As I sit and watch the turmoil at Westminster on the morning (afternoon in London) that Liz Truss announced her resignation; the morning that the 1922 Committee of Conservative backbenchers scramble to find a leader in a week’s time; a seemingly firm date of October 31 for a budget statement from a recently appointed Chancellor of the Exchequer; and cries for an election, there seems to be no way forward that does not continue the chaos. But there just may be a way to calm the waters somewhat. A proper and timely use of prorogation.
Prorogation, where one session of Parliament ends and a new session is prepared for, has received much negative press and commentary in the last few years, in the UK and in Canada. It has been seen as a way for a Prime Minister and a government to avoid facing Parliament when there was an imminent need for a decision of Parliament. But there are times when prorogation is appropriate. In most cases it is used when a parliamentary session has effectively exhausted the government’s agenda and there is a belief that the government needs to set out the next stages of its “new” agenda for the following session. In some countries this is effectively set as an annual or biannual process, in others it is discretionary. In either case, there is also room for the Prime Minister to ask for the King to prorogue Parliament as a necessary re-set button, either when a new King’s Speech is required to address an emergency, or to set out a new way forward for the government in light of changed circumstances. Sometimes, such pauses are just necessary to stop, rethink, plan and explain a way forward. The present circumstances would, I suggest, be such a cas, although some consideration would have to be given to ensuring that legislation that meets the revised agenda, or to meet urgent needs is carried forward in the next session.
The way forward would be for the Conservative party to choose a leader, have the King appoint them as Prime Minster, then have that person request that Parliament be prorogued for a couple of weeks to allow them to put a cabinet together, prepare an agenda, and then to have that agenda presented to Parliament through a King’s Speech. There would then follow debate and a vote of the House of Commons in support of the Speech or else defeat and an election. This process would allow the new Prime Minister to gather their thoughts, form a cabinet with appropriate deliberation, and present a coherent plan to Parliament to be aired and discussed before specific actions are taken. It would also result in the constitutional legitimacy that the House of Commons can provide by voting on the King’s Speech.
No doubt there will be those who will argue that this is merely a political tactic and an attempt to govern without facing Parliament. Or else they will claim it is a way to avoid addressing the urgent needs of the country in difficult economic and international times. Surely, a short pause for a new Prime Minister and their cabinet to work their way through the issues, consult with the cabinet, the caucus, the public service, experts and concerned parties, is better than trying to address the issues piecemeal and in short soundbites amid the clamouring from all directions.
For those who argue that there has been a promise to deliver a much need economic update or mini-budget on or before October 31, otherwise the country and the economy will lose the confidence of the international community and the public, one need only look at the rushed and ill considered economic policies made by Liz Truss without fully thinking them through. By setting a timeline that would result in a Prime Minister being chosen by next Friday and expecting such a major economic statement the following Monday, the scene is set for history to repeat itself. While the country and the economic world need an indication of how the UK proposes to address the serious issues of inflation, income security and energy sustainability, the new Prime Minister and Chancellor will undoubtedly be granted the time necessary to put together a considered and responsive budget. It is also more likely that the public and international markets will accept and understand the position of the budget if it is set within the context of an overall government agenda laid out in a King’s Speech. Calm and measured is often what is needed, not bold and reckless – just to meet an artificial deadline set by predecessors.
There are, and will continue to be, those who argue that an election is needed and that whoever is chosen as Prime Minister will lack any mandate to govern. While it may be true that the Prime Minister and their government will not have faced the electorate as such, the Westminster system of government is not one that works in such a straight line. The question of legitimacy and capacity to govern is one that is based on parliamentary support and confidence, with the public having the ability to judge what has occurred in the previous Parliament, as much as looking forward to the next. The Prime Minister and cabinet emerge from the various members of the House of Commons. It is the Commons, as a collection of elected representatives, that determines who is best able to govern. The Commons, by its votes on major proposals and legislation demonstrates confidence in the government and continually tests the government as it delivers on its proposed agenda and faces events that arise during the life of the Parliament. Although the most visible test of confidence comes in the form of a straight-up motion of non-confidence, votes on major government initiatives can also demonstrate confidence. The Commons is given the opportunity to discuss the proposed agenda through votes on, among other matters, the King’s Speech and budgetary matters It is the Commons, as representatives, not the public, that decides these issues during the life of a Parliament. We elect Parliaments (members of the House of Commons) not governments.
Immediately following an election, we look to the make-up of Parliament to determine who is likely to be called on as Prime Minister to form a government. It may be the existing Prime Minister, who had the confidence of the previous House of Commons, or it may be a new Prime Minister. If a new Prime Minister, they may be given a slightly longer period of time to form a government and prepare a King’s Speech to open the new Parliament. It is in that Parliament that the new Prime Minister is tested and secures the legitimacy to govern. It is at this time, and through this mechanism, that the new Prime Minister sets out their agenda and seeks support of the government’s mandate. Although a bit more traumatic, and possibly chaotic, sometimes it is necessary to choose a new Prime Minister during the course of a sitting Parliament. In such circumstances, it is arguably only right that they have the same opportunity as a Prime Minister appointed following an election to choose their cabinet from members of the House of Commons, set their own course of action in the circumstances, and to present them to and have them tested in Parliament, in the same manner.
For comparison, when dissolution occurs, Parliament ends for the length of the election and the time to put a government together and prepare a King’s Speech and for the Prime Minister to meet Parliament. This can take longer when there is a change of Prime Minister and there is a question of who should be called on to take on that role. There is no parliamentary business, budget or focussed parliamentary debate during this time. Although Parliament ceases to exist during this time, the previous Prime Minister and government continue to govern, albeit in a reduced capacity. In the present circumstances, if the Prime Minister has resigned, another person would still need to be called on to be Prime Minister, thus leading to a different type of constitutional “crisis”. It is also noted that a dissolution is considerably longer than a prorogation, which suspends Parliament for a shorter, defined period, and allows Parliament to be recalled to consider a new Agenda, or at least to address enough of the issues required to provide the degree of stability that might be required to cover the dissolution and election period.
Elections are not the only safety valve in a Westminster democracy. Prorogation as a reset can provide a similar respite when necessary.
Many events occur during the life of a Parliament which the public looks to the Parliament and the government to resolve. Economic challenges, wars, international crises, natural disasters and political change. Over the course of five years, the economic, international and political landscapes change. Political fortunes, membership and leadership of the various parties and caucus also change. When such changes occur the Parliament that was elected is required to change with them. In some such cases, the government through the testing of Parliament requires a reset. In the present circumstances, a new Prime Minister taking a short pause, preparing an agenda and seeking a new mandate through the elected House of Commons, could provide the stability, even if temporary, that the UK needs. Whether Parliament supports the new Prime Minister, the government and the direction proposed in the King’s Speech, or whether Parliament believes it is time for the electorate to decide, is a decision for the House of Commons. Whether they have made the right decision will ultimately be decided by the electorate.
The present situation is like the driver who tries to fix the engine of a moving car while keeping the car on the road at the same time. It’s just better to pull the car to the side of the road, fix the car, read the map, and then get back on the road.
Steven Chaplin, Adjunct Professor Common Law and Fellow uOttawa Public Law Centre
This blog post was originally published on the UK Constitutional Law Blog. The original post is available here:
S. Chaplin, ‘There’s a Time and Place for Prorogation—and this is it’, U.K. Const. L. Blog (25th October 2022) https://ukconstitutionallaw.org/2022/10/25/steven-chaplin-theres-a-time-and-place-for-prorogation-and-this-is-it/