What Is Prorogation?
Prorogation is the mechanism used to suspend both houses of Parliament and bring a parliamentary session to an end. To understand prorogation properly, we must have a firm footing on parliamentary procedure.
The Fixed-term Parliaments Act of 2011 provides that Parliament can sit for a maximum term of 5 years before its dissolution for a general election. Parliament can, of course, be dissolved within this term for an early general election, although it would require either of the following:
A two thirds majority vote in favour of a motion for a general election.
The passing of a motion of no confidence with no subsequent passing of a confidence motion.
Whatever the term Parliament sits, it is done so in sessions that usually last a year. The most recent exception to this is the current parliamentary session due to come to a close in September, which has run for more than two years.
The end of a session, and thus Parliament’s suspension, is set out in a royal proclamation. The same proclamation must specify the date for the opening of the next session, in which the Queen delivers a speech outlining the current Government’s legislative agenda.
What are the general effects of prorogation?
When Parliament is prorogued, neither the House of Lords or the House of Commons can sit. MPs and Peers cannot attend committee meetings, debate, discuss or introduce new laws. Any motions or bills - proposals for new laws or changes to existing laws - that were introduced in either chamber during the previous session are killed. Some Government bills can be carried over into the next session.
It’s important to note that prorogation has been used in the past as a strategic instrument to pass legislation that the House of Lords has resisted, and to avoid parliamentary scrutiny.
Who has the power to prorogue Parliament?
As it is a prerogative power, only the monarch can prorogue parliament. While this is technically so, it doesn’t quite reflect the practical and political reality. The UK’s unwritten constitution has reduced the role of the monarch in modern times to one that is purely ceremonial and politically neutral.
Instead, it is upon the advice of the functional Privy Council - advisors to the Crown made up of small group of Government Ministers - that prorogation is proclaimed. These advisors request the suspension of parliament and propose the timetable for it.
Can the Queen refuse the request?
Technically, yes. However, as mentioned before, the Queen’s role is purely ceremonial. In her capacity as head of state, convention - shout out to our unwritten constitution, once more - dictates that the Queen must acquiesce.
In this sense, the Queen has no political agency and the royal proclamation to prorogue Parliament is nothing more than a formality. In fact, anything other than acquiescence is likely to provoke a constitutional crisis.
How long does it last?
There is no real framework, other than convention, for the timetable of Parliament’s suspension. According to the House of Commons Library, in a briefing paper titled Prorogation of Parliament, prorogation has not exceeded a period of three weeks in the last 40 years.
Since 2015, Parliament has been prorogued for no longer than a week. In 2014 it was prorogued for 20 days, although this coincided with EU parliamentary elections and with the Whitsun recess (May-June).
What’s all the outrage about?
The current prorogation furore is rooted in the Government’s decision, taken in August, to request the suspension of Parliament for 5 weeks from the week beginning 9 September to 14 October. This would have made it the longest prorogation since 1945, and it came at a crucial time with the deadline for leaving the EU - 31 October - on the horizon.
The Government’s move has been widely seen as a way of limiting scrutiny of its Brexit agenda and limiting the role of Parliament in the application of said agenda. It has been criticised as undermining Parliament’s sovereignty and, in turn, the representative democracy on which it stands.
Here’s a roundup of the events leading to prorogation
On Wednesday 28 of August, Boris Johnson sent a letter to MPs announcing that he requested the Queen suspend the current parliamentary session in the second sitting week of September, and commence the next session on 14 October.
Crucially, the letter placed a lot of emphasis on the necessity of a Queen’s speech and the need to lay out the new Government’s legislative agenda. This has been the line towed by Government officials in response to criticism of the move.
In the background, a Privy Council meeting was under way, in which the Leader of the House of Commons and Lord President of the Council Jacob Rees-Mogg, Leader of the House of Lords Natalie Evans, and the Chief Whip Mark Spencer requested and advised on proroguing Parliament. Prorogation was thereafter granted by the Queen.
What did the PM say?
Boris Johnson had argued that MPs would have plenty of time to debate and discuss Brexit. In fact, the five week suspension period was to overlap with party conference season, for which a recess of three weeks was scheduled. The amount of time that Parliament lost would have been relatively small.
However, Parliament could have voted to cancel the recess, an option that MPs had previously considered. This would have afforded them ample time to debate, discuss and introduce legislation.
The Fall Out: Legal Challenges
The legality of the prorogation was challenged in the High Courts of England and Wales, Scotland, and Northern Ireland. Following conflicting verdicts, all three cases were appealed in the Supreme Court, where 11 Justices ruled the prorogation unlawful and its effects null and void.
In Parliament’s official records the September-October prorogation has been expunged. It’s as if it never happened. In practice this means that Parliament will continue sitting until such a time that a recess, dissolution or lawful prorogation is enacted.
We’ll cover the details of the legal challenges in a separate article.