On 24 September 2019, in a unanimous decision by eleven justices, the UK’s Supreme Court found Prime Minister Johnson’s advice to the Queen to prorogue parliament from September 9 and 12 September 2019 until the State Opening of Parliament on 14 October 2019; in the end, Parliament unlawful. The judgement upheld the ruling of the (Scottish) Inner House of the Court of sessions (which overturned a prior judgement in the Scottish courts to the effect that the decision to prorogue was not justiciable) and overturned the High Court of Justice ruling to the same effect. As a result, the Order in Council permitting the prorogation was null and and no effect, and parliament had not been prorogued. This article sets out to assess the judgement.
In Part I, I define prorogation, relying on the materials available from the cases, and provide a timeline on main events leading up to the judgement of September 24. In Part II, I present the traditional argument that a prorogation decision is not justiciable, followed by the arguments why this decision is justiciable. In Part III, I review the judgement’s reception in the press at home and abroad, recall the historical roots of the British constitution, and the innovations made in UK constitutional law, particularly under successive New Labour governments; in Part IV, I de-constrruct the judgement, in the manner of post-historical research. The reason for this approach is that it was the method used by the judges to judge the true purpose of Prime Minister Johnson’s decision.
What is prorogation?
Prorogation of parliament is the process whereby the Crown in Parliament deploys the prerogative power of the monarch to bring a parliamentary session to an end. As stated in Article 1 of the Bill of Rights of 1689, “ the pretended Power of Suspending of Laws or the Execution of Laws by Legall Authority without Consent of Parlyament is illegall”. The Bill of Rights is the prime document of the United Kingdom’s uncoded Constitution, and stands alongside the Magna Carta of 1215 and the Petition of Rights of 1628. The Petition of Rights, drawn up by Sir Edward Coke, was eventually passed in 1641, under the so-called Long Parliament. The Long Parliament dissolved itself on March 16 1660, after the two decades that covered the Civil War, Cromwell’s rule and the Restoration of the Stuart dynasty under Charles II. The Bill of Rights recognized the monarch’s power to prorogue, but insisted that it had to be shared. This position was reiterated by successive Acts in 1707 (The Succession to the Crown Act); 1797 (The Meeting of Parliament Act), which stipulates that parliament may be summoned using the powers in the Act, even if Parliament stands prorogued or adjourned; 1867 (The Prorogation Act), which stipulated that only the monarch could prorogue parliament; 1996 ( The Reserve Forces Act, section 52(8); 2004 (The Civil Contingencies Act Section 28); and 2011,(The Fixed Term Act, Section 6), which preserved unaltered the prerogative power to prorogue parliament.
The focus of the Fixed Term Act was to prescribe the circumstances in which a general election could be called. Her Majesty’s government would have to achieve a two-thirds majority in the House of Commons, in order to call a general election before the expiry of what parliament voted to be the new norm of a five year term. In so doing, the Act severely curtailed the power of the Prime Minister to call a general election once he or she failed to command a majority in the House.
It follows from the stipulations of the 1867 Act that the decision is made by the Sovereign formally on the advice of the Privy Council but in reality on the advice of the Prime Minister. Parliament is prorogued between sessions and Parliament ceases to operate. During this period, proceedings in both Houses are brought to an end. according to the House of Commons Briefing Papers no 8589 on Prorogation, from June 11, 2019, members may not “debate government policy and legislation, submit parliamentary questions for response by government departments, scrutinise government activity through parliamentary committees or introduce legislation of their own”. Business does not recommence in both Houses until the start of a new session, with a State Opening by the Monarch, and her delivery of a Queen’s Speech which sets out the Government’s legislative agenda. Convention not law governs the duration of a session, which generally lasts about one year. The session of parliament, which Prime Minister Johnson decided to prorogue, lasted from June 2017 until September 2019, ,well over two years-the longest period since the times of the Long Parliament of 1641.
The length of prorogation is governed by convention not by law. As the Briefing Paper points out,, since the 1980s, prorogation has rarely lasted longer than two weeks, and, between sessions, it has been less than a week. There is though one exception. In 1997, Prime Minister John Major prorogued parliament in order to avoid the Parliamentary Commissioner’s report on what was called the “cash-for-questions” scandal – MPs receiving cash in exchange for their asking questions on the floor of the House. On that occasion, Major’s prorogation lasted for five weeks from Friday, March 21, and that was followed by a general election held on May 1. Major’s decision was covered by convention. Following the Fixed Term Act, the statutory period from dissolution to general elections is 25 days.
