Prorogation, as everyone knows by now, is the use of the royal prerogative to produce a temporary suspension of Parliament, usually for a few days. It marks the end of one session and clears the way for the start of another, with a new Queen’s Speech and a new programme of legislation. It’s one of the remaining bits of the prerogative, a ragbag of those powers exercised by Her Majesty’s Government that have survived from the Middle Ages without being significantly nibbled away by statute. For years now it has been a matter of technical routine, subject to some uncertainty depending on last-minute faffing in negotiations over amendments to bills, but basically anticipated well ahead and limited to a few days, which everyone puts to good use setting up the paraphernalia for all the flummery of a state opening of Parliament. The government’s decision to prorogue for a much longer period of five weeks (flagged up well ahead as a device to prevent Parliament from acting to avert a no-deal Brexit, however it was formally presented) has made this apparently minor piece of British constitutional arcana into one of the battlegrounds of the current political struggle over the UK’s departure from the EU.
That’s not really surprising, because arcane and ancient as it may be, prorogation is one of the rusting and largely forgotten but still unexploded bombs buried deep in our constitutional arrangements. It’s impossible to track its origins entirely; but by the sixteenth century the distinction between a routine adjournment – a break taken at the discretion of the House of Commons or Lords themselves, and applied only to that House – and a usually longer prorogation – a break in the proceedings of both Houses at the same time, on the command of the Crown – was well understood. It was also understood that prorogation killed off any bills not completed and given royal assent, whereas an adjournment allowed pending bills to be completed when the House resumed. To confuse matters, on occasions the Crown would require both Houses to adjourn themselves. The Commons would insist that it was formally their own decision to do so; but they always complied nevertheless.
There’s some evidence that an arbitrary approach to prorogation was already a source of annoyance to Parliamentarians in the fifteenth century. But it’s only in the early seventeenth century that the Crown’s powers to force an end to proceedings, whether by adjournment, prorogation or, indeed, dissolution, are known to have become themselves a source of controversy. James I’s dissolution of Parliament in 1614 – out of frustration with its lack of progress and before it had managed to pass any bills – was the background to a row in the next Parliament of 1621 when the king tried to make the House of Commons adjourn before, many of its Members thought, they had completed their business. Under Charles I in the later 1620s, a series of Parliaments were prematurely brought to an end, culminating in chaotic scenes at the end of the 1628-9 Parliament when the Speaker was held down in his chair to prevent him adjourning the House at the king’s command. The historian Edward Hyde, earl of Clarendon, an adviser to both Charles I and Charles II, thought that few things were more instrumental in producing the political distrust and polarisation that led to the Civil War.
These hasty dismissals of Parliament, and the eleven years without a Parliament at all that followed the events of 1629, fuelled a demand, first heard in 1610, that Parliaments should sit at least once every year. It was founded on the rediscovery of two fourteenth century statutes that required parliament to be held at least once every year. These statutes had never been effective – many years had passed in the intervening centuries without a parliament or an election – but they could be used to make a powerful case that regular parliaments were part of England’s legal and constitutional system. When Charles I was forced to call a new Parliament in 1640 because he needed funds to combat the Scottish insurgency known as the Covenanting movement, leading opponents of the government campaigned for new legislation to ensure that the old statutes were respected. In this they were also inspired by the actions of the Scottish Parliament, which had refused to accept a prorogation, and had carried on regardless. In 1641, the king finally, though unwillingly, accepted the English Parliament’s bill to prevent its dissolution or prorogation except by its own consent. The resulting Triennial Act also established a mechanism to ensure that a new Parliament would be held three years after the dissolution of the previous one.
The Triennial Act did not long survive the Restoration of the Monarchy in 1660. It was replaced in 1664 with a weaker (and ineffective) commitment to hold a Parliament every three years. But this aroused little complaint, because with one exception in 1672 Parliament did in fact meet every year until November 1675. Then Charles II decided to prorogue it for 15 months. That prorogation – the result of the king’s failure to decide whether he was better off keeping an increasingly difficult assembly or dissolving it and taking his chances with a new one – revived the issue of annual Parliaments. The government’s opponents claimed that the two medieval statutes meant that a Parliament prorogued for longer than a year would be ipso facto dissolved and new elections held. The demand for a new Parliament became strongly associated with the opposition leader, the Earl of Shaftesbury, and with the more radical, even republican, elements of the political movement that became known as ‘Whiggism’.
Since the Revolution of 1689, Parliament has met every year, not because of any formal requirement but because of the way government finance works. The demand for annual Parliaments became part of the programme of nineteenth century radicals, as a demand for annual elections (at a time when elections were only required once in seven years) – but it remains the only one of the Chartists’ Six Points that has not been enacted. Prorogation and dissolution survived as royal prerogatives, and could still be manipulated for political advantage, even to avoid discussion when inconvenient to the government. Dissolution by royal prerogative was blocked with the Fixed-Term Parliaments Act of 2011. But the power to prorogue is unaffected and survives in the hands of the executive.
Can all this tell us anything useful about the current controversy? Salutary though the warnings might be, comparisons of Britain in 2019 with Italy in the 1920s or Germany in the 1930s seem wide of the mark. It’s not exactly a coup to use existing constitutional machinery, even when rusty, to achieve your ends. As the government has endlessly pointed out, Parliament is not being silenced for much longer than would otherwise be the case, and it has indeed been prorogued for much longer before. Yet the crucial point is surely that the government has removed the two Houses’ ability to determine for themselves the date at which they would adjourn. It has taken full control of their agenda. Though some of the technical details aren’t quite the same, in practical terms this is much the same row as in 1621, 1629 and 1675: is it right for a government to be able to suspend sittings of Parliament – however briefly – as a way of pre-empting what Parliament may or may not do? And – as people worried in the seventeenth century – if it happened once, it can happen again.
Beyond the rights and wrongs of prorogation, it has been striking how easily constitutional argument turns historical. Historians are often quick to point out how the past resonates with the present, even while they become irritated as a wider audience pick up the parallels while jettisoning the nuance and commentators try pointlessly to extrapolate from past situations to future outcomes. Those directly involved in the events themselves play on those resonances, as did those MPs who made a theatrical and rather unconvincing attempt to hold Speaker Bercow down in his chair at the recent prorogation. In all this, we follow the parliamentarians of the 1620s, who seized on their own precedents of almost three hundred years before. Constitutions are inherently historical, and the British constitution, which relies so deeply on conventions based on the normal and routine ways of doing things, is especially so. In this case, the resonances are not because history repeats itself, or rhymes; but because we are still talking about the same thing.