On 17, 18 and 19 September 2019, oral argument was presented at the UK Supreme Court (the highest court in the United Kingdom) on whether the UK Prime Minister’s advice to Her Majesty that Parliament should be prorogued (or suspended or discontinued without being dissolved) from a date between 9 and 12 September until 14 October 2019 was lawful.
Of the circumstances giving rise to this case, the UK Supreme Court said:
“It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”. But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.”
But what were those circumstances?
Since the question hinges on the lawfulness or otherwise of the prorogation of Parliament, that inquiry must of necessity begin by addressing the antecedent question: What is prorogation and how does it differ from Parliamentary recess and/or dissolution?
What is Prorogation?
Happily, a useful exposition in relation to that very question, as well as the distinction between prorogation on the one hand, and Parliamentary recess and/or dissolution, on the other, is contained in the UK Supreme Court’s unanimous judgment in these terms:
“2. Parliamentary sittings are normally divided into sessions, usually lasting for about a year, but sometimes less and sometimes, as with the current session, much longer. Prorogation of Parliament brings the current session to an end. The next session begins, usually a short time later, with the Queen’s Speech. While Parliament is prorogued, neither House can meet, debate and pass legislation. Neither House can debate Government policy. Nor may members of either House ask written or oral questions of Ministers. They may not meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off. The Government remains in office and can exercise its powers to make delegated legislation and bring it into force. It may also exercise all the other powers which the law permits. It cannot procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.
3. Parliament does not decide when it should be prorogued. This is a prerogative power exercised by the Crown on the advice of the Privy Council. In practice, as noted in the House of Commons Library Briefing Paper (No 8589, 11th June 2019), “this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to”. In theory the monarch could attend Parliament and make the proclamation proroguing it in person, but the last monarch to do this was Queen Victoria in 1854. Under current practice, a proclamation is made by Order in Council a few days before the actual prorogation, specifying a range of days within which Parliament may be prorogued and the date on which the prorogation would end. The Lord Chancellor prepares a commission under the great seal instructing the Commissioners accordingly. On the day chosen for the prorogation, the Commissioners enter the House of Lords; the House of Commons is summoned; the command of the monarch appointing the Commission is read; and Parliament is formally prorogued.
4. Prorogation must be distinguished from the dissolution of Parliament. The dissolution of Parliament brings the current Parliament to an end. Members of the House of Commons cease to be Members of Parliament. A general election is then held to elect a new House of Commons. The Government remains in office but there are conventional constraints on what it can do during that period. These days, dissolution is usually preceded by a short period of prorogation.
5. Dissolution used also to be a prerogative power of the Crown but is now governed by the Fixed-term Parliaments Act 2011. This provides for general elections to be held every five years and for an earlier election to be held in only two circumstances: either the House of Commons votes, by a majority of at least two-thirds of the number of seats (including vacant seats) in the House, to hold an early election; or the House of Commons votes that it has no confidence in Her Majesty’s Government and no-one is able to form a Government in which the House does have confidence within 14 days. Parliament is dissolved 25 days before polling day and cannot otherwise be dissolved. The Act expressly provides that it does not affect Her Majesty’s power to prorogue Parliament (section 6(1)).
6. Prorogation must also be distinguished from the House adjourning or going into recess. This is decided, not by the Crown acting on the advice of the Prime Minister, but by each House passing a motion to that effect. The Houses might go into recess at different times from one another. In the House of Commons, the motion is moved by the Prime Minister. In the House of Lords, it is moved by the Lord Speaker. During a recess, the House does not sit but Parliamentary business can otherwise continue as usual. Committees may meet, written Parliamentary questions can be asked and must be answered.”
The circumstances giving rise to the prorogation of Parliament in this instance are recorded in the Judgment. They are merely summarised here.
Circumstances for Prorogation
It appears that the Prime Minister advised Her Majesty to prorogue Parliament on 27 or 28 August 2019. What prompted the Prime Minister to follow that course is not clear. About the facts surrounding that advice, and the conversation between the Her Majesty and the Prime Minister, the Supreme Court has this to say:
“We know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister. We do not know what conversation passed between them when he gave her that advice. We do not know what conversation, if any, passed between the assembled Privy Counsellors before or after the meeting. We do not know what the Queen was told and cannot draw any conclusions about it.”
