The UK Government’s announcement of its intention to invite the Queen to prorogue Parliament in the second sitting week in September (week of 9 September) had been expected for some time.  Rather more unexpected – at least in some quarters – was the Prime Minister’s request that the prorogation run until 14 October. The next EU Council meeting, potentially the last chance for the UK and EU to agree on a replacement for the current Withdrawal Agreement and prevent a no-deal Brexit ahead of the 31 October deadline, is scheduled to take place on 17 and 18 October.

Prorogation is not itself unusual, signalling the formal end of a parliamentary session and bringing parliamentary business to an end until the beginning of a new session, marked by the Queen’s speech.  Formally, prorogation is a matter for the Queen but she invariably acts on the advice of her Prime Minister and it would have been unprecedented in modern times for the monarch to decline the Prime Minister’s request.  The consequence is that Parliament has no constitutional authority, during the prorogation, to make laws or to hold debates.

As with everything Brexit-related, context is all.  While prorogation is ordinarily uncontroversial, this suspension of Parliament significantly reduces the number of parliamentary sitting days available prior to 31 October, limiting the potential for parliamentary action against a no-deal Brexit.  It remains to be seen how MPs respond during next week’s sitting of Parliament, including whether that response includes a vote of no confidence in the Government.  It also remains to be seen whether the Court of Session judicial review being pursued by a number of MPs in an attempt to prevent prorogation will now go ahead on 6 September as planned, whether it will be expedited or indeed, abandoned.

House of Commons Speaker John Bercow called the Government’s plans a “constitutional outrage” and there has been talk of forming an ‘alternative parliament’ in the case of prorogation. However, while such a step could certainly have some symbolic impact, and provide a platform for debate, an alternative parliament would have no ability to enact laws or remove the Government from office. Any such actions will therefore have to be taken next week while Parliament is still in session.

Charles Livingstone, partner and expert in constitutional matters at Brodies.

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