The Prorogation Dispute of 2019: one year on

On 28 August 2019 an Order in Council was made providing that Parliament should be prorogued from some point between 9 and 12 September until 14 October 2019.

Why this was controversial?

This would have been the UK’s longest period of prorogation in modern times. It would have prevented Parliament from debating motions and legislation and from carrying out a range of other scrutiny activities normally carried out e.g. through select committees.

Why did the Government prorogue Parliament?

The Government argued that the 2017-19 session was already the longest session of the UK Parliament’s history and that it was entitled to use the Royal Prerogative in this way. It explained that it intended to bring forward a Queen’s Speech to refresh its legislative agenda, following the change of Prime Minister in July 2019.

Why did this end up in the courts?

The decision to prorogue Parliament was challenged in both the Scottish and the English courts. In both Cherry and Miller II it was argued that this prorogation of Parliament was unlawful. The Inner House of the Court of Session found both that the prorogation was justiciable and that it was an unlawful exercise of the prerogative: the power had been exercised for the improper purpose of “stymying Parliament”. By contrast the Divisional Court in England concluded that the matter was not a “justiciable” one and that the exercise of the power to prorogue Parliament was not susceptible to legal standards.

Supreme Court ruling

The UK Supreme Court heard appeals from both jurisdictions. It ruled unanimously that the prerogative power of prorogation was justiciable. However, in finding the prorogation was unlawful, it set out the legal test in different terms than those of the Scottish court.

The Supreme Court maintained that this long prorogation significantly interfered with the constitutional principles of parliamentary sovereignty and parliamentary accountability. Such an interference required a “reasonable justification”. On the facts the Court concluded the Government had not offered any justification for the prorogation’s length, let alone a “reasonable” one, and accordingly the decision to prorogue was unlawful.

Consequences of the judgment

The immediate consequence of the Supreme Court judgment was that the 2017-19 session was treated by the Parliamentary authorities as though it had never been ended in the first place. Parliament resumed sitting the following day. The session was eventually ended with a much shorter period of prorogation, from 8 October to 14 October 2019.

Beyond the events of 2019, Miller II/Cherry has a continuing significance. It establishes explicit legal limits on the prerogative power to prorogue, and makes it less likely that long periods of prorogation will be adopted in future. It has also revived debates about whether prorogation (like dissolution) should be put on a statutory footing, and if so what the constitutional rules for it ought to be.