Posts Tagged ‘parliament’

Prorogation: The Historical Case for Constitutional Innovation

Prorogation: The Historical Case for Constitutional Innovation

By Professor Jonathan Clark

This article was first published in Briefings for Brexit and we re-publish with their kind permission. Professor Jonathan Clark is a leading political and constitutional historian of early modern Britain.

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Should the prorogation of parliament be a possible course of action for a government? Is it an outrage against democracy and the constitution?  Rory Stewart threatens direct action, and Matt Hancock declares that such a thing “goes against everything those men who fought their way up those [D-Day] beaches died for.”  Jonathan Clark, a leading constitutional historian looks at the facts behind the hysteria:


What, exactly, can a government do by exercising the royal prerogative? Like many great constitutional issues, this one exists in a grey area, grey for historical reasons. It is partly a consequence of old and seldom resolved disagreements about where sovereignty resided, and, therefore, who or what commanded the prerogative.

In 1213 King John, in a weak position against his barons, tried to save himself by surrendering the sovereignty of England and becoming the feudal vassal of Pope Innocent III. It was many centuries before the Papacy gave up its claim (by prerogative, in effect) to depose monarchs it judged heretical; but even today some people look to multi-national organisations as guarantors of the moral conduct of the state, so overriding state sovereignty. The EU itself is run more by the prerogative of its Commission than by its Parliament. In the seventeenth century some theorists claimed that sovereignty resided in the person of the monarch; this was resisted by parliamentarians in civil war, but even after 1688 the royal prerogative, sometimes explicitly contested between Crown and Ministry, remained strong. It was transferred more than defined.

Another doctrine had long overlapped with that of monarchical sovereignty: that sovereignty lay with ‘the Crown in Parliament’, the King, Lords and Commons acting together. It was an attractive metaphor, but since the three were often locked in conflict it seldom offered clear answers about prerogative. In the nineteenth century the doctrine of ‘parliamentary sovereignty’ was developed: it flattered parliamentarians but its meaning evolved, first as the House of Lords was sidelined in 1911, then as the role of backbenchers was minimised through efficient whipping.

The alleged supremacy of the Commons was never defined in statute; it was merely assumed. In time, the Commons found itself ambiguously competing for sovereignty with other bodies. From 1973, membership of the EEC meant that European law took precedence over parliamentary statute, and the significance of this, hardly obvious at first, became ever more contentious as the body of EU legislation grew. In 1974 the National Union of Mineworkers destroyed the government of Edward Heath, and even today some people look to direct action in the streets as a legitimate expression of sovereignty.

From the 2010s a new practice caught politicians by surprise: the referendum. It reopens a question never settled in earlier centuries and still not exactly defined: does sovereignty reside with Parliament, or the People? There is clearly a case for representative democracy; but there is an equally honourable case for direct democracy. Neither guarantees happy outcomes, but there are no guarantees in life. The choice between them was easier if there were just two parties to the conflict. But the conflict over Brexit is a tripartite one: the executive v. the legislature v. the electorate.

The new ministry is likely to affirm its resolution to leave the EU on 31 October. Should it prevent the Commons from blocking the very step for which it has already legislated in the European Union (Withdrawal) Act? There are many means of doing so, and they raise the old question of prerogative. If a general election were produced by a successful motion of no confidence in the new ministry, the Fixed Term Parliament Act of 2011 provides that ‘the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister’: it could legally be a date after Brexit on 31 October. The Act also provides that ‘This Act does not affect Her Majesty’s power to prorogue Parliament.’ That power derives from the ancient notion of prerogative.

Recent legislation, then, confirms the long-used royal prerogative to determine the dates of sitting of Parliament. This has never been overset: in 1689, a draft of the Bill of Rights would have given Parliament the ability to sit until the end of its term, free from the threat of dissolution, but this provision was dropped from the Act.

Now, the Act of 2011 deliberately does not put Parliament in control. After its summer recess, Parliament need not be recalled until after 31 October. If attempts were made to frustrate such a timetable, Parliament could be prorogued.

None of these responses would be ‘unconstitutional’. They would be in accord with statute law, but applied in a situation that legislators could not foresee.

None would be ‘undemocratic’, for the point at issue is the clash between two sorts of democracy, representative and direct. Whatever the merits of these two, Parliament recognised the priority of the People in legislating for the referendum of 2016. Parliament’s claim to control prerogative depends also on public opinion, and support has ebbed away as Brexit has not been delivered.

Would these responses ‘involve the Queen in controversy’? The Queen is always surrounded by controversy (like all monarchs); she will be well used to that. No change in the function of the monarch would be involved. Indeed, she would (as under the terms of the Fixed Term Parliament Act) have no choice but to accept her Prime Minister’s advice. The buck still stops with the Prime Minister.

Are there precedents for a Prime Minister acting in ways that disregard Commons majorities? There are, though not exact. The most recent was Theresa May herself, who clung to office despite repeated defeats on a scale that would have led most of her predecessors to resign. Another is William Pitt the younger, chosen as Prime Minister by George III in December 1783 in order to exclude the unsavoury Charles James Fox. Pitt suffered repeated defeats in the Commons on motions asserting the unconstitutionality of his ministry and demanding that he quit, but the numbers voting against him steadily fell in the face of the king’s support. In March 1784 George dissolved Parliament by prerogative; with a tide of opinion running in Pitt’s favour he secured a majority of about 120; from 1789 he was increasingly hailed as the saviour of the nation from the threat of revolution. Yet he was denounced by revolutionaries everywhere: controversy is the essence of politics.

