Prorogation of Parliament

In a unanimous judgment, the Supreme Court concluded that the question of the lawfulness of the Prime Minister’s advice to Her Majesty the Queen to prorogue Parliament was justiciable, and in this case the decision to advise the Queen prorogue Parliament was unlawful as it had the effect of frustrating/preventing Parliament’s ability to carry out its constitutional functions without reasonable justification. On this basis the prorogation was void and of no effect. Parliament has therefore not been prorogued. Nick Wrightson, senior associate in the Public Law team at Kingsley Napley, and Kieran Laird, partner and head of constitutional affairs in the Gowling WLG Brexit Unit give their analysis of the Supreme Court’s decision, highlighting key legal and constitutional implications.
R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41Highlighting the unprecedented circumstances of the case, and describing it as a ‘one-off’, Lady Hale delivered the unanimous judgment of all 11 Supreme Court justices. Dismissing the government’s appeal from the Inner House of the Court of Session and granting Gina Miller’s appeal from the High Court of England and Wales, Lady Hale emphasised that neither case concerned the terms of the UK’s withdrawal from the EU. It focussed on the advice given by the Prime Minister to the Queen that Parliament should be prorogued between 9–12 September and 14 October 2019, preventing Parliament from carrying out its constitutional role for five of the eight weeks between the end of the summer recess and exit day. The question was whether the advice was lawful, and the legal consequences if it was not.

The judgment focussed on four key questions:

• whether the lawfulness of the Prime Minister’s advice to Her Majesty the Queen to prorogue Parliament is justiciable

• the limits to the prerogative power to advise the Queen to prorogue Parliament, taking into account the fundamental principles of parliamentary sovereignty and parliamentary accountability

• whether prorogation in this case had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification

• if so, the legal effect of a finding that prorogation is unlawful

Is the lawfulness of the Prime Minister’s advice to Her Majesty the Queen to prorogue Parliament justiciable?

Yes—citing the courts supervisory jurisdiction over the lawfulness of government acts over centuries, the Supreme Court concluded that the case concerned the limits of the prerogative power to advise the monarch to prorogue Parliament, which is justiciable.

What are the limits to the prerogative power to advise the Queen to prorogue Parliament?

The Supreme Court noted that the power to prorogue is limited by the constitutional principles with which it would otherwise conflict. Taking into account the fundamental principles of parliamentary sovereignty and parliamentary accountability, the court concluded that the relevant limits on a decision to prorogue (or advise the monarch to prorogue) is that prorogation is unlawful if it has the effect of frustrating or preventing Parliament from carrying out its constitutional functions as a legislature and as the body responsible for the supervision of the executive―without reasonable justification.

Did prorogation in this case breach those limits—ie did it have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification?

Yes—the Supreme Court concluded that the decision to advise the Queen to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

In answering this question, the Supreme Court highlighted the difference between prorogation (during which all parliamentary business ends and most Bills in progress fall) and recess (during which the Houses of Parliament do not sit but parliamentary business can continue) and the exceptional circumstances of prolonged prorogation in this case. Taking into account, the ‘fundamental’ constitutional change due to take place in the UK on 31 October 2019, Parliament (in particular the House of Commons) has a ‘right to voice how’ that change comes about. The court concluded that the decision to prorogue, therefore preventing Parliament from carrying out its constitutional role for five weeks in advance of exit day had an ‘extreme’ effect on the fundamentals of democracy, for which the government had given no justification.

The government’s rationale focussed on the desirability of holding a Queen’s Speech on 14 October 2019, but did not explain why it was necessary to prorogue Parliament for five weeks, when the normal period necessary to prepare for a Queen’s Speech is four to six days. It did not acknowledge the difference between prorogation and recess and the impact of prorogation on the parliamentary scrutiny of preparations for an orderly withdrawal from the EU (with or without a withdrawal agreement), including Brexit legislation. Neither did it discuss parliamentary time required to secure approval for any new withdrawal agreement, as required under section 13 of the European Union (Withdrawal) Act 2018.

What is the legal effect of finding that prorogation is unlawful—what remedies may be granted?

The Supreme Court concluded that it could certainly declare that the advice to prorogue was unlawful. The question was whether it could also quash the resulting prorogation. The government had argued that prorogation was a proceeding in Parliament which, according to the Bill of Rights of 1688, cannot be impugned or questioned in court. The Supreme Court disagreed. Rather than being a proceeding in Parliament, or a matter on which Parliament may vote or participate, prorogation was imposed on Parliament, bringing all parliamentary proceedings to an end. This Supreme Court had concluded that the Prime Minister’s advice to prorogue was unlawful, void and of no effect. This meant that the resulting Order in Council was also unlawful, void and of no effect and should be quashed—with the result that the prorogation was null and void.

The immediate legal consequence of Supreme Court’s conclusion is that Parliament has not been prorogued and still in session.

