To Prorogue or Not: An Implied Constitutional Convention to End a ‘Constitutional Outrage’

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—Theodore Konstadinides, Professor of Law, University of Essex, and Charilaos Nikolaidis, Lecturer in Law, University of Essex

What would happen if the Queen decided not to give her assent to a bill properly passed by the Houses of Parliament? The answer is an unstable and dangerous situation – a constitutional confrontation or outrage. We are less inclined to use the term ‘constitutional crisis’[1] since there is no ultimate standard that can be used as an indicator that the UK has entered into such a crisis. And yet one may reasonably rush to identify the elements of a ‘constitutional crisis’ to tell the current story as a legal challenge to stop the Prime Minister (PM) from proroguing Parliament is being launched in Edinburgh, Belfast, and London high courts.[2]

To carry on from the example that opens this short analysis, the norm that would prevent a ‘constitutional crisis’ rests in the political tradition, or, to put it in formal terms, the ‘constitutional convention’, that the Monarch will not refuse to give her assent to any such bill. Now let us think of a bill which has not been approved by the House of Commons and goes straight from the House of Lords to receive royal assent. In that ‘unthinkable’ scenario, the Monarch would have to refuse giving her assent. The point to be made here is that the Queen does have a choice in performing her prerogative powers. The reason one may come to think that the Queen will always agree to what is formally presented to her in the Parliamentary process is that such a process is properly followed.

But ‘unthinkable’ times call for ‘unthinkable’ reactions.

There has been a lot of talk by prominent political actors, including the speaker of the House of Commons, of the ‘constitutional outrage’[3] caused by the actions of PM Boris Johnson who asked for a prolonged prorogation of Parliament, therefore ending all current legislation under discussion ahead of the scheduled Brexit day of 31 October 2019 and denying sufficient time for proper parliamentary consideration of the UK’s withdrawal from the EU. Since Parliament is yet to enact the necessary statutory provisions specifically authorising the Government to allow the UK to cease its EU membership on the basis of a withdrawal agreement[4], the term ‘crisis’ naturally comes to mind following the PM’s advice to the Queen to prorogue Parliament at this moment. This is because the UK Constitution mandates that each institution must display due respect towards the powers and duties of the other elements of government while the system of government as a whole needs to uphold the principles of the constitution. We, therefore, need to consider what the UK Constitution permits in these circumstances, where Parliament is in effect prevented from carrying out its duties in holding the government into account prior to Brexit day. Does the constitutional system provide a solution for the current ‘constitutional outrage’? 

Rebuffing a democratic norm is not in itself sufficient to transform a ‘constitutional outrage’ into a ‘constitutional crisis’ (i.e. a political dispute that cannot be resolved within the constitutional framework in place). The question we need to ask is whether or not there is anything to prevent the Prime Minister from behaving in such a way. Where does the ‘constitutional outrage’ lie? Is it out of the reach of the current constitutional framework? As mentioned, a lot depends on whether or not there is a resolution mechanism within the constitutional system to end the confrontation between the different branches of government. What kind of solution can the UK Constitutional system provide to address the current situation?

One possible answer is that the principle of Parliamentary sovereignty itself should be seen as generating certain ‘implied’ constitutional conventions which have not been as widely discussed as others for the simple reason that they never had to be defended. If Parliament is indeed the supreme political institution in United Kingdom, one may fairly infer that the mechanism of prorogation should not be used to undermine the work of Parliament (e.g. to pass legislation that prevents leaving the EU without a deal) by the government. This is not written somewhere, constitutional conventions forming part of the unwritten constitution, but it is tantamount to following the logic that the Monarch being unelected should not put obstacles to the work of the elected Parliament by not assenting to the bills presented to her.

The implied constitutional convention that emerges from the above emanates from the principle of Parliamentary sovereignty itself but is also supported by historical practice: According to the House of Commons Library, for the last forty years, ‘prorogation has rarely lasted longer than two weeks’[5]. The suggestion of the PM to prolong the prorogation for more than a month essentially breaks with that practice and flies in the face of one of the most basic principles of the UK Constitution. This is despite the PM’s assurances that the plan is to ultimately bring forward a new legislative programme for Parliament to approve and that there would be sufficient time for MPs to debate the modalities of Brexit prior to the EU Summit on 17 October. The turning point in the UK’s constitutional history, in leaving the EU, serves to explain both the reason why the abovementioned implied constitutional convention is now broken by a government which wishes to avoid being accountable to Parliament during a most crucial period, but also why such a convention is important in the first place. This is the kind of resolution that the UK Constitutional system provides to address the current impasse and prevent turning ‘outrage’ to ‘crisis’.