Prorogation differs from dissolution, adjournment or recess. Parliament is dissolved pending a general election. As Lord Burnett points out in the High Court judgement of September 11 2019, “Until recently, dissolution was a matter for the Prime Minister of the day who would ask the Sovereign to dissolve Parliament. Constitutional experts, for example the late Professor R. V. Heuston, consider that the Queen retains a personal discretion both to refuse a Prime Minister’s request for a dissolution and to dissolve Parliament without a request. But in modern times the reality invariably has been that when asked to dissolve Parliament the Sovereign has agreed.” Lord Burnett goes on to point out that “prorogation should also be contrasted with the adjournment of either or both Houses during a session, including for a recess. That is commonplace. Either House can, if it chooses, sit without interruption. But both Houses adjourn from day to day whilst they are sitting and from one week to another. They also may, and customarily do, adjourn for much longer periods. Those include, for example, over Christmas and the New Year, Easter and Whitsun and over the summer.” “Whilst standing adjourned or in recess the business of Parliament continues to some extent. In particular, select committees continue with their investigations and may direct inquiries to ministers and written questions may be asked of ministers.”
A timeline on the prorogation judgement of September 24, 2019.
The background to the prorogation case may be rapidly summarized: following on from Prime Minister Cameron’s Bloomberg speech of January 23, 2013, the Conservative Party launched its manifesto for the 2015 General Election. On February 22,2016, Cameron announced the EU referendum date-June 23, 2016- after securing a deal on Britain’s membership of the EU. The government published its pamphlet, The Best of Both Worlds: The United Kingdom’s special status in the reformed European Union. On April 6, 2016, the Government published an EU referendum leaflet and had it delivered to every household in the UK, setting out the case for remaining in the EU. The referendum was held on 23 June 2016. It resulted in a majority of 52% in favour of leaving the European Union. England, Wales and Cornwall voted to leave, while Scotland and Northern Ireland voted to Remain.
Theresa May, who had voted with the government to remain and to seek reform of the UK’s status as a member, became Prime Minister. On October 2, at the Conservative Party conference, May announced she would trigger Article 50. The PM announced a Great Repeal Bill to repeal the 1972 European Communities Act. On November 3, the High Court found in favour of Gina Miller, to the effect that the Government could not, according to the UK’s constitutional law, use prerogative powers to give the notice required by Article 50 of the Lisbon Treaty to withdraw from the European Union. The government appealed to the Supreme Court, which proceeded to endorse the High Court’s verdict. https://www.bailii.org/uk/cases/UKSC/2017/5.html The government accepted the verdict, invoked Article 50 and called a general election, for 8 June, 2017, resulting in a hung parliament.
On November 25, 2018, Theresa May’s “deal” , the Brexit withdrawal agreement, and the political declaration on future EU-UK relations were endorsed by the EU 27, and by the Prime Minister. May submitted the draft treaty to the Commons. On January 9, 2019, Prime Minister May suffered a huge defeat, losing the vote by 230 (with 202 MPs voting in favour of the PM’s Brexit deal and 434) against. Further two defeats ensued. Eventually, the European Council agreed on an extension of the Brexit day from March 29 to October 31, 2019. These events were accompanised by a lively debate between constitutional experts and lawyers about both the constitutional propriety and legality of proroguing parliament in advance of exit day. I refer to the two prime contributions here.
The prorogation timeline.
On 25 March 2019, the prospect of prorogation, with the intention of preventing parliament from blocking a “no deal Brexit”, was suggested by Sir Stephen Laws and Professor Richard Ekins in a paper by Policy Exchange. https://policyexchange.org.uk/wp-content/uploads/2019/03/Endangering-Constitutional-Government.pdf.
This was followed by an article in The Daily Telegraph, by Professor John Finnis,that was published after expiry of the the exit date then fixed by statute, namely 29 March 2019.https://www.telegraph.co.uk/politics/2019/04/01/one-option-remains-brexit-prorogue-parliament-allow-us-eu/
The idea of prorogation was also ventilated in the House of Commons as a method of circumventing the rule that the withdrawal agreement could not be the subject of a third vote during the same parliamentary session. The concern was that, because the default position under Article 50 is that the UK would leave the EU with “no deal”, if none had been agreed by 31 October, parliament would be unable to prevent a no deal Brexit. During the Conservative Party leadership contest, following upon the former PM’s resignation, there was occasional reference to this possibility.
On June 23, after a leadership campaign for the vote of the 160,000 members of the Conservative and Unionist Party, the Rt Hon Boris Johnson MP was appointed as Prime Minister in replacement of the Rt Hon Theresa May. Johnson won 92,153 votes to Jeremy Hunt’s 46, 656.
