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Decoding The UK Supreme Court Decision On Prorogation Of Parliament

Joseph Sebastian
25 Sep 2019 7:31 AM GMT
Decoding The UK Supreme Court Decision On Prorogation Of Parliament
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Prorogation marks the end of activities of a parliamentary session without dissolving the parliament. During prorogation, the affairs of the Parliament comes to a standstill with all motions, unanswered questions, and bills not yet assented, will automatically lapse, unless a "carry-over motion" allows for business to resume in the next session. In United Kingdom prorogation is a power under the Royal Prerogative and is ordered by the monarch under advice of the Privy Council, which in essence is the Prime Minister.

Imbued in tradition and permeated with political potential, the concept of prorogation in England has a rich history. Prorogation has been on more than one occasion used as a crafty manoeuvre to shut the doors on a parliamentary session and is an alluring tool for politicians, eager to end pending legislations they don't support. The use of prerogative powers such as the power to prorogue the parliament was historically exercised by monarchs to "get around" the cumbersome process of a democratic practice.

Proroguing as a tactic to avoid parliamentary scrutiny was used in the 15th century for the first time by Queen Elizabeth I, the virgin queen. The norm during those times was to summon the Parliament for brief periods to approve the taxes and royal expenditures and show the royal boot to the parliament, after approval of expenses. In 1578 the parliament was prorogued to avoid a public debate of the Queen's courtship with Francis, Duke of Anjou.

History of Prorogation

Perhaps the most famous proroguing king from history is Charles I of England, who grew weary of a parliament which did not support his foreign and taxation policy and ordered the dissolution of parliament in March 1629. This led to ten years of extra-parliamentary rule in England and Wales commonly referred as Charles I's Personal Rule or the 11 Years' Tyranny. The prorogation by Charles I, fuelled a civil war and the eventual execution of Charles I for treason.

King Charles II followed in the steps of Charles I and prorogued the Cavalier Parliament in December 1678 to prevent the process of impeachment of the Earl of Danby. Thereafter the King dissolved Parliament in January 1679 and called a new Parliament. This new parliament, known as the Habeas Corpus Parliament, was prorogued on 27th May 1679 to prevent passing of the Exclusion Bill to exclude James II, then Duke of York from succeeding to the Crown of England. The next Parliament was summoned in July 1679, but did not meet until October 1680. King Charles II prorogued this parliament on 10 January 1681 to prevent proceedings to impeach certain judges. This parliament was also dissolved on 18 January 1681 and a yet another new parliament was called to meet at Oxford. This Oxford Parliament only met from 21 to 28 March 1681, when it too was dismissed by the king.

These actions by Charles I and Charles II, proroguing the parliament were pivotal reasons for the promulgation of Bill of Rights 1689, wherein article 1 states; "the pretended power of suspending of laws of the execution of laws by Regal Authority without consent of Parliament is illegal"

Prorogation happened yet again in 1831 during the crisis that surrounded the Reform Act, which redefined the concept of suffrage and democracy. King William IV, though initially reluctant went in person to the British Parliament to declare the prorogation.

After the Second World War, the government headed by Prime Minister Clement Attlee decided to amend the Parliament Act of 1911 and reduce further the power of Lords. To circumvent the resistance of the reforms by the Lords, a short session of Parliament was convened, which began on 14 September and ended on 25 October 1948 by proroguing. This short session ensured that the mandatory "three sessions" for passing a bill was adhered to and Parliament Act of 1949 came into existence.

In 1997 two Conservative MPs were accused of taking money in return for submitting questions to Parliament. The "Cash for Questions" affair led the then Prime Minister John Major to establish the "Committee on Standards in Public Life", whose report was scheduled to be delivered before the next General Election. Faced with the imminent publication of the report, the Prime Minister opted for an early prorogation, leaving an unusually long time period before polling day in order to avoid embarrassment. On that occasion, the prorogation was on Friday, 21 March and was followed by a general election on 1 May, resulting in a change of government.

Boris Johnson's Prorogation

In the latest event of prorogation, Prime Minister Boris Johnson, advised her Majesty the Queen on 27th or 28th August 2019 that the parliament should be prorogued from a date between 9th and 12th September till 14th October 2019. Her Majesty, the Queen approved the prorogation acting on the advice of the PM.

This suspension of the parliament comes at the backdrop of Brexit attempt, which has seen the end of two prime ministers, Mr David Cameron and Ms Theresa May as no withdrawal agreements have been approved by the United Kingdom Parliament.

The modus to leave the European Union is contained in Article 50 of the Treaty on European Union which provides that any member state may withdraw from the union on the basis of its own constitutional requirements, after notifying the Union of its intention. The European Union must then negotiate and conclude an agreement with the member state setting out the arrangements for its withdrawal, taking account of the framework for the future relation of the member state with the European Union.

On 2nd October 2016, Ms May (the then PM) announced her intention to give notice under Article 50 by the end of March 2017. This was successfully challenged before the United Kingdom Supreme Court and the judgment R (Miller) versus Secretary of State for Exiting the European Union [2017 UKSC 5] was delivered emphasising that the PM cannot alone decide to exit from European Union without an Act of Parliament. The Judicial pronouncement had the Parliament respond by enacting European Union (Notification of Withdrawal) Act 2017, which received Royal assent on 16th March 2017 and authorized the PM to give the notification for exit from European Union. Subsequently, the then PM, made notification of exit from European Union on 29th March 2017.

