Tory leadership hopeful Boris Johnson has refused to rule out an early prorogation of parliament to push through a no-deal Brexit – but the drastic gesture is by no means simple.
Early prorogation was recently suggested by Dominic Raab when he was still in the leadership race, as a way to break the impasse of a parliament that has both ruled out a no-deal Brexit and refuses to pass Theresa May’s Withdrawal Bill.
Since then, Boris Johnson has repeatedly refused to rule out using this function to stifle parliament if he became prime minister.
But advice from constitutional experts suggests that it’s not the catch-all free pass that Johnson may think it is, and in fact it raises as many questions as it answers.
The speaker of the house, John Bercow, whose role includes formally opening and closing of parliament during the normal agreed prorogation of sessions, has slapped down the suggestion, saying: “Parliament will not be evacuated from the centre stage of the decision-making process on this important matter. That’s simply not going to happen.”
But the decision to prorogue is the Queen’s, and according to Sam Fowles, blogging for the UK Constitutional Law Association, it would create a constitutional crisis if Bercow defied the Queen’s permission to prorogue.
In any case, the likelihood of the Queen even assenting to prorogation is in question for several reasons.
“Such a suggestion rightly attracted widespread criticism, because of its undemocratic nature, and because it risks dragging the Queen into politics,” say constitutional academics Robert Hazell and Meg Russell of University College London (UCL).
They also argue that the prime minister “can only give advice which is binding on the monarch if he commands the confidence of parliament”.
This is a problem for whichever leadership hopeful is selected by Conservative party leaders, as with a majority of just three MPs it is not at all certain that they’ll be able to command the confidence of parliament.
MORE: Next Tory leader might not become PM, say constitutional experts“If the request for prorogation is to dodge an impending vote of no confidence, then by definition that confidence is not assured,” said profs Hazell and Russell. In this case, the Queen could basically send Johnson away with a flea in his ear.
Making life easier for Johnson in this situation is the fact that prorogation comes under a class of power that is generally exempt from judicial review.
But Fowles outlined a couple of ways it could be argued that such a request could still be reviewed.
Assuming the new prime minister was riding on a wave of support,he is still obliged to act in good faith – and this could be grounds for a judicial review of prorogation.
“Advising the Queen to prorogue parliament so to prevent it from frustrating the prime minister’s agenda cannot possibly be considered a good faith exercise of the power,” argued Fowles.
In the meantime, prorogation takes time – and parliament could, in the meantime, pass a motion for a humble address to the Queen saying they oppose it.
Even so, prorogation is “close to political suicide,” said Hazell and Russell. “The most powerful arguments against prorogation are political. Any prime minister will need the support of parliament for the conduct of government business.”