The content of this blog draws upon some of the material in an article by Javier García Oliva, published in El Pais on 25th September 2019. Please see the link below.
The word “prorogation” doesn’t exactly trip off the tongue, and until recently, very few people had any reason to use it. Even now, when it is being flashed all over the news and social media, there is some confusion about what it actually means. What exactly is prorogation, and why has it caused so much trouble?
In short, is the technical name for closing down the legislature at the end of a “session.” Usually, a “Parliament” (i.e. stretch of time between General Elections) is divided into five sessions, and as might be expected with fixed term Parliaments of five years, each session tends to be roughly 12 months. However, there is no rule that this must be so. Instead of running out of a specified date, a session is brought to a close with an exercise of the Royal Prerogative. It is important to appreciate that although the power is theoretically vested in the Monarch, in reality they are simply acting at the direction of the Prime Minister, because the Queen does not make active political decisions of any sort. (Were she to try, it is probable that the legal role of a hereditary Monarch in the British Constitution would be rapidly and drastically reformed, as an individual wielding executive authority solely on the basis of birth-right is fundamentally incompatible with a liberal democratic context in the XXI century).
Crucially, it must be understood that: 1) prorogation is ordinarily a short-term situation; and 2) it is something far more extreme than a spell of recess for a holiday. In other words, it isn’t just pressing the pause button, but a complete suspension of the legislature. E.g, during a period of prorogation, MPs may not even ask written or oral questions of Ministers about governmental matters.
This explains why Boris Johnson’s recent attempt to prorogue Parliament was so controversial, and also ultimately why it was found to be unlawful. Many observers consider that the Prime Minister used Prorogation as a means of preventing Parliament from overseeing the Brexit process at a critical stage. It is certainly true that in terms of evidence before the judges, the Government failed to put forward any reason why Parliament needed to be shut down for five weeks, as opposed to the five or six days ordinarily needed to prepare the Queen’s Speech. In the absence of any compelling justification, the court had no basis upon which it could uphold a decision to dispense with Parliament. The judges ruled unanimously that the Prerogative can only be used in accordance with the Constitution, and that this application offended two core pillars of the British legal framework: Parliamentary Sovereignty and Parliamentary Accountability.
Parliamentary Sovereignty means that the Legislature is the supreme force in the juridical system, it can make whatever laws it chooses and both the courts and the executive must defer to its authority. The sister concept of Parliamentary Accountability is the tenet which states that the Prime Minister, and the remaining members of the Government, are collectively answerable to the legislature. Obviously, if the Government could simply dispense with Parliament indefinitely and at will, this function of oversight would be fatally undermined.
The effect of the judgment is that the purported Prorogation was invalid from its inception, and therefore, the current parliamentary session has not been terminated. The House of Commons Speaker John Bercow immediately announced that MPs would sit the following day, and Boris Johnson for his part has indicated that he will respect the ruling, despite having previously made far more ambivalent statements. He maintains that the decision was incorrect, and whilst he stops short of attacking the judges, asserts that their stance, along with the intransigence of Parliament, is making the task of negotiating a better Brexit deal a more difficult one.
For their part, the judges have been at pains to assert that this decision is not about how Brexit should happen, nor whether it should go ahead. Pre-empting anticipated criticism from anti-European sections of the press, Baroness Hale, correctly stressed that there was no question of trespassing on the territory of Parliament or the executive. Judges have for centuries exercised a supervisory jurisdiction over politicians, which inevitably means addressing questions related to controversial matters; nevertheless this does not make judges political, because they are simply assessing whether other actors have stayed within the scope of their authority. This is not about what should happen, it is about who has a constitutional mandate to decide upon what should happen. In this historic decision, rather than damaging the British settlement in relation to the Separation of Powers, the Supreme Court has bolstered it, by affirming Parliamentary Sovereignty and thwarting attempts to circumvent its effect.
It was no accident that Baroness Hale rooted her decision in the famous 1611 judicial finding that “the King hath no prerogative but that which the law of the land allows him”. The last time that the executive attempted to dispense with Parliamentary rule was slightly later in the Stuart era, and it ended in Civil War and the eventual execution of a King who refused to recognise the limitations of his powers. Not to mention the rather later case of some rather disgruntled British citizens in North America, who took exception to being denied access to Parliamentary democracy, which also didn’t end especially well for the Government in Westminster. All things considered, whatever strategy the Prime Minister adopts going forward, trying to bypass the legislature may not be the best move.
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R (Miller) v The Prime Minister [2019] UKSC 41
Preservando la supremacía parlamentaria (El Pais 24/9/19)
