As Brexit aficionados would know, the UK’s Supreme Court is currently reviewing whether Prime Minister Boris Johnson’s proroguing of Parliament is or is not legal. Johnson essentially sent the House of Commons on a five-week forced vacation during which time they cannot sit or hold committee meetings.
Of course, it’s perfectly obvious in the abstract that this means MPs cannot pass any legislation, or perform vital investigative and oversight functions, holding government ministers accountable for their policies, actions, and statements. Such oversight includes determining whether government are faithfully obeying and implementing laws which Parliament passed, or are relaying accurate information to the public on issues about which the public are rightfully concerned and have a need to know.
However, at least one Supreme Court member, Baroness Hale, has expressed interest in seeing real world examples of what Parliament are being prevented from doing as a result of being prorogued. Hence this blog post, hastily written, but providing two major examples and one minor example.
On the last day the House of Commons sat before being prorogued (September 10), Dr. Sarah Wollaston — who chairs both the Liaison and Health Committees — noted that by proroguing Parliament, Johnson neatly sidestepped appearing before the former, which he was scheduled to do the very next day (September 11).
I’m appalled. The prime minister is running away from scrutiny. We had a series of reassurances from him over the summer that he would come to the liaison committee – initially before parliament came back, so on the first Monday. He then moved that date to this coming Wednesday and we very specifically queried with him about the position of prorogation and he assured us that he would be coming to liaison.
I’m afraid that is a promise broken because he has prorogued parliament and select committees can’t sit. But in fact we decided that we would invite him anyway – that we would come back and sit on an informal basis, and I’m afraid we’ve heard today that he’s not prepared to come.
He is unaccountable. We have seen how everything has unravelled, with just a week of scrutiny in parliament. And I suspect that he didn’t want that to continue.
— Sarah Wollaston, BBC Newsnight interview, Sep-10-2019. Transcript published online by The Guardian here.
Wollaston is a medical doctor who left the Conservative party last February, and is currently a Lib Dem. She has a history of grilling the prior PM, Theresa May, about the effects which a no-deal Brexit would have on patient care:
Wollaston is a gifted, perspicacious, perhaps even prescient questioner who is never distracted by spin, and always manages to bring the witness back to her original question. It’s virtually certain that had Boris Johnson appeared as scheduled before the Liaison Committee, he would have faced tough questioning about the shortages of medicine predicted by the government’s own Operation Yellowhammer documents (in the event of no-deal), which were leaked to the press, and which the House of Commons subsequently required the government to release in full. (They only released a summary.) It is unlikely that Johnson’s legendary tactic of throwing a dead cat on the table would have fazed Wollaston in the least.
Whilst debates in the Commons are often dramatic — as can be Prime Minister’s Questions — much of the genuine oversight work is done in relatively sedate committee meetings where ministers are questioned slowly and patiently by MPs, with ample time for follow-ups, which are often needed to hone in on the truth. (Crucial where the facts are not flattering to the government, and ministers are inclined to evade, spin, or even openly deceive.)
Indeed, my second example relates to ongoing controversies about Operation Yellowhammer. The government documents originally leaked to the Sunday Times indicated that the assessments contained therein represented the “base case” — i.e., what was likely to occur in the event of a no-deal Brexit. However, government ministers (including Boris Johnson, Michael Gove, and Andrea Leadsome) have claimed that:
1. Operation Yellowhammer is an old, outdated report describing possible effects of a no-deal Brexit which have largely been mitigated through careful government planning.
2. The effects described in Operation Yellowhammer — such as shortages of food and medicine, civil unrest, and the return of a hard border in Northern Ireland — were never anything but worst case scenarios, not “base case” or likely effects.
This is a significant issue, the facts about which were, prior to prorogation, being actively pursued in committee meetings where ministers were required to testify.
One such meeting of note occurred on September 5, when the chair of the Select Committee on Exiting the EU, Hilary Benn, questioned Michael Gove, who is the cabinet minister in charge of Brexit preparations. Benn questioned Gove carefully, patiently, and at length. Though reluctant to do so, and initially denying it, Gove was eventually forced to admit that — contrary to what he and other ministers were claiming — Operation Yellowhammer appears to describe the base case, not the worst case scenario. This information is important because:
1. The public have a right to know what to expect in the case of a no-deal Brexit, and to arrange their personal affairs accordingly.
2. MPs who may be required to vote on (or even originate) Brexit-related legislation likewise need accurate information in order to make informed, conscientious choices on behalf of their constituents.