As to prorogation, the dates of sitting of Parliament were for centuries determined by the monarch, whose powers were eventually assumed by the executive. The courts never intervened. The Labour government of 1948 last used prorogation for tactical purposes against one House of Parliament, to frustrate the Lords’ attempt to hold up what became the Parliament Act of 1949. This is a precedent, though not exact, for its use in the case of Brexit.

The constitution, then, is partly a museum of questions never fully answered; partly a laboratory in which new drugs are developed to combat new diseases. It is never a set of unchanging truths, carved into tablets of stone (most of Magna Carta was repealed piecemeal, as society changed). The constitution is also a tool box, containing many resources for solving the fast-evolving problems that the country faces. As Speaker Bercow has insisted, precedents may help, but do not bind. The present situation is unprecedented. It may be that the solution will be unprecedented too.





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If you want blood ….

King John signing Magna Carta

Magna Carta presented to King John


I can still remember a hot sunny day as a schoolboy in a class in my school, a few hundred yards from the beach, where my teacher was rambling on about Magna Carta. I, and I’m sure my fellow classmates too, just wanted our old teacher to shut up, we wanted to get to the beach, we were waiting for the bell.

How wrong could I have been, to be so blasée about such a vital piece of our history as Magna Carta. Perhaps many of us feel the same way about an event that happened initially over eight hundred years ago, something that evolved to shape our society today and provided us for centuries with what was once a free and fair society. How dare we be so ungrateful for the actions of our ancestors.

It was only the fear of a bloody rebellion by the leading men and barons of England that led to the introduction of Magna Carta (Great Charter) on 15th June 1215 at Runnymede, a field by the Thames. An agreement hammered out between King John and the barons of England that placed a limitation on the power of the crown and a turning point in British constitutional history.


“What happened after the Magna Carta was issued? A few months after he had issued the charter, John persuaded the Pope to declare Magna Carta illegal because it interfered with the rights of the king. The barons would not accept this and a civil war broke out, in which most of the barons fought for Magna Carta against John”

I thought the above was particularly significant when you consider the Pope’s actions today and his support of the European Union and globalism generally.

Magna Carta lead to the adoption of Common Law and the formation of parliament. The first use of the term Parliament was in 1236 and it referred to the great council, up until then it had been an informal arrangement (see here).

Due to space constraints here, I can’t delve too deeply into this fascinating history. Parliament evolved as a meeting place for the the original stakeholders of Magna Carta: the Crown and the barons that originally negotiated the charter and the common people, that were increasingly empowered by the agreement. Today, as a result Parliament is a meeting place between the Crown, the Lords and the Commons.

It wasn’t until the 14th century that the Commons really rose to power, as detailed here. And there’s more, see this from

“That the Commons were acting at this time as equal partners with the Lords in making legislation is suggested by a written note on a Bill from that reign, which states that the Commons agreed to the Lords’ amendments to it. By the mid-15th century the Commons was in control of granting supply of money to the King and had gone from petitioners to full partners in the formation of statute, the highest law of the land.”

The important thing to remember is that Parliament was a product of Magna Carta, not vice versa: ‘the tail does not wag the dog.’

Parliament cannot or should not be able to change or alter our sovereign rights either under Magna Carta or Common Law without the consent of we the people, yet since the Common Market referendum of 5th June 1975, this is precisely what has happened.

I haven’t room here for an exhaustive list but here are a few examples, please feel free to add to them.

Since our agreement to join a Common Market in 1975, Parliament has morphed into the European Union, a full-on European superstate in the making, treaty by treaty, and none of these with the consent of we the people.

The imposition of Napoleonic law via EU membership, should not be possible without the consent of the people.

The European Arrest Warrant is a breach of habeas corpus, one of our most important rights under Common Law. This should not be possible without the consent of the people.

The suggestion that Sharia Law be introduced into our legal system, again, not without the consent of the people.

The most important point is however:

Since the Common Market referendum of 1975, we the people were never asked again, until Thursday, June 23rd, 2016, when we voted decisively to leave the European Union.

Our government likes to stress that the above referendum was not legally binding, but, in a country were we the people have ancient sovereign rights that are supposedly the law of the land; how could that referendum be anything other than legally binding?

After many decades, the 2016 Brexit referendum was the first time that we the people were given the chance to exercise our sovereign rights, of course it was legally binding.

The members of the House of Commons are meant to be our representatives, the executives of our Judiciary: could it be that for many decades they have been not fit for purpose, that they have been engaged in lies and subterfuge for their own ends?

It seems that our successive governments have been guilty of betraying the ancient rights of our land and its people. These rights were fought for by our ancestors, a gift from them that has given us our freedoms to this day.

How wrong I was as a schoolboy to dismiss this history as the ramblings of an old man and I’m sure many of us are just as guilty!

When the governments of America, Australia, New Zealand and other ex-colonies formed their own governments and legal systems they looked to Magna Carta as a foundation. Perhaps then, this following quote is particularly pertinent:

“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Thomas Jefferson

Perhaps it’s time to ask those politicians and bureaucrats within our very unfit government who would like to keep us illegally tied to the European Union – if they want blood?

It wouldn’t be for the first time, it is nothing new, the precedent was set a long time ago.   


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