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6 September 2019updated 23 Jul 2021 9:00am

Is John Bercow right to call this a “constitutional outrage”?

By Ailbhe Rea

The Speaker of the Commons John Bercow has wasted no time in condemning Boris Johnson’s plan to prorogue Parliament and hold a Queen’s speech on 14 October.

In a statement this morning, Bercow writes: “I have had no contact from the Government, but if the reports that it is seeking to prorogue Parliament are confirmed, this move represents a constitutional outrage. However it is dressed up it is blindingly obvious that the purpose of prorogation now would be to stop Parliament debating Brexit and performing its duty.”

Is he right? Prorogation was much discussed before the parliamentary recess as a hugely serious and potentially undemocratic – even unconstitutional – means of preventing parliament from exercising its right to debate, scrutinise and bring in legislation to prevent No Deal.  The argument then was that if the government had to prorogue Parliament to get its will, it would raise serious doubts about whether that government still commanded the confidence of the House of Commons – and therefore whether it could legitimately continue to govern.

But what was discussed at that point is not exactly what the Johnson government will implement: instead, as Johnson himself was able to point out in a statement to Sky News this morning, Parliament will still be able to discuss and scrutinise the government’s Brexit plans, between 3 and 11 September and then again between 14 and 31 October.

In practice, this is only one week less than MPs would have had before this move: conference recess was already due to take place from 11 September until early October. In terms of optics, it certainly doesn’t look as serious, as undemocratic or as constitutionally outrageous as it was described months back, although it is worth pointing out that propagations rarely last more than two weeks.

As for the legal legitimacy of Johnson’s move, that is already set to be thrashed out in the Scottish courts in the next few weeks.  A cross-party group of more than 70 MPs and peers is now considering seeking an interim interdict (similar to an injunction in England and Wales) in the Court of Session in Edinburgh to block it, with a hearing already scheduled for September 6.

The Johnson government, meanwhile, is making the excuse that prorogation is simply necessary in order to bring in the major new legislation of a new administration.  ‘This is about the NHS and violent crime, not Brexit, and, the courts have no locus to interfere in a bog standard Queen’s Speech process’, a Downing Street source has said.

The immediate impact of this announcement on MPs hoping to prevent No Deal is that they no longer have the option of suspending the conference recess and buying themselves more time: in practice, prorogation robs them of over a month. Whereas even yesterday opponents of No Deal were considering laying off their plans for a few weeks until they saw whether a deal with the E.U. is likely, they now will feel they need to move the second parliament returns next week.

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