In the meantime, the Parliament of United Kingdom promulgated the European Union (Withdrawal) Act of 2018 [Withdrawal Act of 2018], for paving the legislative steps required for United Kingdom laws for leaving the European Union and designated the "Exit Day" as "29th March 2019". The Withdrawal Act of 2018, repealed the European Communities Act 1972, which provided for inclusion of United Kingdom to the European Union. Further the Withdrawal Act 2018, Section 13 mandates Parliamentary approval for any withdrawal agreements reached by the Government.

The withdrawal agreement setting out the terms of a smooth exit from European Union and a political declaration setting out the framework for future relationship to be negotiated with European Union were drawn by 25th November 2018. However, this agreement was rejected thrice by the House of Commons on 15 January 2019, 12 March 2019 and 29th March 2019, within the prescribed exit day.

Thereafter, the parliament passed the European Union (Withdrawal) Act 2019 on 8th April 2019 and the Prime Minister sought extension of time for exit from European Union, which was granted and time extended till 31st October, 2019. Thus, under Article 50 of the Treaty on European Union and the Withdrawal Act 2018, the United Kingdom will leave the European Union on 31st October 2019, whether or not there is a withdrawal agreement, subject to European Union (Withdrawal) Act of 2019. But since the possibility to arrive at a consensual withdrawal agreement and having it passed before 31st Oct 2019 was herculean and a near impossibility, the PM appointed a cabinet office minister to prepare a no-deal exit. This no-deal exit is clearly not in favour by the House of Commons. Thus, at this juncture, faced with a dead lock, the PM advised Her Majesty the Queen to prorogue the parliament, so as to avoid further debate till the run up-to the exit on 31st October 2019.

Challenges In Court

This action was challenged before the High Court of England and Wales and also Court of Session in Scotland. The High Court of England and Wales in its judgment dated 11th September 2019, dismissed the challenge holding that prorogation of parliament cannot be the subject of judicial review [ (2019) EWHC 2381(QB)]. In a judicial proceeding held simultaneously, the Court of Sessions of Scotland refused the petition vide its judgment dated 4th September 2019. On appeal, The Inner House of the Court of Session of Scotland (Highest Court in Scotland) vide judgment 11th September 2019, [ (2019) CSIH 49] declared the prorogation to be unlawful and that the advice given to Her Majesty was motivated with improper purpose of stymying Parliamentary scrutiny of the Executive.

Both the judgments were challenged before the Supreme Court of United Kingdom. The Court considered the following questions on the action of the Government in declaring prorogation of parliament as null and void.

1. Whether the lawfulness of the Prime Minister's advice to Her Majesty is justiciable?

Answering in the positive, the Court explained that courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As far back as 1611, the court has held "the King [who was then the government] hath no prerogative but that which the law of the land allows him". The Court further considered the existence and extent of the prerogative power to prorogue and the limitations to challenge this prerogative power and held that "courts have jurisdiction to decide upon the existence and limits of a prerogative power to advise Her Majesty to prorogue the Parliament".

2. What are the limits to the prerogative power of the Government to prorogue?

Two fundamental principles of the constitution of United Kingdom, namely Parliamentary sovereignty and Parliamentary accountability were considered relevant by the Supreme Court in determining the limits of the power to prorogue. It was held that a decision to prorogue (or advise the monarch to prorogue) 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.

3. Whether the prorogation of the United Kingdom parliament in this instance have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification?

Answering the question in affirmative, the top Court held that "this instant prorogation is not a normal prorogation in the run-up to a Queen's Speech. It prevented Parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31st October 2019. The prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances when the fundamental change, which was due to take place in the Constitution of the United Kingdom was about to happen. Parliament, and in particular House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The Supreme Court on further analysis held that there is no justification coming forth from the Government for declaring prorogation".

The Court concluded that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

4. The last and final question poised before the Court was the legal effects of the findings of the Court to questions 1 to 3.

The Supreme Court as answer to questions 1 to 3 declared that the advice of the PM to prorogue was justiciable, was unlawful, void and without effect. The contention of the Government that prorogation was a "proceeding in Parliament" which, under the Bill of Rights of 1689 cannot be impugned or questioned in any court was held to be not correct. The Supreme Court held, "Prorogation is not a proceeding in Parliament. It takes place in the House of Lords chamber in the presence of members of both Houses, but it is not their decision. It is something which has been imposed upon them from outside. It is not something on which members can speak or vote. It is not the core or essential business of Parliament which the Bill of Rights protects. Quite the reverse: it brings that core or essential business to an end." It was further held that, "It is for Parliament, and in particular the Speaker and the Lord Speaker to decide what to do next. Unless there is some Parliamentary rule of which we are unaware, they can take immediate steps to enable each House to meet as soon as possible."

This unanimous judgment of 11 Justices of the United Kingdom Supreme Court comes at a crucial time of the countries history when jurisprudence from United Kingdom depicts a long story of non-interference in executive matters by the Judiciary. The theory of separation of powers is followed strictly by the United Kingdom Courts and rarely does a Court intervene in acts done under the prerogative / discretionary powers of the monarch. But at this instance, deviating from the self-imposed attitude of refrain, the top court placed the terms and conditions of Brexit, which is a major political, economic and social dilemma, to the wisdom of the Parliament of the United Kingdom. 

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