Since prorogation ‘never happened’ what happens next?

The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.

Testing the limits of the prerogative

In a remarkably straightforward judgment, the UK Supreme Court has confirmed with one voice that the courts have jurisdiction to decide the extent and limits of prerogative powers, including the power to prorogue parliament. Drawing upon fundamental constitutional principles, the court formulated a legal standard by which the limits of the power to prorogue must be determined, as follows (para 50):

“…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.” (emphasis added)

The court decided that this test could be applied in practice with no greater difficulty than determining many other factual matters routinely decided by the courts.

APPLYING THE TEST TO THE FACTS

Applying the above test, the UK Supreme Court concluded without hesitation that “of course” the prime minister’s recent action in proroguing parliament had the effect of frustrating or preventing the constitutional role of parliament in holding the government to account. “This was not a normal prorogation in the run-up to a Queen’s Speech” and the effect on parliament was especially marked given how proximate the period of prorogation was to the UK’s potential exit from the EU on 31 October 2019. The court stated that “the circumstances here were…quite exceptional” and parliamentary scrutiny is especially vital in relation to events like Brexit, which are capable of fundamentally changing the UK constitution.

The next question was whether the government had a reasonable justification for prorogation in this case. The court prefaced its remarks by recognising that the government must be afforded “a great deal of latitude in making decisions of this nature” and therefore that only the reasons given were relevant, not any underlying motive. It nevertheless concluded that no reasonable justification had been put before it. In fact, “no reason was given for closing down Parliament for five weeks” even though “[e]verything was focussed on the need for a new Queen’s Speech” (usually prorogation before a Queen’s Speech lasts just a few days). This and the apparent failure to consider obvious matters, like the relative merits of prorogation and calling a recess, led the court starkly to decide that (para 61):

“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 9^th or 12^th September until 14^th October. We cannot speculate in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The decision of the government not to put forward further documentary evidence (if it existed) or a witness statement may be regarded with hindsight as fatal to its case. We will never know whether there were good reasons for that decision. Was it perhaps out of fear that this might become one of those exceptionally rare judicial reviews where the witness – perhaps the prime minister himself – is called to give live evidence?

What was the constitutional basis of the decision?

In examining the limits of the prerogative to prorogue parliament, the UK Supreme Court stated that prerogative powers are only effective to the extent that they are compatible with legislation and common law principles, including constitutional principles. The court then considered the effect of the “foundational principle of our constitution” – parliamentary sovereignty. It determined that parliament cannot be prevented by the government through the use of the prerogative from legislating for as long as the government pleases. An unlimited power of prorogation is therefore incompatible with parliamentary sovereignty. The court recognised, however, that parliament is not permanently in session and modern prorogations for short periods are common, stating (para 45):

“There can be no question of such a [short] prorogation being incompatible with Parliamentary sovereignty: its effect on Parliament’s ability to exercise its legislative powers is relatively minor and uncontroversial.”

To establish the limits of the prerogative, the court therefore turned to a second principle “no less fundamental to our constitution” – parliamentary accountability. It was on this that the outcome hinged. The court observed that (para 48):

“…the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model”.

Based on these considerations, the court forged the “without reasonable justification” test quoted above.

What are the implications?

The UK Supreme Court declared that the advice given to the Queen was unlawful, and it was outside the powers of the prime minister to give it. Therefore the order proroguing parliament was also unlawful. The court ‘quashed’ the order, meaning it was null and of no effect. It declared that “Parliament has not been prorogued” and that “it is for Parliament to decide what to do next”. In a memorable phrase in the summary she read out today in court, Lady Hale announced that “…when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper.”

In other words, legally speaking, parliament is still in session and there is nothing to prevent parliamentary business from resuming immediately. That is a political decision for parliament itself, and the court invited the Speaker of the House of Commons and the Lord Speaker to decide as soon as possible upon a way forward. It appears John Bercow has already announced that the 2017-2019 session will resume tomorrow, 25 September 2019.

The court also gave guidance that, in most circumstances, the prime minister’s desire to end one parliamentary session and begin another “will normally be enough in itself to justify the short period of prorogation [for a few days] which has been normal in modern practice” (para 51). The court said it would exercise caution in second guessing any justification put forward, because the prime minister should receive a degree of deference in his area of responsibility. Might the prime minister seek to prorogue parliament afresh, albeit for only the ‘normal’ few days? It would appear extraordinary for the prime minister to do something so politically incendiary at this juncture, and it would inevitably face a further judicial review. However, the UK Supreme Court does seem to have left open the possibility of briefly proroguing in order to deliver a Queen’s Speech. Boris Johnson has said that he is returning to London shortly from New York and will respect the court’s judgment, but it does not appear he has yet ruled a further prorogation out.

The wider implications may be significant. For example, only three carry over motions were passed for eligible bills before parliament was purportedly prorogued, so a range of bills, including all five Brexit bills, were understood to have fallen. If the parliamentary session never ended, however, logically those bills are still ‘live’. Will a temporary recess need to be agreed to allow for the Conservative party conference next weekend as would happen in a typical year? Will parliament’s first act be to seize control of the order paper again, and to what end – perhaps to legislate a new statutory control mechanism for use of the prerogative? It must be rather unsatisfactory for politicians that future prorogations are clearly open to challenge and their lawfulness rests on uncertain criteria: whether a prorogation is long enough to require justification, and whether the justification given is reasonable, and whether its effect is sufficiently serious to justify intervening.

The UK Supreme Court has clearly tried to limit its ruling to the very extraordinary circumstances that have arisen, calling the case a “one off”. Nevertheless, the terms of its judgment, particularly around the “without reasonable justification” test, seem to invite further litigation. That potentially includes claims brought by parties who wish not only to use the courts to uphold the constitution, but also to advance political objectives – even where they have not succeeded in doing so in parliament.

A version of this blog was published on LexisNexis on 24 September 2019.

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