Analysis—testing the limits of the prerogative

Nick Wrightson notes that in this ‘remarkably straightforward judgment’, the UK Supreme Court affirmed its centuries-old supervisory jurisdiction over acts of government and confirmed with one voice that the courts have jurisdiction to decide the extent and limits of prerogative powers, including the power to prorogue Parliament:

‘Drawing upon fundamental constitutional principles, the court formulated a legal standard by which the limits of the power to prorogue must be determined, as follows:

“…that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

Nick Wrigthson continues, ‘the Supreme Court decided that this test could be applied in practice with no greater difficulty than many other factual matters routinely decided by the courts.

Applying this test, the Supreme Court then concluded without hesitation that “of course” the Prime Minister’s recent action in proroguing Parliament had the effect of frustrating or preventing the constitutional role of Parliament in holding the government to account. “This was not a normal prorogation in the run-up to a Queen’s Speech” and the effect on Parliament was especially marked given how proximate the period of prorogation was to the UK’s potential exit from the EU on 31 October 2019. The court stated that “the circumstances here were…quite exceptional” and parliamentary scrutiny is especially vital in relation to events like Brexit, which are capable of fundamentally changing the UK constitution.’

‘The next question was whether the government had a reasonable justification for prorogation in this case. The court prefaced its remarks by recognising that the government must be afforded “a great deal of latitude in making decisions of this nature” and therefore that only the reasons given were relevant, not any underlying motive. It nevertheless concluded that no reasonable justification had been put before it. In fact, “no reason was given for closing down Parliament for five weeks” even though “[e]verything was focussed on the need for a new Queen’s Speech” (usually prorogation before a Queen’s Speech lasts just a few days). This, and the apparent failure to consider obvious matters, like the relative merits of prorogation and calling a recess, led the court starkly to decide that:

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

‘The decision of the government not to put forward further documentary evidence (if it existed) or a witness statement may be regarded with hindsight as fatal to its case. We will never know whether there were good reasons for that decision. Was it perhaps out of fear that this might become one of those exceptionally rare judicial reviews where the witness, perhaps the Prime Minister himself, is called to give live evidence?’ Wrightson asks.

Analysis—constitutional basis of the decision

In his analysis of the underlying constitutional principles, Nick Wrightson continues:

‘In examining the limits of the prerogative to prorogue parliament, the Supreme Court stated that prerogative powers are only effective to the extent that they are compatible with legislation and common law principles, including constitutional principles. The court then considered the effect of the “foundational principle of our constitution”—parliamentary sovereignty. It determined that Parliament cannot be prevented through the use of the prerogative from legislating for as long as Parliament pleases. An unlimited power of prorogation is therefore incompatible with parliamentary sovereignty.

The court recognised, however, that Parliament is not permanently in session and modern prorogations for short periods are common, stating: “There can be no question of such a [short] prorogation being incompatible with Parliamentary sovereignty—its effect on Parliament’s ability to exercise its legislative powers is relatively minor and uncontroversial.”

To establish the limits of the prerogative, the court therefore turned to a second principle “no less fundamental to our constitution”—parliamentary accountability. It was on this that the outcome hinged. The court observed: “…the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model”.

Based on these considerations, the court forged the “without reasonable justification” test quoted above.’

What happens next?

Lady Hale noted that it is for Parliament, in particular the Speakers of the Commons and the Lords to decide what to do next. Absent some specific parliamentary rule to the contrary, they may take immediate steps to enable the Houses of Parliament to meet as soon as possible. Lady Hale also noted the court’s pleasure at confirmation from the Prime Minister’s counsel that he would ‘take all necessary steps’ to comply with the court’s ruling.

Speaker of the House of Commons, John Bercow, welcomed the ‘unambiguous’ and ‘unqualified’ judgment of the Supreme Court, noting that it was right that Parliament should be in a position to scrutinise the executive, hold ministers to account and to legislate at this critical time. In light of the explicit judgment of the Supreme Court, the Speaker confirmed he had instructed House authorities to prepare for resumption of business of the House of Commons from 11.30am on 25 September. There would not be enough notice to hold Prime Minister’s Questions, but there would be opportunities for urgent questions, ministerial statements and debate.

Kieran Laird notes that the immediate effect of the ruling is that Parliament is still in session, raising the question as to what MPs will do next:

‘The Speakers of the two Houses will take steps to reconvene Parliament, which will then have to decide whether or not to go into recess for the rest of the conference season. The Liberal Democrats have already had their conference and Labour’s conference is coming to an end. Given that MPs must vote to go into recess, it will be interesting to see if the opposition parties resist the urge to play any games with permitting the Conservatives time to hold their conference next week.’

