2019 British prorogation controversy
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On 28 August 2019, the Parliament of the United Kingdom was ordered to be prorogued by Queen Elizabeth II on the advice of the Conservative prime minister, Boris Johnson – advice which was later ruled unlawful. The prorogation, or suspension, of Parliament was to be effective from some point between 9 and 12 September 2019 and would last until the State Opening of Parliament on 14 October 2019. As a consequence, Parliament was suspended between 10 September and 24 September 2019. Since Parliament was to be prorogued for five weeks and reconvene just 17 days before the United Kingdom's scheduled departure from the European Union on 31 October 2019, the move was seen by many opposition politicians and political commentators as a controversial and unconstitutional attempt by the prime minister to avoid parliamentary scrutiny of the Government's Brexit plans in the final weeks leading up to Brexit. Johnson and his Government defended the prorogation of Parliament as a routine political process that ordinarily follows the selection of a new prime minister and would allow the Government to refocus on a legislative agenda.
In early September 2019, judges in the
Background
Part of a series of articles on | |
Brexit | |
---|---|
Withdrawal of the United Kingdom from the European Union Glossary of terms | |
Jul 2018 | |
Withdrawal agreement plan presented | July 2018 |
Withdrawal agreement released | Nov 2018 |
Scottish Continuity Bill blocked | Dec 2018 |
Meaningful votes | Jan–Mar 2019 |
Brexit delayed until 12 April | Mar 2019 |
Cooper–Letwin Act passed | Apr 2019 |
Brexit delayed until 31 October | Apr 2019 |
European Parliament election | May 2019 |
Theresa May resigns as PM | Jul 2019 |
Boris Johnson becomes PM | Jul 2019 |
Prorogation and annulment | Aug–Sep 2019 |
Benn Act passed | Sep 2019 |
Withdrawal agreement revised | Oct 2019 |
Brexit delayed until 31 January | Oct 2019 |
2019 general election | Dec 2019 |
Agreement Act passed | Jan 2020 |
UK leaves the European Union | Jan 2020 |
Implementation period begins | Jan 2020 |
UK–EU trade deal agreed | Dec 2020 |
Future Relationship Act passed | Dec 2020 |
Scottish Continuity Act passed | Dec 2020 |
Implementation period ends | Dec 2020 |
New EU–UK relationship begins | Jan 2021 |
UK–EU trade deal ratified | Apr 2021 |
Windsor Framework released | Feb 2023 |
Windsor framework adopted | Mar 2023 |
Historically, the prorogation of Parliament was the norm and the monarch would typically only summon Parliament to approve royal taxes and summarily prorogue the body again. Prorogation was also used as a royal tactic to avoid parliamentary scrutiny.
Although prorogation is typically uncontroversial, there have been several noteworthy prorogations during major political disputes. In 1774, upon the advice of
The most controversial prorogation of recent times took place in 2008 in Canada. Stephen Harper, the prime minister and leader of the minority Conservative government, advised the governor general, Michaëlle Jean, to prorogue Parliament prior to the budget. At the time, the Liberal and New Democratic parties planned to form an alternative government with the support of the Bloc Québécois. Prorogation postponed the motion of no confidence in Harper's government and by the time Parliament sat again, the agreement between the opposition parties fell apart and Harper remained in office. Harper controversially advised Jean to prorogue Parliament again in late 2009, until after the 2010 Winter Olympics, at the time Harper was under heavy scrutiny for his role in the Afghan detainee affair.[11] A similar crisis that concerned the use of royal powers to break parliamentary deadlock took place in Australia in 1975. The prime minister, Gough Whitlam, was controversially dismissed by the governor-general, John Kerr, and replaced by the leader of the Opposition, Malcolm Fraser, who commanded a majority in the Senate. The House of Representatives, controlled by the Australian Labor Party, passed a motion of no confidence in Fraser, but was unable to reinstall Whitlam before Kerr dissolved Parliament in advance of a federal election.[12]
Prelude
Under Theresa May
Proposals of prorogation first surfaced in early 2019. At the time, the parliamentary session had been ongoing since 13 June 2017, several days after a
After the
Contemporaneously, the United Kingdom's withdrawal from the European Union, previously scheduled for 29 March 2019, was delayed to 12 April 2019. Proponents of leaving the European Union without a deal suggested prorogation as a method to ensure such a departure. The United Kingdom's withdrawal remains the legal default with or without a negotiated withdrawal agreement, and the prorogation of Parliament would prevent legislation to either ratify the agreement, seek an extension to Brexit negotiations, or revoke the invocation of Article 50 of the Treaty on European Union. Prorogation would also prevent a motion of no confidence or a motion to trigger an early general election. After persistent rumours of this course of action, despite Parliament's explicit rejection of a "no-deal" scenario, opposition MPs took control of the legislative calendar and passed the European Union (Withdrawal) Act 2019, also known as the "Cooper–Letwin Bill", which mandated the Government to seek a longer extension to Brexit negotiations. A subsequent agreement with the European Council delayed Brexit once again to 31 October 2019 and mandated elections to the European Parliament.[11]
Following the European elections, in which the Conservatives finished fifth behind the
Under Boris Johnson
During the summer recess, prorogation was still seen as a likely prospect. At the
Prorogation
In the week ending 24 August 2019, it was reported that within the previous 10 days Johnson had asked the
Such a long prorogation was seen as unprecedented. Since 1979, Parliament has not been prorogued for more than three weeks, and is typically prorogued for less than a week, as opposed to the five-week prorogation requested by the government.
