Earlier today (24 September 2019) the UK Supreme Court ruled on two questions regarding an Order to prorogue the UK Parliament. First, was it justiciable: in other words, could the decision to prorogue be subjected to scrutiny by the courts? Second, was it legal?
The court found that it did have the power to rule on this question. It went on to find that the Government’s decision to prorogue Parliament for five weeks was unlawful, and that Parliament has not in fact been prorogued.
This Insight will set out the findings of the Court, the remedies granted and the next steps for Parliament.
How did this prorogation come about?
On 28 August at a meeting of the Privy Council Her Majesty, by Order in Council, ordered that Parliament be prorogued. The prorogation was to take effect on a day between 9 and 12 September. Parliament was to be summoned again on 14 October for a new session. Her Majesty was acting on the advice of her Prime Minister. Parliament was then prorogued on 9 September.
The prorogation was controversial. When Black Rod came to summon the Commons to hear the Royal Commission for proroguing Parliament, the Speaker stated in the House:
“This is not, however, a normal Prorogation. It is not typical. It is not standard. It is one of the longest for decades, and it represents, not just in the minds of many colleagues but for huge numbers of people outside an act of Executive fiat.”
Separate legal proceedings to challenge the legality of the prorogation began in the courts of England and Wales, Northern Ireland and Scotland.
Was the decision to prorogue Parliament subject to judicial scrutiny?
The first question before the courts concerned the justiciability of the prerogative power to prorogue Parliament. That is, could the decision to prorogue be subjected to judicial scrutiny? If found to be justiciable, the second question concerned the legality of the prorogation. Finally, if the advice upon which the decision was based was deemed to be unlawful, what would that mean for the order to prorogue itself, and for the execution of that order?
Opposing rulings from High Court and the Court of Session…
On 11 September, the High Court of England and Wales held that the legality of the prorogation was not justiciable in a court of law. That meant that the High Court had determined the question to be beyond the scope of judicial review. On the same day, the Court of Session in Scotland reached the opposite conclusion. It determined that the issue was justiciable. It then concluded that the decision to prorogue Parliament was motivated by an improper purpose. The Court of Session concluded that the prorogation was “unlawful and thus null and of no effect”.
…led to the matter being referred to the UK Supreme Court
The UK Supreme Court heard appeals from both the decision of the High Court and the Court of Session. On 24 September the UK Supreme Court handed down a unanimous judgment.
What did the Supreme Court decide?
The Court held that the power to prorogue Parliament is a prerogative power: “a power recognised by the common law and exercised by the Crown… on advice” of the Prime Minister. The Court did not express a view on whether Her Majesty is obliged to act on that advice.
The Court then asserted a right to exercise supervisory jurisdiction over decisions of the executive, which was said to have ample judicial precedent. They cited the Case of Proclamations (1611) and Entick v Carrington (1765). Based on these and other precedents, the Court concluded that it is possible to determine the lawful limits of the exercise of a prerogative power to prorogue Parliament.
The Court noted its historical role in protecting:
‘Parliamentary sovereignty from threats posed to it by the use of the prerogative powers and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty.’ [para. 41]
The Court went on:
‘The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased.’ [para 42]
As a result, the Court determined that the power to prorogue cannot be unlimited and must, therefore be subject to judicial review.
On the legality of the prorogation, the Court concluded:
‘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.’ [para. 61]
Did the Court state what should happen next?
Having determined that the prorogation was unlawful the Court then set out remedies. The question became: is Parliament prorogued or not? The Government had argued that prorogation was a “proceeding in Parliament”. Based on the Bill of Rights 1688 proceedings in Parliament cannot be questioned in any court: this is a key element of Parliamentary privilege. The Court rejected that argument:
‘The prorogation itself takes place in the House of Lords and in the presence of Members of both Houses. But it cannot sensibly be described as a “proceeding in Parliament”. It is not a decision of either House of Parliament. Quite the contrary: it is something which is imposed upon them from outside’. [para. 68]
The Court concluded that Parliament has not been prorogued. However, the Court did not set out the implications of the Order. Rather the Court stated: ‘as Parliament is not prorogued, it is for Parliament to decide what to do next.’ [para. 70]
What next for Parliament?
Both Houses of Parliament will sit on Wednesday 25 September; the Commons at 11.30am and the Lords at 3pm. Although this is a Wednesday there will be no Prime Minister’s Questions. This is because Standing Order No. 22(5) requires that at least two days’ notice be given of questions for oral answer. In the Commons, the business of the House will begin with any urgent questions which the Speaker has decided to accept, followed by Ministerial statements.
Since the prorogation has been declared null and void the 2017-19 parliamentary session continues. As a result all Bills of the 2017 session which fell because they had not concluded their passage through Parliament at the time of the prorogation remain live.
There is a question regarding the Parliamentary Buildings (Restoration and Renewal) Bill. This was thought to have Royal Assent as part of the prorogation ceremony, and to have become the Parliamentary Buildings (Restoration and Renewal) Act 2019. Given that prorogation has been deemed null and void, it is likely that steps will be taken to ensure that the Royal Assent given to the legislation is validly signified to both Houses.
- Prorogation of Parliament, House of Commons Library.
- R (on the application of Miller) v The Prime Minister  EWHC 2381.
- Joanna Cherry QC MP and others v Advocate General for Scotland  CSIH 49.
- R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland  UKSC 41.
About the author: Fergal Davis is Brexit Editor in the House of Commons Library and a Reader in Public Law at the Dickson Poon School of Law, King’s College London.