Does that mean that the Queen had a right to intervene? Hardly, as the Monarch has to act on the advice of the Privy Council in proroguing Parliament. And she did. Was that advice itself a breach of a constitutional convention and, eventually, an affront to Parliamentary sovereignty? It sure was. Is there a constitutional outrage? Of course there is, one that pertains to the political constitution, not the legal one. Is there a constitutional crisis? That remains to be seen, as the political constitution, expressed through constitutional conventions in this case, is not legally binding to the government.

Having said that, the government is legally accountable to the courts. The PM must take into account the constitutional scope of the supervisory jurisdiction of the court to protect individuals’ legal rights[6] and uphold the rule of law where prorogation is used to undermine the work of Parliament. It is the courts that shall determine the limits of the lawful authority of the government to advise the Queen to prorogue Parliament prematurely. In other words, the power to advise the Queen to do so shall not be perceived as absolute and its exercise by the PM shall be declared ultra vires (and thus invalidated) when its effect is to undermine fundamental principles of the Constitution. This is particularly important for three reasons: first, because as already mentioned, the principle of parliamentary sovereignty establishes implicit limits to constitutional reform in the UK; second because the current prorogation carries the effect of obstructing MPs from performing key constitutional responsibilities to their constituents (i.e. control the terms on which the UK leaves the EU); third, because contrary to the wording of Article 50(1) TEU the UK will be seen to be withdrawing against ‘its own constitutional requirements’ (especially the principle of parliamentary sovereignty which is at the core of the UK’s constitutional arrangements). In short, the UK is in danger of defaulting both in domestic and EU law terms.[7]

It is therefore imperative, that the implied constitutional convention that the mechanism of prorogation should not be used to undermine the work of Parliament is given effect before the current outrage becomes a crisis. At this constitutional turning point, Parliament must be given the chance to sit and consider the UK’s EU withdrawal, as a matter of principle and irrespective of the actual outcome (the argument that Parliament has already failed on that front time and again should not be relevant, appealing as it might be[8]) and judges shall be given the time to enforce the law against ‘the Crown as executive’.[9] This is especially the case when the latter attempts to make the other branches subservient and impinges upon individual rights in plain daylight. As David Allen Green put it plainly in the Financial Times, the PM’s prorogation is nothing other than ‘constitutional cheating’ – one, however, that can result in a tragic circle.[10]

Suggested Citation: Theodore Konstadinides & Charilaos Nikolaidis, To Prorogue or Not: An Implied Constitutional Convention to End a ‘Constitutional Outrage’, Int’l J. Const. L. Blog, Sept. 1, 2019, at: http://www.iconnectblog.com/2019/08/to-prorogue-or-not:-an-implied-constitutional-convention-to-end-a-‘constitutional-outrage’

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[1] J Simson Caird. ‘Are we in a constitutional crisis in the UK or is this the UK constitution at work?’, LSE Brexit blog, 9 July 2019. https://blogs.lse.ac.uk/brexit/2019/07/09/long-read-are-we-in-a-constitutional-crisis-or-is-this-the-uk-constitution-at-work

[2] S Carrell and L O’Carroll, ‘Proroguing Parliament is unlawful abuse of power, court told’ Guardian, 29 August 2019. https://www.theguardian.com/politics/2019/aug/29/proroguing-parliament-is-unlawful-abuse-of-power-court-told

[3] BBC, https://www.bbc.com/news/uk-politics-49493632

[4] s. 13 of the European Union (Withdrawal) Act 2018

[5] House of Commons Library, Prorogation of Parliament: https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8589#fullreport

[6] See R (Unison) v Lord Chancellor [2017] UKSC 51 and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 with reference to the rule of law and access to justice.

[7] See e R (Miller) v Secretary of State for Exiting the EU [2017] UKSC  5; and Case 621/18 Wightman v Secretary of State for Exiting the EU [2018] ECLI:EU:C:2018:999

[8] For that argument, see V Bogdanor, ‘Parliament had failed on Brexit long before this prorogation’ Guardian,, 29 August 2019, https://www.theguardian.com/commentisfree/2019/aug/29/parliament-brexit-prorogue-mps-alternative-no-deal

[9] M v Home Office [1994] 1 AC 377, at 395

[10] D Allen Green, ‘Boris Johnson’s Brexit prorogation is constitutional cheating’, FT, 29 August 2019