through the force of MPs’ with a majority crucially negotiating and voting for changes – the current resettlement therefore puts Parliament centre-stage.

With a prime ministerial request for prorogation now granted, it is simply not the case that Parliament will not have had the opportunity (past or current) to amend or reject the government’s withdrawal plans.

This is evident from May’s withdrawal agreement and the ongoing circumstances of the Brexit process to date. Moreover, both past Article 50 extensions during Theresa May’s administration derived from Parliament – on the first occasion, by an MP-initiated motion, on the second occasion by MP-initiated legislation.

Many serious attempts have already been made by Parliament to take those emboldened steps to reject or amend the government’s proposals, including stopping a no deal Brexit.

MPs engaged in the fascinating indicative votes exercise(s) which reached no real, formalised outcome. MPs also voted (shortly before the summer recess) against an attempt to seize control of the parliamentary agenda as part of an opportunity to table legislation to prevent the UK leaving without any agreement on the 31 October deadline.

Remember, the Commons still awaits a potential Labour-led vote of no confidence.

Certainly, proroguing Parliament is a prerogative power to be exercised by the Queen but on the advice of the sitting Prime Minister. But that does not strictly mean Parliament has been bypassed.

Furthermore, it would be a worse category of constitutional breakdown if the Parliament itself, rather than the government of the day, claimed to set out its agenda in the parliamentary timetable. The govern-ment would in practice no longer govern.

Or, would it not be even more paradoxical should the English or Scottish courts seek to intervene in the process through applications made by those who complain Parliament is being bypassed – thereby bypassing the role of Parliament in making political decisions in the EU withdrawal process?

The suggested prorogation timetable set by the government is similar to previous year’s timetables for standard conference recesses in the autumn. In that sense, certainly, there has been a prime ministerial request to prorogue but MPs have had numerous and significant opportunities to debate, amend or reject government plans, even bringing forward their own MP-initiated legislation.

Any keen observers of Parliament would recognise that allowing the government to suspend Parliament no earlier than Monday 9 September and no later than Thursday 12 September, until Monday 14 October, is pretty much (plus five days) the regular conference recess period.

However, given the political division that exists, it might understandably not be referred to as ‘business as usual’.

Dr Jim McConalogue is the author of ‘The British Constitution Resettled: Parliamentary Sovereignty Before and After Brexit’ (Palgrave Macmillan).

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

View all analyses
x

Subscribe to our fortnightly newsletter

Get a round-up of The UK in a Changing Europe’s latest analysis pieces, videos, explainers, podcasts, reports, events, infographics and more, written by the organisation’s director Anand Menon. PS his mum says it’s "quite good".




Sign up to our newsletter





View our latest newsletter