Legal Articles

The Prorogation of the UK Parliament and the historic decision of the UK Supreme Court

Prorogation is intended to end a parliamentary session. This period of prorogation is not however the date the parliamentary session is ended. It is the period between the end date of a parliamentary session and the start of a new parliamentary session. It is good to take note of the fact that the current parliamentary session has been in effect since June 2017 (This is the longest parliamentary session in almost 4 centuries).

Obviously, the length of this parliamentary session is caused due to the urgency and importance of BREXIT which is still being discussed and debated in the UK parliament. Furthermore, normally the prorogation mechanism is instituted before the dissolution of Parliament.

The prorogation mechanism is not implemented by virtue of a vote in the House. So, ministers can neither vote in favour nor against the prorogation of parliament. The request for a prorogued period is made by the Privy council. This council is composed of ministers from both sides of the house, however, only a select number of senior ministers attend the meetings of the Privy Council. Jeremy Corbyn and other opposition MP’s are members of such a council but they do not attend the actual meetings.

A request for prorogation has to be approved by the Queen. In theory, the queen has the discretion to disallow such a prorogued period but this would lead to controversy within the House of Commons. Normally, a period of prorogation last only a week. This time around, the period of prorogation proposed by the Privy Council was that of 5 weeks (This includes a 3 week period of recess. Thus, in actual fact, the period of prorogation may be interpreted to be 2 weeks). Following the period of prorogation, a new parliamentary session commences with the Queen’s speech.

The effects of prorogation are what make the timing of the implementation of such a mechanism controversial. Upon the approval of prorogation all bills/legislation being discussed in parliament are put to an end. This came at a crucial moment in time for the United Kingdom, precisely at the moment the opposition was trying to pass legislation aimed at prohibiting a no-deal BREXIT. A period of prorogation at such a time meant that MP’s that did not agree with a no-deal BREXIT had 2 fewer weeks to try to pass legislation in the House.

The Supreme Court has however declared this prorogation of parliament to be illegal. This conclusion was reached when an analysis of the motive for such a period of prorogation was made. The Supreme Court ruled that it was against British law for the government to make a request for a period of prorogation with the intention of putting a stop to current talks about anti-no-deal legislation.

Furthermore, the longer period of prorogation meant that it would take 5 out of the 8 weeks left of discussion due that the fact that at the time, the date where BREXIT was to be finalized was that of the 31st of October. This is a historic landmark decision as Boris Johnson is the first Prime Minister in British history to have acted unlawfully in his suspension of parliament.

From a procedural standpoint, the manner in which the request for prorogation was made was completely lawful. It was made by the necessary entity empowered to request it (The Privy Council) and approved by the necessary person empowered to approve it (The Queen). However, the supreme court could not allow for such a mechanism to be used with the intention of restricting legislation and discussions which were against the agenda of the current government. The Supreme Court based its ruling on the fact that the government had not provided an adequate reason for a 5 week suspension of government. Naturally, this was because its reason for such a period of prorogation was totally unlawful.

Parliamentary sessions then resumed. The Speaker of the house John Bercow stated that parliament was not to convene and start anew like after any period of prorogation. He put an  emphasis on the fact that the discussions and bills that were being debated before this debacle had to be resumed with immediate effect.