Prorogation announced

Updated 4 September - additional link

Tuesday 27 August - A meeting of MPs took place on Tuesday (27 August) at Church House, Westminster and put forward a cross-party plan to use "whatever mechanism possible" to stop a no-deal Brexit being forced through - ITV News 27 August 2019.  The MPs agreed "on the urgency to act together to find practical ways to prevent no-deal ... "including the possibility of passing legislation and a vote of no confidence." The legislative route to stopping no-deal was preferred over the alternative but securing parliamentary time for such legislation is difficult given that the government normally has control over the agenda of the House of Commons.

The Church House meeting
took place against a politically difficult background.  The House of Commons rejected a "no-deal Brexit" but the new Johnson government, whilst claiming that it prefers to leave the EU with a deal, is prepared to take the UK out on 31 October without one even though that course is likely to have serious consequences for the UK's economy.  Also, recent months have seen considerable discussion about a possible prorogation of parliament as a strategy to enable the executive to have a free hand to deliver Brexit - see previous posts 12 June 2019 and 13 August 2019.

Wednesday 28 August - in a move causing political furore, the government struck!  Jacob Rees-Mogg MP (Lord President of the Council), Baroness Evans of Bowes-Park (Leader of the House of Lords) and Mark Spencer MP (Chief Whip) met with HM The Queen at Balmoral.  This Privy Council meeting issued an order that Parliament is to be prorogued - 28 August 2019 Orders Approved.

The Order prorogues Parliament no earlier than Monday 9 September and no later than Thursday 12 September 2019 to Monday 14th October 2019.  "The Lord High Chancellor of Great Britain to prepare a Commission accordingly."

Prorogation will end the current session of Parliament which has run from 13 June 2017 making it the longest session by sitting days since the 17th century.  The planned prorogation of 5 weeks is exceptionally lengthy.

Queen's Speech October - Parliament's summer recess ends on 3 September but the House of Commons was NOT intending to sit during political party conferences to be held in September / early October.  As matters now stand, the House will return (3 September) but will sit for only a few days prior to prorogation.  On its return on 14 October, there will be a Queen's Speech setting out the Johnson government's proposals.  The Government announcement 28 August states - 

"A central feature of the legislative programme will be the Government’s number one legislative priority - if a new deal is forthcoming at European Council - to introduce a Withdrawal Agreement Bill and move at pace to secure its passage before 31 October.

The decision to end the current parliamentary session - the longest in close to 400 years and in recent months one of the least active - will enable the Prime Minister to put a fresh domestic programme in front of MPs for debate and scrutiny while also ensuring that there is good time before and after the European Council for Parliament to further consider Brexit issues. Votes on the Queen’s Speech are likely to fall on Monday 21 and Tuesday 22 October."

Motivation?

The prorogation is therefore presented by the government as a routine event closing down one parliamentary session and starting the next even though the surrounding circumstances are far from routine given that UK membership of the EU currently ends on 31 October and the fact that it might be Brexit without any withdrawal agreement.  Normally a prorogation between sessions is of short duration - e.g. 2 weeks.  The ulterior motive for this lengthy 5 week prorogation appears to be a deliberate government ploy to secure a policy objective (Brexit - including no-deal) by removing a potentially awkward House of Commons from the political scene for as long as possible.

If, and at present it seems unlikely, an amended withdrawal agreement is reached with the EU then a Withdrawal Agreement Implementation Bill will have to pass through Parliament in the short time from 14 October to 31 October.  Such a bill was envisaged during Theresa May's time as Prime Minister but a bill was not published.

Serious issues.

I remarked in a previous post that the power of prorogation can be a device for use by despots. Those favouring "getting Brexit done" will doubtless welcome the move but it raises serious constitutional questions given that a prorogation Order can simply be made at a time of the Prime Minister's choosing without any reference to parliament.  Parliament, to which Ministers are accountable, can be simply swept aside to benefit the executive.

The Queen ought not to be blamed in any way for this although she played a role in the prorogation.  By constitutional convention - (not law) - she is bound to act on the advice of the Prime Minister.  In practice, the Queen has no choice.  Her agreement is a formality but Her Majesty has been placed in a "no win" situation.

Judicial Reviews:

A judicial review concerning prorogation is underway before Scotland's Court of Session - previous post.  It is also reported that judicial reviews have been commenced in the High Court - The Guardian 28 August 2019 and in Northern Ireland (BBC News 20 August).

Although one cannot doubt the ingenuity of the lawyers representing the various applicants, there is good reason NOT to be too hopeful about the outcome.

The Civil Service Union case (1984) held that in principle prerogative actions were open to judicial review.  That was a major legal development at the time but Lord Roskill said - "

"I do not think that that right of challenge can be unqualified. It must, I think, depend upon the subject matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another."

Although Lord Roskill referred to "dissolution of Parliament", the same idea of non-justiciability will have to be overcome if a court is to be persuaded to consider the applications relating to prorogation. These matters have traditionally been regarded as decisions of high policy which ought to be resolved in the political arena and not in the courts of law.

In R v Secretary of State for Foreign and Commonwealth Affairs Ex p. Everett [1989] QB 811 it was said that - "At the top of the scale of executive functions under the prerogative are matters of high policy, .... . Clearly those matters, and no doubt a number of others, are not justiciable. are generally not susceptible to judicial review."  (The case itself concerned the essentially administrative act of issuing a passport and it was held that this act was amenable to judicial review).

The matter has not stood still in the 35 years since the Civil Service case.  Today, the court tries to approach cases involving prerogative as though it were any other ministerial power. They will apply ordinary public law principles to its exercise, taking into account all the circumstances relevant to that exercise.  The fact however remains that there are undoubtedly areas where the courts will be wary of treading.

A case pointing in favour of judicial review is perhaps the Supreme Court decision in Barclay [2014] UKSC 54. 

Reform?

Ideally, the prerogative power to prorogue Parliament ought to be abolished and placed on a statutory basis so that at least the House of Commons has to approve a prorogation and its duration.  I do not expect this idea to receive a favourable wind given the undoubted power that the present system entrusts to the executive.

Links:

Previous posts on prorogation 12 June 2019 and 13 August 2019.

A House of Commons Research Briefing also examines the topic - Prorogation of Parliament 11 June - and notes that prorogation is a prerogative power "exercised by the Crown on the advice of the Privy Council. In practice this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to."

UK Human Rights blog 28 August - Judical review of prorogation of parliament launched

Saturday 31 August - additional links:

Speaker of the House of Commons - The Guardian 28 August

Financial Times 38 August - Boris Johnson's suspension of parliament is an affront to democracy

The Guardian 28 August - Shami Chakrabarti -  The cat is out of the bag - Boris Johnson's shutdown is unconstitutional

Professor Vernon Bogdanor - The Guardian 29 August 

The Guardian 29 August - Gina Miller - Proroguing Parliament sets a horrifying precedent. I'm going to court to stop it  - Other dictatorial moves may follow if Boris Johnson’s ruse is allowed to pass.

The Atlantic 30 August - Boris Johnson, Brexit, and Britain's Constitutional Quagmire

BBC News 31 August 2019 - Parliament suspension: Thousands protest across the UK

Sunday 1 September 2019 - further links:

BBC News - Barnier rejects demands for backstop to be axed

Monday 2 September:

Oxford Human Rights Hub - Paul Craig - Prorogation: Constitutional Principle and Law, Fact and Causation

Wednesday 4 September:

On 4 September, Lord Doherty ruled that the Court of Session could not review the exercise of the power to prorogue Parliament. An appeal is to be heard on Thursday 5 September by the Court of Session Inner House. See BBC News 4 September 2019.