by Mark Elliott and Stefan Theil
The House of Lords Constitution Committee is currently examining constitutional safeguards in the UK, with a view to identifying both strengths and weaknesses in the system. Given the pressure under which many constitutions around the world now find themselves – not least in the face of the global rise of populism – the Committee’s inquiry is timely.
In the written evidence we submitted to the inquiry, we examined the capacity of the government to prorogue (or suspend) Parliament. We chose to focus on that issue for two reasons. First, the prorogation power is, in itself, a highly significant one that, if misused, risks undermining fundamental constitutional principles. Second, the constitutional issues that arise in relation to prorogation demonstrate in microcosm a much wider set of concerns about the fragility of the UK’s constitutional arrangements.
Constitutional context
Many constitutions proceed on the basis of a cautious – but arguably well-founded – assumption about human nature: that those with their hands on the levers of power might well yield to the temptation to overreach or otherwise abuse their authority. The UK constitution begins from a different premise. As William Gladstone observed in the late 19th century, the UK’s system ‘presumes, more boldly than any other, the good sense and good faith of those who work it’. A century later, Peter Hennessy would coin the phrase ‘the good chap theory’, arguing that – thanks to shared cultural norms – those in positions of power ‘knew in their bones what was proper and improper’: ‘[t]hey carried checks and balances in their metabolism’.
But even if that was once true, is it true today? David Feldman has pointed out that ‘relying on the moderation and shared ethical sense of political elites’ is defensible only if the shared norms that Hennessy invoked remain deeply shared. Yet, as Feldman goes on to note, ‘the consensus concerning reasonable limits to the use of governmental and legislative power has become weaker’, thus ‘allowing political rhetoric and policy to move away from the middle ground’. In such circumstances, it becomes necessary to question the wisdom of building a constitution on the assumption that those in authority will exercise appropriate self-restraint. Feldman goes as far as to argue that ‘the continuing acceptability of the legal theory of parliamentary sovereignty’ turns upon political actors’ willingness to exhibit such moderation. Our argument is more modest: that a unilateral executive power to suspend the legislature’s operation is unwise. The existence of a functioning legislature should be entrusted to arrangements more robust than the increasingly unworldly assumption that the executive branch can necessarily be trusted to wield its power responsibly.
Prorogation brings a parliamentary session to a formal close by ending all business and placing Parliament in recess until the next session commences or Parliament is dissolved. It is a personal prerogative of the Monarch exercised on the advice of ministers. Prorogation is facilitated through an announcement to both Houses that Parliament should be prorogued until a specified time. Bills that have been duly passed by both Houses are granted royal assent, and some business may be carried over to the next session under Standing Orders. But while Parliament is prorogued, legislation cannot be enacted. The policy or conduct of the government cannot be debated or scrutinised, and yet, the work of the government can continue largely unabated.
Prorogation powers have been shaped by some limited statutory requirements. First, Parliament must be summoned in the event of the demise of the Crown or where a state of emergency is declared, thereby cutting short any prorogation period. For obvious reasons, it will be rare for prorogations to be meaningfully restricted as both scenarios envisioned are rare events. Second, the Prorogation Act 1867 places the extension of a prorogation period – but, crucially, not the initial prorogation – on a statutory footing and provides some limitations.
Current modes of control
There are three principal ways in which the executive’s use of the prorogation power is to some extent constrained.
First, pragmatic considerations arise: there are some things that the executive may wish or need to do that it cannot do while Parliament is prorogued. Enacting primary legislation is an obvious example. Another concerns financial matters. The executive depends on Parliament for funds, given the need for parliamentary involvement through the annual enactment of supply and appropriation legislation. Yet, while not insignificant, such considerations do not rule out periods of prorogation that, individually or collectively, might seriously impede the discharge of Parliament’s constitutional functions – including overseeing the executive and holding it to account.
Second, a large body of consistent constitutional practice in relation to the prorogation power arguably gives rise to a constitutional convention that regulates its exercise. Long practice suggests that minsters advise the monarch to prorogue only when doing so serves a relevant purpose (such as facilitating the end of a parliamentary session and the beginning of a new one). The underlying principle is that Parliament ought to be incapacitated from carrying out its normal constitutional functions only when there is an appropriate reason for such incapacitation. Viewed thus, the five-week prorogation that was sought in 2019 – and which the Supreme Court subsequently held to be unlawful – was, given its excessive duration and the lack of any justification, a breach of convention.
Should Queen Elizabeth II therefore have declined to follow ministerial advice on that occasion? An obvious objection to such a course is that another convention, itself underpinned by democratic principle, provides that the monarch should act on ministerial advice. A constitutionally assertive Monarch might take the view that improper advice to prorogue can be ignored: that the ministerial advice convention is nuanced enough to avoid rendering the monarch an automaton in the face of advice that is itself constitutionally egregious. But while there is a certain – it might even be argued compelling – logic to such an argument, the political reality is that its invocation would almost certainly plunge the Monarch into deep political controversy. It would therefore be naïve to rely on the possibility of monarchical assertiveness as a safeguard against abuse of the prorogation power.