Government response

Speaking in New York shortly after the judgment was handed down, the PM gave brief remarks:

‘I have the highest respect of course for our judiciary and the independence of our courts…But I must say, I strongly disagree with [the Supreme Court’s judgment], and we in the UK will not be deterred from getting on and delivering on the will of the people to come out of the EU on 31 October 2019… And we will simultaneously refuse to be deterred from delivering on what I think you will all expect to be an exciting dynamic, domestic agenda intended to make our country even more attractive to live in and to invest in. So we are pushing on with infrastructure, investing in police, investment in our NHS and to do that we will need a Queen’s Speech to set out what we are going to do. And I think frankly, that is what the people in my country of the UK want to see. They want to see us delivering on getting on with a strong domestic agenda and believe you me, they want to see Brexit delivered by October 31st. Anyway, that’s what you need to know about what’s happening in the court today.’

Legal implications

Nick Wrightson comments on the legal effect of the ruling, highlighting some of the key questions it raises, as well as the prospect of further litigation:

‘The UK Supreme Court declared that the advice given to the Queen was unlawful, and it was outside the powers of the Prime Minister to give it. Therefore, the order proroguing parliament was also unlawful. The court ‘quashed’ the order, meaning it was null and of no effect. It declared that “Parliament has not been prorogued” and that “it is for Parliament to decide what to do next”.

In a memorable phrase in the summary she read out today in court, Lady Hale announced that “…when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper.” In other words, legally speaking, parliament is still in session and there is nothing to prevent parliamentary business from resuming immediately. That is a political decision for Parliament itself, hence the court invited the Speaker of the House of Commons and the Lord Speaker to decide as soon as possible upon a way forward.

The court also gave guidance that, in most circumstances, the Prime Minister’s desire to end one parliamentary session and begin another “will normally be enough in itself to justify the short period of prorogation [for a few days] which has been normal in modern practice”. The court said it would exercise caution in second guessing any justification put forward, because the Prime Minister should receive a degree of deference in his area of responsibility.

Might the Prime Minister seek to prorogue parliament afresh, albeit for only the ‘normal’ few days? It would appear extraordinary for the Prime Minister to do something so politically incendiary at this juncture, and it would inevitably face a further judicial review. However, the Supreme Court does seem to have left open the possibility of briefly proroguing in order to deliver a Queen’s Speech. Boris Johnson has said that he is returning to London shortly from New York and will respect the court’s judgment, but it does not appear he has yet ruled a further prorogation out.

The wider implications may be significant. For example, only three carry over motions were passed for eligible Bills before Parliament was purportedly prorogued, so a range of Bills, including all five Brexit Bills, were understood to have fallen. If the parliamentary session never ended, however, logically those bills are still ‘live’. Will a temporary recess need to be agreed to allow for the Conservative party conference next weekend as would happen in a typical year?

Will Parliament’s first act be to seize control of the order paper again, and to what end—perhaps to legislate a new statutory control mechanism for use of the prerogative? It must be rather unsatisfactory for politicians that future prorogations are clearly open to challenge and their lawfulness rests on uncertain criteria—whether it is long enough to require justification, and whether the justification is reasonable.

The Supreme Court has clearly tried to limit its ruling to the very extraordinary circumstances that have arisen, calling the case a “one-off”. Nevertheless, the terms of its judgment, particularly around the “without reasonable justification” test, seem to invite further litigation. That potentially includes claims brought by parties who wish not only to use the courts to uphold the constitution, but also to advance political objectives―even where they have not succeeded in doing so in Parliament.’

Constitutional implications

Kieran Laird highlights a number of surprising elements in the judgment for constitutional lawyers:

‘The first surprise is the means by which the issue of prorogation was held to be justiciable. The court held that the issue came down to whether there were limits placed on the prerogative power to prorogue and, if so, whether this particular prorogation transgressed those limits. It was held that prorogation was subject to common law principles—the two important ones here being parliamentary sovereignty and ministerial accountability. However, it could be argued that any argument against the use of a prerogative power could be framed in terms of contravention of a common law principle (including standard public law principles).

The second surprise is that, in finding that the prorogation would conflict with those two common law principles, the court seemed to take no account at all of the Northern Ireland (Executive Formation etc) Act 2019. In that legislation both Houses of Parliament had expressly grappled with the possibility of prorogation in the lead up to the 31 October 2019 and made provision to ensure that Parliament could not be prorogued for the entirety of that period. In other words, Parliament considered and set limits on the Prime Minister’s ability to prorogue and these then served as the parameters within which the prorogation was framed. In such circumstances it is difficult to see how parliamentary sovereignty, or the principle of ministerial accountability, have been contravened.

Finally, the court did not grapple with the effect of its judgment. Future claimants will now be able to argue that exercises of prerogative power will transgress common law principles and be able to demand justification for their use. Although the court is correct that the very particular circumstances of this case will not arise again, its effect is likely to lead to a much greater judicial intrusion on the exercise of prerogative powers.’

Source: LexisNexis

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