Stefan Theil: Unconstitutional Prorogation – UK Constitutional Law Association

Posted April 3rd, 2019 in brexit, constitutional law, Crown, news, parliament, prerogative powers by sally

‘Parliament voted on the evening of 1 April in a series of indicative votes to determine what, if any, alternative plan for withdrawal from the European Union could command the support of the House of Commons: all plans put forward again failed to command a majority. In a recent intervention, John Finnis has suggested that the government should prorogue Parliament until after 12 April in order to terminate the current parliamentary debate. Mark Elliott has offered a critique of the broader implications of this argument, namely the claim that such a course of action would be ‘(…) wholly legitimate as a matter of constitutional principle.’ Elliott concludes that parliamentary control of the process is entirely legitimate and in keeping with the British constitution. This piece adds to this analysis by elaborating why the prorogation Finnis advocates under these specific circumstances would be, as Elliott summarily puts it, ‘(…) an argument for unconstitutional action on the part of the Government.’ The piece develops a twofold argument: first, that ministerial advice tendered to seek a prorogation of Parliament under these circumstances is unconstitutional and that the Monarch should disregard it as a matter of constitutional convention; and second that holding otherwise would in effect grant the Prime Minister an unqualified veto over parliamentary business, leaving the government in an unconscionable position of power over the sovereign Parliament. Such an outcome would be fundamentally at odds with British parliamentary democracy, especially principles of democracy and representative and responsible government.’

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UK Constitutional Law Association, 3rd April 2019

Source: ukconstitutionallaw.org