On the same day, the Northern Ireland (Executive Formation etc) Act 2019 received Royal Assent. This provided for reports on progress towards forming an Executive in Belfast to be published before 4 September 2019 and thereafter laid before parliament. Specific provision was made for the situation where parliament would stand prorogued or adjourned at the relevant time. In that event, a proclamation under the Meeting of Parliament Act 1797 would require parliament to meet for several days after the date on which the report was laid. During the leadership campaign the issue of whether parliament might be prorogued either side of 31 October was raised and not ruled out by a number of the candidates, including the Prime Minister.
On 25 July, 2019, Prime Minister Johnson committed to the 31 October date for Brexit, and while hoping for a renegotiation of the Withdrawal Agreement, refused to rule out the possibility of a no deal exit. Parliament adjourned for its summer recess and reassembled on Tuesday 3 September. It had been customary for parliament to go into recess for a period to coincide with party conferences, usually about three weeks. These party conferences generally occurred between mid- September to early October. Whilst standing adjourned or in recess the business of parliament would continue to some extent. In particular, select committees could continue with their investigations and could direct inquiries to ministers; written questions could be asked of ministers. If prorogued, business would be halted, with the exception of the Northern Irish Executive Act references, mentioned above.
On July 30, the Scottish case against proroguing parliament was brought by a cross party group of 75 members of parliament and a QC. Their concern was that parliament might be prorogued to avoid further debate in the lead up to exit day on 31st October. The petition argued that prorogation of parliament was ultra vires.
On 15th August, Nikki da Costa, Director of Legislative Affairs at No 10 Downing Street, sent a memorandum to the Prime Minister, copied to seven people, civil servants and special advisers, recommending that his Parliamentary Private Secretary approach the Palace with a request for prorogation to begin within 9th to 12th September and for a Queen’s Speech on 14th October. The Prime Minister ticked ‘yes’ to that recommendation.
On August 19, 21 and 22, the Prime Minister travels to Dublin, Berlin and Paris to discuss Brexit with the Taoiseach Varadkar, Chancellor Merkel and President Macron.
On 27th August (or 28th), in a telephone call, the Prime Minister formally advised Her Majesty to prorogue parliament. On 28th August, Mr Jacob Rees-Mogg, Leader of the House of Commons and Lord President of the Privy Council, Mr Mark Harper, chief whip, and Baroness Evans of Bowes Park, Leader of the House of Lords, attended a meeting of the Privy Council held by the Queen at Balmoral Castle. HM the Queen promulgated an Order in Council in the following terms: “It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”
A Cabinet meeting was held by conference call shortly after that in order to bring the rest of the Cabinet “up to speed” on the decisions which had been taken. That same day, the decision was made public and the Prime Minister sent a letter to all members of parliament explaining it. As soon as the decision was announced, Mrs Miller began the English proceedings challenging its lawfulness.
On September 2, 2019,Hillary Benn published the text of the European Union (Withdrawal)(No 6) Bill with support from opposition parties and some Conservative MPs.The bill set two deadlines: 19 October as the date by which the Prime Minister would have to either: get MPs to pass a withdrawal agreement; get MPs to pass a motion agreeing to a no-deal Brexit; or write to the EU requesting an extension to Article 50.The text of the letter that would have to be sent to the President of the European Council requesting an extension was set out in a schedule to the bill and contained the second deadline: 31 January 2020 – the new date for the UK’s withdrawal from the EU, if the extension proposed in the bill were granted by the EU. The bill said Brexit could happen sooner, if both sides agreed to a deal after 19 October but before 31 January. It did not, however, say what would happen if there were still no agreement by the end of January.
On September 3, 2019 parliament returned from the summer recess on 3rd September. The Rt Hon Sir Oliver Letwin MP proposed a motion that Members of Parliament should “take control of the Order Paper”.That motion passed. On Wednesday 4 September the European Union (Withdrawal) (No. 6) Bill was introduced into the House of Commons and passed all its stages. The Prime Minister opposed it inside and outside parliament.The House of Commons voted to decide for themselves what business they would transact. Oliver Letwin was granted an Emergency Debate on European Union (Withdrawal). The motion was passed and allowed opposition MPs (with support from some Conservatives) to take control of Commons business, in order to pass Hilary Benn’s European Union (Withdrawal) (No. 6) Bill. By 328 votes to 301, MPs backed the motion to allow a debate on the Benn bill the next day. 21 Tory MPs voted with the opposition and later had the whip removed. The next day what became the European Union (Withdrawal) (No 2) Act passed all its stages in the Commons. It passed all its stages in the House of Lords on 6th September and received royal assent on 9th September.
