Jolyon Maugham on why the Government is desperate to continue the prorogation of Parliament, even if it loses.

First published in September 2019.

• Jolyon Maugham wrote and shared the following story on Twitter a few hours ago.
• It was turned into this article by our Editorial Team to be fully readable.

As matters stand, Parliament is due to return from the prorogation on 14 October 2019. It needs to, and for five days, because of the terms of the Northern Ireland (Executive Formation etc) Act.

Northern Ireland (Executive Formation etc) Act 2019. /

After those five days are up, the Government can suspend Parliament again for another 14 days, and before the Supreme Court it explicitly refused to rule out doing so (and I have good information it is planning to do exactly that.)

It will sit during those five days, of course, but the Government has a plan to stop it using them to do anything inconvenient.

But the Government has a problem if Parliament returns before the Queen’s Speech because it will take control of the business of the House again, and might do some slightly inconvenient stuff.

The obvious candidate is legislation that takes the power to prorogue away from the Government but this would require the Queen’s consent which may prove a bar too far.

Queen's consent /

The other candidate is an emergency Government. There is a revival of interest in this amongst senior MPs and a way may have been identified to try to replace The Charlatan with Jeremy Corbyn and then, if or when that doesn’t work, with a figure with more cross Party support.

The Good Law Project has commissioned legal advice on this from one of our leading constitutional law QCs which we will be publishing it early next week.

How does Government prevent this? Well, it sought to persuade the Supreme Court to allow it, even if it loses its appeal against the decision of Scotland’s highest court, to continue the suspension of Parliament but the Supreme Court seemed rather underwhelmed.

But I think – and this is my own speculation – that even if the Government loses and the prorogation is ruled unlawful so that Parliament can go back, the Government may just prorogue again.

We have looked at this point and, as we understand the law, there is no need for any notice to be given. The Queen seems to have taken the view that her role is a mechanistic one to follow the advice of the PM, so she wouldn’t stop a further prorogation.

And although the Courts can – and very probably would – rule a further prorogation before 14 October unlawful, that of itself does not stop that prorogation. A finding that it was unlawful is not much comfort when it still actually happened.

Hold on to your hats.🔷

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[This piece was first published as a Twitter thread and turned into the above article on 21 September 2019 with the purpose of reaching a larger audience. It has been minorly edited and corrected. | The author of the tweets writes in a personal capacity.]

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