A year ago, the UK Supreme Court unanimously declared that Parliament had been unlawfully prorogued. This unprecedented judgment raised fundamental questions about the relationship between the legislature, the executive, and the courts in the UK.
Two recent reports from parliamentary committees recommend the law of prorogation should be reviewed as part of a wider statutory review of the Fixed-term Parliaments Act 2011.
This Insight explains what the current law of prorogation is, why some experts think it should be reformed, and what some of the options for reform might be.
What is prorogation?
Prorogation is the process by which a parliamentary session comes to an end and a new one begins. It’s a prerogative power, exercised by the Monarch on the advice of government ministers. Once prorogation takes place, parliamentary business such as unanswered written questions, future motions, and Bills under consideration, usually “falls” unless special arrangements are put in place.
While Parliament ‘stands prorogued’ no business happens in the Commons and Lords Chambers, and parliamentary committees cannot take formal decisions. In that period Parliament cannot pass or repeal laws and is limited in its ability to scrutinise the Government.
What are the legal limits on prorogation?
There are established statutory restrictions on prorogation. Some older Acts, for example, require Parliament to sit “frequently” (e.g. the Bill of Rights ). Other Acts require Parliament to be summoned back early if the Government exercises certain powers (e.g. the Civil Contingencies Act 2004). Other Acts ensure Parliament is sitting by introducing mandatory items of future parliamentary business (e.g. the Northern Ireland (Executive Formation etc.) Act 2019).
Over and above these limits, there is now an established common law restriction on prorogation. In the Miller II/Cherry case, the Supreme Court ruled 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.
Although this does not impose a hard limit on a prorogation’s length, it probably makes long prorogations (especially those much longer than a week) more difficult to justify as a lawful restriction of Parliament’s constitutional functions. Whether a future prorogation is lawful would have to be judged on its own circumstances.
Reaction to the Supreme Court judgment
The Supreme Court judgment divided opinion in the legal academic community. Some, such as Professors Richard Ekins and Martin Loughlin, argued the Supreme Court decision was wrong, and that the English Divisional Court’s original decision (that prorogation could not be judged against legal standards because it was a matter of ‘high policy’) was correct. Others, such as Professors Paul Craig and Meg Russell, as well as former Supreme Court judge Lord Sumption, have strongly supported the Supreme Court’s conclusions.
Proposals to reform prorogation law
Some of those who disagree with the judgment have called for the law on prorogation to be changed. However, reforms have also been suggested by those who agreed with the judgment.
In October 2019, the Public Administration and Constitutional Affairs Committee (PACAC) heard evidence from a range of experts on the law of prorogation. The committee asked whether the law should be put on a statutory footing (instead of being a prerogative power) and if so, what the rules should be.
Three different ‘models’ for reform emerged in those discussions:
1. Prevent future involvement of the courts
Professor Richard Ekins of the University of Oxford and Policy Exchange’s Judicial Power Project is a critic of the Supreme Court judgment. He told PACAC that, as a general rule, legislating on prorogation would be “unwise”. However, if prorogation was to be constrained by legal limits, he believes they should be set by Parliament rather than the courts. He suggested that an Act of Parliament should be passed declaring that prorogation is a “proceeding in Parliament.”
This would explicitly override the ruling of the Supreme Court. It would prevent the courts in future from “questioning” the validity of prorogation. Article IX of the Bill of Rights states that proceedings in Parliament shall not be questioned in any court of law.
2. Prior parliamentary approval of prorogation
Professor Meg Russell, of UCL’s Constitution Unit, welcomed the Supreme Court judgment but argued it is undesirable to leave questions about prorogation to the courts. She suggested to PACAC that the power to prorogue Parliament should be statutory, and should not be exercised unless and until a proposal to prorogue has been approved by Parliament. This would transfer the constitutional decision on prorogation from the executive to the legislature.
This suggestion was also endorsed by Lord Sumption.
3. Letting Parliament “unprorogue” itself
Professor Anne Twomey, of the University of Sydney urged caution against seeking to codify the law on prorogation, stating there was a benefit in the “flexibility” of current arrangements.
However, Professor Twomey suggested another way of keeping these disputes out of the courts, while protecting Parliament’s constitutional role. She argued the UK could borrow from other Westminster systems and give Parliament a power to “unprorogue” itself if the need arose. For example, Parliament might be summoned back if an absolute majority of MPs signed a formal petition to that effect.
Earlier this month, the Lords Constitution Committee and PACAC both published reports into the Fixed-term Parliaments Act 2011. These reports anticipate a statutory review, which the Government must set up before December 2020.
Both committees have suggested the review’s remit should include looking again at the law of prorogation, given how closely it interacts with the statutory rules on dissolution.
- A Question of Confidence? The Fixed-term Parliaments Act 2011, Lords Constitution Committee, September 2020.
- The Fixed-term Parliaments Act 2011, Commons Public Administration and Constitutional Affairs Committee, September 2020.
- The Prorogation Dispute of 2019, House of Commons Library, September 2020.
- The Prorogation of Parliament, House of Commons Library, June 2019.
About the authors: Graeme Cowie is a constitutional law researcher with the House of Commons Library. Professor Adam Cygan of the University of Leicester is a Parliamentary Academic Fellow working with the House of Commons Library.