Thread by @woodstockjag

Quite a few people have asked me about the interaction between prorogation and the Fixed-term Parliament’s Act 2011. This explanation will be quite fiddly but it’s clearly something at the forefront of a lot of people’s thoughts so I’ll be as clear as I can. (1/x)

Firstly, the authority under which a Commission takes steps to prorogue Parliament is an Order in Council made by Her Majesty. That Order has been made. Even if the instructions are “in the future” the Commission will, by default, take steps to implement it. (2/x)

Secondly, if a statutory “motion of no confidence” passes, a 14 day statutory timetable kicks in, by the end of which either a Government must have (re)gained the confidence of the House or an early election is triggered (3/x)

Thirdly, during that 14 day period, the default position is that *nothing* changes about the House’s rules about precedence of business. In the modern parlance: “the Government controls the order paper” (4/x)

Fourthly, nothing about a statutory vote of no confidence “invalidates” or “nullifies” an Order in Council. The default position is Parliament still gets prorogued even if that “uses up” the 14 days. Nothing in the FTP Act 2011 requires Parliament to sit at any time. (5/x)

Fifthly, there might be *legitimacy* issues with following through with a prorogation the Queen has approved on the advice of a Prime Minister who immediately after and because of it lost the confidence of the Commons. (continued...) (6/x)

(continues...) However, any call for the Queen to reverse a decision based on this would be intensely political and expose some serious tensions in the principles of responsible and representative government. This probably explains why Queen agreed to prorogation today. (7/x)

Ultimately if an Order in Council is to be in any way “cancelled” it requires one of three things:

(a) to be interrupted by a subsequent proclamation summoning Parliament back “early”
(b) a new Order superseding the first before prorogation happens
(c) an Act of Parliament (8/x)

The first two of these three seems likely only to be issued “on advice” of Ministers (as with this Order in Council). The first could, context dependent, be triggered by other Acts (e.g. Civil Contingency Act 2004).

The third? Well the Government controls the Order Paper. (9/x)

But anyway, the “too long didn’t read” is that the Fixed-term Parliament Act 2011 has no legal effect on the power to prorogue, whatever your view of the constitutional implications of HMQ following advice from Ministers who subsequently lost the confidence of the House (10/10)