The object of that Act was to prevent the United Kingdom leaving the European Union without a withdrawal agreement on 31st October. The Act thus passed in double quick time-five days in total.
On September 3, 2019, the petition before the Lord Ordinary (Scotland) for a substantive hearing was adapted to take account of the petitioners’ interpretation of events, that the Order in Council of August 28 was unconstitutional, and that it was unconstitutional for any Minister of the Crown, including the Prime Minister, to intend (my underlining) to deny parliament sufficient time for proper parliamentary consideration of the withdrawal of the United Kingdom from the European Union before Exit Day .
On 4 September the Prime Minister failed to secure the agreement of the House of Commons in accordance with the Fixed-term Parliaments Act of 2011 to hold a general election; and again on 9 September. As a reminder, the Act requires a two thirds majority of Members of Parliament to support a motion to trigger a general election. The other mechanism found in the Act requires the Government to lose a motion of no confidence followed by a failure of the House to pass a motion of confidence. The opposition decided thus far not to table a motion of no confidence in the Government.
On September 4, 2019, Lord Doherty sitting in the Outer House of the (Scottish) Court of Sessions concluded that the decision to prorogue parliament was not a matter for the courts. The power to advise the Queen in relation to the decision to prorogue parliament was a political one, Lord Doherty judged. Its exercise could not be measured against legal standards.
Parallel proceedings were progressing in Scotland, as noted above under July 30. They had been issued long before the order to prorogue Parliament had been made in the context of a growing concern that the Prime Minister might secure prorogation either side of the date appointed by statute for the departure of the United Kingdom from the European Union, currently 31 October 2019. Their focus changed following the prorogation order. An appeal was proceeding in the Inner House of the Court of Session.
On September 11, the High Court of England and Wales delivered judgment dismissing Mrs Miller’s claim on the ground that the issue was not justiciable in a court of law. The lord chief justice, Lord Burnett of Maldon, the Master of the Rolls, Sir Terence Etherton, and the President of the Queen’s bench division, Dame Victoria Sharp, dismissed the challenger by Gina Miller. The judges stated that: “The refusal of the courts to review political questions is well established … The prime minister’s decision that parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. They were inherently political in nature and there are no legal standards against which to judge their legitimacy.”: “In our view, the decision of the prime minister to advise Her Majesty the Queen to prorogue parliament is not justiciable in Her Majesty’s courts.” “All of these arguments face the insuperable difficulty that it is impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure. There is no legal measure of the length of time between parliamentary sessions,” they said.
That same day, the Inner House of the Court of Session in Scotland announced its decision that the issue was justiciable, that it was motivated by the improper purpose of stymying parliamentary scrutiny of the Government, and that it, and any prorogation which followed it, were unlawful and thus void and of no effect. The three judges, chaired by Lord Carloway, Scotland’s most senior judge, overturned the ruling of September 4 that the courts did not have the power to interfere in the Prime Minister’s political decision to prorogue parliament. He said that parliamentary scrutiny of the executive was “a central pillar of the good governance principle enshrined in the constitution”. The Court concluded that Johnson’s prorogation request to the Queen and her decision to accept it “ was unlawful and is thus null and void”. Nicola Sturgeon, Scotland’s first minister, said: “Today’s court of session judgment is of huge constitutional significance (my emphasis) – but the immediate political implications are clear. The Court says prorogation was unlawful and null and void – so parliament must be recalled immediately to allow the essential work of scrutiny to continue.”
Following the Advocate General’s appeal against the Scottish decision, and Mrs Miller’s appeal against the English Court’s decision, on September 24, 2019, the Supreme Court stated: “We have before us two appeals, one from the High Court of England and Wales and one from the Inner House of the Court of Session in Scotland. It is important, once again, to emphasise that these cases are not about when and on what terms the United Kingdom is to leave the European Union. They are only about whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August, that Parliament should be prorogued from a date between 9th and 12th September until 14th October, was lawful and the legal consequences if it was not. The question arises in circumstances which have never arisen before and are unlikely to arise again. It is a “one-off”.”
The Court passed a unanimous judgement into Gina Miller’s case, ruling “the decision to advise Her Majesty 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”. The Speaker of the House of Commons welcomed the Supreme Court decision, and announced that the Commons would sit at 11.30 am the following day. The Prime Minister says he strongly disagrees with the judgement and that “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 October 31”.