It is crucial in the present situation, faced with an attempted coup, to understand why Johnson can’t prorogue Parliament unless MPs let him. This reality is why the present talk of squeezing other legislation into the time before prorogation, that is to accept prorogation, is dangerous and to accept Johnson’s coup. Parliament can prevent itself being prorogued and therefore give itself all the time it needs.
The reason for this is that the fundamental principle of the British constitution, as Chris Daw QC reminds us: ‘The first thing they teach in law school – The Queen-in-Parliament is sovereign. Not the Government, not the Prime Minister.’ Because Parliament is sovereign, one Parliament cannot bind another, no precedent can bind Parliament, there is no constitution which can overrule or bind Parliament, and neither can the Prime Minister bind Parliament.
If there is a majority in the House of Commons against prorogation, due to a combination of all opposition parties and some Tories, then the House of Commons can pass legislation simply stating Parliament cannot be prorogued before a certain date. This can be embodied in an extremely short Bill – a few sentences or even one sentence. If a majority in the House of Commons exists for this a procedural way will be found to embody it in legislation – Parliament is supreme and if necessary can overturn any precedent trying to block it.
The House of Lords has a clear and large majority against prorogation. It can therefore block any procedural move to stop the Commons legislation being passed. Furthermore, an attempt by the unelected House of Lords to block a measure passed by the elected House of Commons, in order to ensure the suspension of Parliament, would do considerable political damage to a Conservative Party attempting it.
The only way an Act passed by the two Houses of Parliament would not become law is if it was denied the royal assent by the Queen. No refusal of the Royal Assent to a Bill passed by both Houses of Parliament has occurred since 1707. If the Queen did decline to sign a Bill approved by both Houses it could only be on the advice of the Prime Minister or his refusing to advise her to sign it. But in the present circumstances, in order to safeguard the Monarchy, the Queen might not agree to rebuff a Bill approved by both Houses of Parliament, whatever the advice of the Prime Minister. Moreover, if the Prime Minister advised the Queen not to assent to a Bill passed by both House of Parliament, or gave no recommendation if required, this would in the present situation almost certainly lead to a vote of No Confidence in the government and the replacement of the Prime Minister by someone who would advise the Queen to sign – in which case she would sign it if she had not done so previously.
In short, there is no way that Johnson can prevent the House of Commons overturning its attempted prorogation unless Parliament itself is either confused or cowardly.
It is necessary to be crystal clear. The fate of the House of Commons is in its own hands, not that of Johnson. Talk of alternative Parliaments, of MPs occupying Parliament etc is besides the point and to accept Johnson’s coup. All MPs have to do is something much more important – vote there will be no prorogation of Parliament and there will be no prorogation and Johnson’s coup will be blocked.
The demonstrations taking place throughout the country are extremely important. But their demand must be clear. They must demand that MPs pass a law refusing to accept prorogation in the present circumstances. If this is done Johnson’s coup will fail.
It is certainly necessary to pass legislation preventing a No Deal Brexit. But Parliament can also prevent its own prorogation, stopping Johnson in his tracks and giving Parliament all the time it needs to debate.