Third, the Miller II case demonstrates that that power is subject to judicially enforceable legal limits. The Supreme Court held that the limits of the prorogation power fall to be determined by reference to the principles of parliamentary sovereignty and parliamentary accountability. The power does not extend to frustrating or preventing the discharge of the constitutional functions implicit in those principles absent reasonable justification. This was doubtless an important judgment. But its implications are potentially very limited. It was easy in Miller II for the court to conclude that there was no ‘reasonable justification’ for the prorogation in question because the only reason the government offered related to the preparation of a Queen’s speech. It made no attempt to explain why such a long prorogation was needed. If a relevant justification had been offered, the court acknowledged that judicial evaluation of its reasonableness would have been limited by the fact that ‘the decision whether to advise the monarch to prorogue Parliament falls within the area of responsibility of the Prime Minister’, that ‘matters of political judgement’ might be involved, and that the court would therefore have to proceed with ‘sensitivity to the responsibilities and experience of the Prime Minister’. This does not render Miller II irrelevant when it comes to considering the availability of constitutional protection against improper use of the prorogation power. But nor should it lull us into a sense of what would likely prove to be false security.
Potential reform
A limited and incremental legal reform could retain the prorogation power as a personal prerogative of the Monarch but provide some statutory restrictions around ministerial advice. Such an approach could be modelled on the Constitutional Reform and Governance Act 2010 and how it placed some limitations on treaty ratification. The Act preserved the prerogative power to ratify treaties but provided in ss 20-25 a range of restrictions and conditions. Notably, s 20 of the Act prevents a treaty being ratified if parliament opposes ratification within 21 sitting days through resolution. Alternatively, the Act could require that advice to the Monarch on prorogation must be accompanied by a resolution from the House of Commons that it is content to be prorogued at this time for the time period envisioned.
The preferable solution would be to replace the prerogative power to prorogue with a statutory power, the exercise of which is squarely tied to consent from the House of Commons. As with the more limited reform considered in the previous paragraph, the obvious instrument is a resolution of the House of Commons that expressly records consent to the prorogation. The Act should exclude the possibility of extending the recess period without a further resolution from the House of Commons, whether in anticipation of a general election or not. This would be accompanied by the repeal of the Prorogation Act 1867.
Both approaches to reform would curtail the possibility of a controversial prorogation, instigated by a government to opportunistically avoid accountability, prevent its own loss of power, or frustrate the passage of undesired legislation.
Comparative dimension
The definition and effects of prorogation are largely identical in most Westminster style systems, but constitutional law and practice have seen significant divergences. Most commonly, constitutional provisions require parliamentary sessions at regular intervals, for instance, at least every 12 months and hold contrary ministerial advice unlawful (Barbos, Fiji, India, Jamaica, Malta, Malysia, Pakistan, Singapore, Sri Lanka, Trinidad and Tobago). Less frequently, the head of state or a presiding officer is constitutionally empowered to recall parliament if a specified number of members of parliament wish to test the confidence in the government (Fiji, Kiribati, Pakistan).
Examples of politically controversial use of prorogation powers notably arise from Canada, which has not adopted express legal limits on prorogation. Canadian Prime Ministers have repeatedly and controversially advised the Governor General to prorogue the Canadian Federal Parliament seemingly motivated primarily by political expedience. In late 2008 Canadian Prime Minister Stephen Harper’s minority Conservative government avoided a motion of no confidence (which they were almost certain to lose) in this manner. The advice to prorogue was issued to the Governor General only sixteen days into the current session of parliament and after reports that opposition parties had produced a written agreement to topple the Harper government and sustain an alternative minority government under the Liberal party. Prime Minister Harper relied on prorogation to avoid parliamentary scrutiny again less than a year later, this time to frustrate a committee of inquiry into alleged torture of Afghan prisoners. More recently, Prime Minister Trudeau requested a several months long prorogation, in essence, to avoid parliamentary scrutiny during a leadership contest in the ruling Liberal Party following his resignation.
Conclusion
The constitutional risks presented by the prorogation power and the inadequacies of existing modes of mitigation are important in themselves, given the highly consequential nature of the power and the fundamentality of the constitutional principles that can be jeopardised by its improper use. But the issues raised by prorogation also serve to illuminate a much more systemic set of concerns about the reliance of the UK constitution on political actors’ willingness to observe norms that are often either legally unenforceable or subject to relatively limited judicial enforcement given the courts’ tendency to defer to executive judgement in politically charged contexts. Absent reform of the basic architecture of the UK constitution, the dominating feature of which is the principle of parliamentary sovereignty, the scope for addressing the system’s ultimate reliance upon political restraint is limited. But that does not mean that available opportunities to do so – such as placing the prorogation power on a statutory footing or making its exercise subject to statutory conditions – should be passed up. Indeed, it makes the case for seizing such opportunities all the more compelling.