Yet, the Supreme Court found that the Prime Minister’s advice to the Monarch was unlawful. This conclusion appears to be founded on a handwritten note by the Prime Minister on a memorandum he had been sent by the Director of Legislative Affairs in the Prime Minister’s Office in which the Director recommended prorogation “to commence within the period 9th to 12th September ”.
In his handwritten comments, the Prime Minister had characterised the September 2019 session of Parliament as a “rigmarole … introduced … to show the public that MPs were earning their crust.” He also wrote that he did not see “anything especially shocking about this prorogation”.
The conjecture is that the Prime Minister sought to stymie Parliament in performing its legislative function and holding him to account in the lead-up to 31 October 2019 – the Brexit date – given that he is on record as having promised to take the UK out of the EU with or without a deal come 31 October 2019. But that intention is just that – rumour or suspicion.
The Supreme Court seems to have given it much weight in its judgment as it appears to have factored it into its formulation of the standard by which it says the lawfulness of the Prime Minister’s advice to the Monarch is to be measured. It does so by looking at the effect of the prorogation rather than at the Prime Minister’s supposed intention or motive for it. That done, the unlawfulness finding was unavoidable because the effect of prorogation is that Parliament cannot function.
To quote the from the judgment”
“While Parliament is prorogued, neither House can meet, debate and pass legislation. Neither House can debate Government policy. Nor may members of either House ask written or oral questions of Ministers. They may not meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off. The Government remains in office and can exercise its powers to make delegated legislation and bring it into force. It may also exercise all the other powers which the law permits. It cannot procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.”
So, if the lawfulness of prorogation is to be measured by the effect that it has on the business of Parliament, the Prime Minister simply had no escape hatch short of the separation of powers argument which the Supreme Court gave short shrift.
Prime Minister’s Argument and Court Finding
For the Prime Minister it was argued that the question of whether or not his advice to Her Majesty to prorogue Parliament was unlawful is not justiciable in the courts as that is a political question. Courts should respect separation of powers. The Prime Minister accounts to Westminster Parliament for his political conduct, of which this is one.
The UK Supreme Court gave short shrift to this argument in one short paragraph that cannot reasonably be faulted:
“[A]lthough the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. As the Divisional Court observed in para 47 of its judgment, almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.”
As regards the Prime Ministerial accountability to Parliament argument, the UK Supreme Court said:
“[T]he Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play. That is so for two reasons. The first is that the effect of prorogation is to prevent the operation of ministerial accountability to Parliament during the period when Parliament stands prorogued. Indeed, if Parliament were to be prorogued with immediate effect, there would be no possibility of the Prime Minister’s being held accountable by Parliament until after a new session of Parliament had commenced, by which time the Government’s purpose in having Parliament prorogued might have been accomplished. In such circumstances, the most that Parliament could do would amount to closing the stable door after the horse had bolted. The second reason is that the courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts.”
Having found that the lawfulness or otherwise of the Prime Minister’s advice to Her Majesty to prorogue Parliament is justiciable, the UK Supreme Court then articulated the standard by which such lawfulness was to be tested. It said:
“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: 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.”
The Supreme Court then found that, apart from merely characterising the continued sitting of what is already a lengthy session of Parliament as a “rigmarole”, the Prime Minister had advanced no reason – let alone a good one – for the prorogation of Parliament. On that ground, said the Supreme Court, on this standard the prorogation or advice to the Monarchy to prorogue Parliament was unlawful.
Quite how the Supreme Court could have come to this conclusion, having admitted to not knowing what had passed in conversation between the Prime Minister and Her Majesty, and to not knowing the content of what the Prime Minister told the Monarch, is not altogether clear.
But that is a subject for a detailed analysis, which this is not.
By AnchoredinLaw|2019-09-26T19:44:24+02:00September 26th, 2019|Cases of Interest, International|Comments Off on R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland  UKSC 41 (24 September 2019)