Sunday, 22 September 2019

Prorogation ~ Australia


The present prorogation of the UK Parliament is particularly controversial because of the imminence of Brexit and the fact that no withdrawal agreement has been reached. The present House of Commons is opposed to withdrawal from the EU without an agreement and has legislated to try to prevent that taking place without its consent - previous post.  The government, headed by Prime Minister Boris Johnson, has stated that it prefers the UK to leave the EU with an agreement but if one cannot be secured then Brexit should still take place on 31 October.  The prorogation has been challenged in the courts and judgment of the Supreme Court is expected in the coming week - previous post.

The power to prorogue
Parliament exists as part of a considerable set of "Royal Prerogative powers" retained, technically-speaking, by the Crown but, in practice, exercisable by Ministers who are supposed to be accountable to Parliament.  Prorogation removes that accountability for the duration of the prorogation which, in this case, is from 9 September to 14 October.

We saw the mechanics of the prorogation when the Privy Council met on 28 August and issued the prorogation order. The meeting was attended only by HM The Queen, the Lord President of the Council (Jacob Rees-Mogg), Baroness Evans of Bowes Park, and Mark Spencer (Chief Whip). The Order was nodded through since, as a Constitutional Monarch, the Queen is required by convention to accept the advice given to her by the Prime Minister.

Prorogation Order - Privy Council 28 August 2019 Orders Approved.

Australia:

Interestingly, Australia has the Commonwealth of Australia Constitution Act setting out formal constitutional arrangements.  The Act, dating from 1900, provides for the Legislative Power, a Governor-General, the Executive Power, and the Judicial Power:

Section 1 - Legislative power

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth.

Section 2 - Governor-General

A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

By section 5, the Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.

When there has been a general election, the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs.  [Note: The UK has no such requirement].

By section 6, there shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

Section 61 - Executive Power

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

The Governor-General therefore has a constitutional, if ill-defined, role in the "maintenance of the Constitution."

Section 71 -Judicial power and Courts

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Discussion:

The UK lacks such a constitutional document and, predictably, there have been some calls for a "written" or formal constitution to be put in place.  The thinking appears to be that such a codification would prevent problems such as the type of prorogation that we are now in.  Whether it would do so or not would, obviously, depend on precisely what the formal constitution included.

It has to be doubted whether a formal constitution is a panacea removing all problems.  Far from it!
More problems might be created including perhaps politicisation of the judiciary who would have to pronounce on the meaning of the constitution itself.

Some see the present Supreme Court of the UK as an embryonic constitutional court and in some respects that may be true.  For example, there are cases where the Supreme Court has been called upon to adjudicate upon legislation dealing with the devolution of power to Scotland, Wales, and Northern Ireland.  The present prorogation litigation also presents a clear question of law bearing on our constitutional arrangements relating to the role of the executive versus parliament.  Nonetheless, the court is not being called upon to interpret and apply a formal constitution.  Rather the court has to find and apply to the facts the relevant principles of law.  It does NOT follow from the fact that a judgment may have political consequences that the court itself is "political."

Turning to the Australian position it appears that a similar prorogation could take place. The Australian Prime Minister would advise the Governor-General to prorogue Parliament and the Governor-General would normally do so.

Prorogation in relation to Australia is discussed extensively in an article by Eliot Oliver and written with the assistance of Professor Anne Twomey (University of Sydney) - Proroguing the Parliament of Australia:  The effect on the Senate and the conventions that constrain the prerogative power.  The article examines the operation of the conventions that constrain the Governor-General's power to prorogue. Prorogation generally is exercised on the advice of the Prime Minister. However, the article contends that where a Prime Minister seeks to prorogue Parliament to avoid a vote of no confidence, the Governor-General will have a discretion to reject the advice. It may also be open to the Governor-General to reject an advice to prorogue where the purpose is to avoid scrutiny of a fundamental constitutional illegality.

Whether or not the answer for the UK lies in a formal constitution, reform of the power of prorogation appears to be required. It is truly remarkable that a Prime Minister can simply acquire an Order to remove the very body to which he is accountable. Perhaps the current prorogation prerogative should be abolished and replaced by an Act of Parliament placing the control of prorogation with parliament itself.  But, I do not envisage that there will be any rush to do that no matter what the outcome of the prorogation litigation.  The present system, for all its unsatisfactory nature, suits politicians of all parties once they are in power.

Australia - Common questions about prorogation

On the question of a written constitution for the UK see The Norton View 20 September 2019


2 comments:

  1. Good post but I was wondering if you could write a litte more on this subject? I'd be very thankful if you could elaborate a little bit more. Appreciate it!
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    Replies
    1. Thank you. It is a topic to which I am likely to return in the near future.

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