Boris prorogues Parliament... can he do that?

So Boris has asked the Queen to prorogue Parliament in September. Yes, he can do that.

The prerogative powers (powers traditionally exercised by the Prime Minister in the name of the monarch) allow the PM to prorogue Parliament for whatever reason, and the Queen is bound by convention to consent.

Some newspaper reports argue that he is doing this to force through a no-deal Brexit, but others say that he wants to hold a gun to Parliament's head to force them to approve a deal (likely a jazzed-up version of May's Chequers plan). Either way, the PM is at liberty to approve whatever prorogation of Parliament he so desires.

The real question is the implications of this decision for the constitution - this is a legal blog, I don't deal with the politics.

Why did the Queen consent? Well, the Queen is bound to do whatever she is advised to by her PM. Jennings set out three criteria for whether something is a constitutional convention, and we can see that the Queen is indeed bound by such a convention to prorogue Parliament on the advice of the PM:

• Is there a history of this being done? Yes. Parliament is traditionally prorogued when the government wishes to end a Parliamentary session, and this happens uncontroversially and regularly. Remember, the Fixed Terms Parliaments Act limits a Parliamentary session to five years, and so at the very least a session must end once during this period. Whilst there is less history of Parliament being prorogued so controversially, this is still well within the powers of the PM. 
• Do the relevant people feel bound by this? Yes. We don't know the Queen's personal opinions on Brexit, but we do know that she has never acted outside the advice of her Privy Council, and thus she undoubtedly feels bound by this convention. 
• Is there a reason for this? Boris's reason is likely to simplify the Brexit process, and give certainty as to leaving the EU - something we haven't had much of for the past 3 years. There is also a reason why the monarch must act on the advice of her ministers, and this is to preserve the integrity and independence of this branch of government. While Bagehot said that the Queen's role was to "counsel, encourage, and warn" the PM, the monarch must ultimately rely on their advice, and act on it. 

Could the Queen refuse to prorogue Parliament? Of course, it is within her powers to reclaim her prerogative powers if you submit to a strict sense of the law, but others, like Wolff, have suggested that if one branch of government was to do the unthinkable, then other branches would be able to step in and correct this wrongdoing. What is the unthinkable? It could be (1) the monarch refusing to prorogue Parliament, or (2) Boris trying to circumvent Parliamentary sovereignty by proroguing Parliament and forcing through a no-deal Brexit against the will of the House of Commons. 

(1) Parliament could fix this wrong by legislating, thanks to Parliamentary sovereignty. 

(2) The Queen could fix this wrong by refusing to prorogue Parliament (which she hasn't). Parliament could call a vote of no-confidence before the prorogation. Or the judiciary could decide that Boris, in his advice to the Queen, has acted improperly, and thus could reverse this decision (an idea floated by former PM John Major). 

There is no doubt that this prorogation has significant consequences for the constitutional fabric of our nation, and is already having repercussions across the media, politics, and just general life. But the fact is that it is well within the PM's powers to ask for a prorogation of Parliament, and it is well within the Queen's powers to accept. Now all that's left to do it wait and see what happens next when Parliament returns on September 3rd.

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