This video of the hearing is concrete evidence of the type of oversight in which the House of Commons would surely be engaged were it not prorogued:
This tweet by Benn shows a transcript of the relevant part — where Gove is forced to backtrack, correct his earlier statement, and admit that the Yellowhammer report contains the phrase “base scenario”:
Though dull, the video does show Gove squirming, spinning, and hedging. Thus, one possible motive for proroguing Parliament is so that government ministers don’t have to face skilled and dedicated truth-squaders until after they’ve nearly run out the clock to a no-deal Brexit. In that respect, a non-sitting House equals a license to spin.
Ian Dunt seems to have live-tweeted the hearing; his pithy comments may provide additional insight:
You can view his complete live-tweet more easily on Threader.
But the story doesn’t end there. Subsequent to the prorogation of Parliament, there have been renewed efforts by ministers to float the story that Operation Yellowhammer represents only a worst case scenario. When government finally did release the report, in addition to redacting it, they apparently retitled it. An article (with typos) on The New European discusses these developments, referencing a letter Benn sent to Gove on September 17:
In a letter, Benn said: “I would be grateful if you could explain why the document we received is entitled the ‘reasonable worst case scenario’, whereas it has been reported that a very similar if not identical version obtained by the Sunday Times was entitled the ‘base scenario’.
Benn has tweeted the complete letter:
The crucial point is that because Parliament is currently prorogued, it’s doubtful that Gove is under much pressure to respond. If he fails to do so, he cannot be hauled before the relevant committee(s), because the relevant committee(s) cannot meet! He presumably can’t be held in contempt, because that too would be a function of a sitting Parliament.
In practical terms, proroguing means that Hilary Benn cannot bring Michael Gove before the Brexit Select Committee and ask him: “I thought we’d cleared up this business about Operation Yellowhammer being a worst case scenario. Why are you now resurrecting that claim in government statements?”
As regards contempt, note well that Dominic Cummings was found in contempt of Parliament in March, 2019. Cummings is a former special adviser to Michael Gove, and former campaign director of Vote Leave. He is currently a senior adviser to Prime Minister Johnson, and is alleged to be a major architect of Johnson’s policies and tactics regarding Brexit, including the prorogation itself. It is therefore reasonable to believe that the Johnson/Gove/Cummings camp would be sensitive to the possibility that a sitting House of Commons might exercise its powers of contempt if confronted with a no-show witness, or a witness who knowingly deceived a committee of the House.
A third example, which I do not describe in detail, concerns Amber Rudd, the former Work and Pensions Secretary. She resigned from the Johnson cabinet shortly before the proroguing of Parliament. Her main stated reason was that she saw a huge gap between Johnson’s public claims that he was actively seeking a deal with the EU, and her perception as a cabinet insider that most of the effort was going into planning for no-deal, and that no concrete proposals were being put forward by Johnson to actually get a deal.
The strong implication that government were saying one thing while doing quite another thus came to a head shortly before Parliament was prorogued. It is likely that had Parliament not been prorogued, relevant committees would have held hearings on this issue in order to get at the truth.
These examples speak to both motive and real world effects. Parliament has been prorogued for an excessively and praeternaturally long period at a time when its oversight functions are most desperately needed — a time when government are contemplating taking drastic actions (e.g. leaving the EU without a deal), while at the same time there remain serious questions about the accuracy of the information government are releasing to the public.
Such examples put “meat on the bone,” making the abstract notion that Parliament is being prevented from performing its duties more concrete, and more relevant to the day-to-day issues faced by the UK in the lead-up to the October 31st Brexit deadline.
These examples could, in turn, be bolstered with additional evidence and citations, and put into the form of an addendum to the legal briefs, in a manner which might satisfy the Court as to the real world effects of prorogation.
The inevitable conclusion is that Parliament has been prorogued not merely for political reasons, but for reasons intended to frustrate its core function. Parliament has been prorogued to prevent it from scrutinising and overseeing exactly those aspects of government which, in a parliamentary democracy, it surely must scrutinise, oversee, and respond to in timely fashion. The clock is ticking!
Yet, even if one were to ascribe the most benign of motives to Boris Johnson’s proroguing of Parliament, the malign effects still persist. On that basis alone, it should be declared illegal.
There is, then, a useful distinction to be made between the courts wading into day-to-day political matters, or (as here) the courts preventing the executive branch from sabotaging the core function of the legislative branch. A government might conceivably have various permissible motives for proroguing Parliament, some of which might even be political; but frustrating the core function of Parliament is simply not a permissible motive, and the effects thus produced do not comprise a constitutionally acceptable outcome.
The views expressed are my own, and do not represent any other person or organization.
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