As I write this Boris Johnson is on his way to Balmoral Castle to request that the Queen prorogue Parliament from September 10 to October 14. This raises the question of what options the Queen may have.
Under usual circumstances the Queen will follow the advice of her Prime Minister. In fact, some argue that the Queen only acts on the advice of the Prime Minister and must follow the advice of the Prime Minister. Is this the case? What options does the Queen have?
The question of whether to prorogue Parliament is considered one of the “reserved” powers of the Queen. This means that the Queen does not necessarily have to accept the advice of the Prime Minister. This is evidenced by the fact that various Governors-General throughout the Commonwealth have denied prorogation for various reasons, primarily where prorogation would avoid a vote of confidence in which the likely result is that the government would be defeated. In Canada, in 2006, when the government was facing such a vote, the Governor-General delayed her decision for a number of hours to consider what to do, before granting the prorogation.
Anne Twomey, a Australian academic who is considered an expert in the area wrote, “There is more than a suggestion that there is a reserve power to refuse advice to prorogue, but the extent of that reserve power may be confined so that it is only exercisable in order to support, rather than undermine, fundamental constitutional principles such as responsible government and the rule of law.” (Prorogation -Can it Ever be Regarded as a Reserve Power?; Legal Research Paper No.17/13). Some, including the Speaker of the House of Commons, and the Leader of the Opposition would argue that this is such a case. But against this is the convention that the Queen ought not to be brought into political debates and as a result will follow the advice of her Prime Minister and let the ultimate determination of the matter be determined through the political processes.
If it is the case that the Queen can refuse the advice, it must also be the case that she can respond and discuss the advice, seeking to have the Prime Minister revise his advice to compromised position that to meet any concerns that the Queen may have.
It is therefore likely that the Queen will grant a prorogation; but, I would argue that the Queen may have a way to “square the circle” by granting the prorogation for a shorter period. If the Prime Minister is basing his request on the usual grounds that there is a new government that desires a new Queen’s Speech (Speech from the Throne), then the Queen’s response could be that she will grant it on the usual terms, being between seven and fourteen days. Prorogation could be granted immediately for the usual period, say until September 10, with the Speech taking place then, and providing Parliament a clear run , on the timetable it agrees on, until October 31. This way the government will get its prorogation on the basis it argues that it is asking for and Parliament gets a maximum of sitting time.
I do not expect this scenario to play out since the Queen will not want to be seen to be involving Herself in such a debate; but it may be the compromise necessary to move the debate forward.