The Queen and Prorogation

**This blog was first posted on LinkedIn on 29th August 2019**

There is much discussion about the decision of Boris Johnson to prorogue Parliament and what it means for the role of the monarchy. To prorogue Parliament means that one session of Parliament ends, and another begins when it meets again. While prorogued, Parliament does not sit, and by default all legislation that has not been granted royal assent is lost, and would need to start again in the next session. It’s basically like the close season in football.

One argument for the monarchy is that it possesses “reserve powers”: that in extremis, it can step in to prevent manifestly unconstitutional action. On the other hand, the monarchy is said to be “above politics”, and must always act on the advice of the government. This at the core of the debate about whether amongst the Queen could have refused Johnson’s request. As the response to it has shown (just see Lord Young’s resignation today), proroguing Parliament until 14th October is undoubtedly enormously controversial. Yet, the balance of opinion amongst constitutional lawyers is that the Queen acted correctly. I agree. A feature of the Queen’s reign has not to be seen to intervene in politics and allow politicans to decide matters. Constitutional developments such as the Fixed-term Parliaments Act and the Cabinet Manual have further reduced the political role of the monarchy.

Where the Queen can exercise influence (or more accurately her advisors) is before any Privy Council meeting. No 10 and Buckingham Palace are in regular contact, and it seems inconceivable that prorogation was not discussed between them before yesterday. In the summer, prorogation as an idea would have covered 31st October (when the UK is due to leave the EU). But such a proposal would have placed the Queen in an impossible position, and whatever she did would trigger a horrendous constitutional crisis.

So the choice of 14th October is interesting. It could be the result of restraint exercised by the Palace (it’s also avoids difficulties with the Northern Ireland (Executive Formation etc) Act 2019). But, as discretion is the watchword here, we may never know until historians get writing, and maybe not even then. It does mean that there is a small window of opportunity for those wanting to stop No Deal. John Bercow’s ruling in March that the ‘deal’ as struck by Theresa May could not again be voted on in the Commons no longer applies once the new session starts on the 14th October. Right now, the politics is clearly against a further vote on that deal, but it’s worth noting.

The point is that those tweeting #abolishthemomarchy need to be very careful what they wish for. Of course, this may be thought a distinctly odd way of going about things and that is a matter of legitimate debate, but knee-jerk reactions are unlikely to be the best response.

Photograph: Copyright House of Lords 2017 / Photography by Roger Harris. This image is subject to parliamentary copyright. www.parliament.uk

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