Loss of working majority
Upon Parliament's return on 3 September 2019, Conservative MP and "no-deal" opponent Oliver Letwin made an emergency motion to introduce a bill which sought to delay Brexit past 31 October. The motion would allow backbench control of the timetable for 4 September to pass, in one day, what would become the European Union (Withdrawal) (No. 2) Act 2019. Letwin was successful due to the rebellion of 21 Conservative MPs who were subsequently suspended from the party; coupled with the defection of Phillip Lee to the Liberal Democrats, Johnson lost his working majority on his second day in Parliament as prime minister.[31] The Government then attempted to filibuster the bill in the House of Lords to prevent the bill's passage before prorogation, the Government later discontinued the filibuster and allowed the bill to pass the Lords on 6 September,[32] and subsequently receive Royal Assent on 9 September.[33]
Following the bill's passage into law, Johnson reiterated his commitment to ensure the UK's withdrawal from the EU took place on 31 October. This sparked speculation he could be imprisoned for
Prorogation
The procedures for prorogation occurred shortly before 2 am
-
Lord Newby
(Liberal Democrat, boycotted) -
Lord Fowler)
(Lord Speaker -
Baroness Evans of Bowes Park, Conservative)
(Leader of the House of Lords -
Lord Hope of Craighead
(Crossbench) -
Baroness Smith of Basildon
(Labour, boycotted)
The ostensible prorogation was said at the time to have brought an end to a parliamentary session that had sat for 341 days.[42] Fifty-two bills had passed into law; this included eight Brexit-related bills, six budgetary bills, and nine bills related to the collapse of the Northern Ireland Executive in 2017.[42][notes 5] At the time it was thought that three bills were carried over into the next session, whereas twelve government bills were not carried over. Notable bills that were said to be dropped as a result of prorogation included a Trade Bill, which was due for "ping-pong" and ineligible to be carried over; a Fisheries Bill; and bills concerned with animal cruelty, divorce, and domestic violence.[43] The supposed prorogation also cancelled a meeting between Johnson and members of the Liaison Committee that was scheduled for 11 September.[40]
Lower court rulings
During the parliamentary recess in August, a group of 78 parliamentarians, led by SNP justice spokeswoman
Immediately after the announcement of prorogation on 28 August, Cherry applied to the court for an interim
During the Court of Session hearings on 3 September, the court heard evidence Johnson had approved negotiations with
On 4 September, Doherty ruled in the first instance that the matter was non-justiciable. The case was immediately appealed to the Inner House of the Court of Session.[50] Doherty's opinion was shared by the High Court of Justice, who rejected Miller's case on 6 September as non-justiciable.[51] The High Court of Northern Ireland did not rule on the aspect of prorogation in McCord's case—as the English and Scottish courts had already ruled on the matter—and found the other aspects on his cases non-justiciable on 12 September.[52] On 11 September, the three-judge appellate panel at the Court of Session, consisting of Lords Carloway (Lord President), Brodie, and Drummond Young, unanimously found the prorogation was unlawful. The court found Johnson was motivated by "the improper purpose of stymieing Parliament" and had effectively "misled the Queen", and as a result, declared the royal proclamation as "null and of no effect". To resolve the fundamental differences in the verdicts from England and Scotland's senior courts, both the Miller and Cherry cases were appealed to the Supreme Court.[53]
Political events during prorogation
After the Scottish judgement was announced, opposition MPs demanded Parliament be immediately recalled that afternoon and some MPs returned to the empty chamber in protest.
Operation Yellowhammer
That same evening, just before the deadline set by Parliament for the Government to comply with the 9 September humble address, the Government published a summary of the Operation Yellowhammer documents, but refused to publish the full documents or release the prorogation correspondence, on the grounds that doing so would violate the legal right to privacy which civil servants enjoy.[58] Refusal to conform with a humble address, which is binding, risks the Government being found in contempt of Parliament for the second time within a year[58] in the first instance, Parliament voted in December 2018 that legal professional privilege was not a defence to a charge of contempt, in relation to the Government's initial refusal to disclose the full legal advice it received on the withdrawal agreement.[59]
The partial release of the
Impeachment
On the same day,
Supreme Court
The
The final day of the hearing saw interventions from other interested parties: former
On 24 September, the Supreme Court ruled unanimously that the prorogation was both justiciable and unlawful, and therefore null and of no effect. The court found that Johnson's advice to the Queen to prorogue Parliament 'was outside the powers of the Prime Minister'.[71] The court cited the Case of Proclamations (1611), in which the High Court of Justice asserted its power to test the existence of limits of prerogative powers, in answering the question of justiciability; in the case of prorogation, use of the Royal Prerogative must have respect for the conventions of parliamentary sovereignty and democratic accountability. The court ruled that any prorogation would be unlawful "if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature"; if this is the case, there would be no need to rule on whether the motives of the executive were lawful.[72]
The court further ruled that the prorogation of Parliament did have the effect of frustrating Parliament's constitutional functions; the court found that the suspension of Parliament in the prelude to the "fundamental [constitutional] change" of Brexit had an "extreme" effect on the "fundamentals of democracy". The court also found that the Government had not provided a justification for the intended prorogation nor for its length or its effect on the requirement for parliamentary scrutiny of any withdrawal agreement under the terms of the European Union (Withdrawal) Act 2018. As a result, the Court quashed the relevant Order in Council, which meant the effect of the royal proclamation of prorogation had the legal effect of "a blank piece of paper" and reverted the 2017–19 Parliament into being in session.[72]
Aftermath
Legal aftermath
As with the Scottish ruling, several opposition parliamentarians returned to the chamber immediately after the ruling was issued; those MPs who had surrounded Bercow with makeshift signs during the prorogation ceremony took selfies with their signs edited to reflect the ruling.[73] In a statement on College Green—near Parliament and the Supreme Court's seat in the Middlesex Guildhall—John Bercow announced he had recalled Parliament to sit on the following day from 11:30 am. Prime Minister's Questions was not scheduled for its regular Wednesday midday slot, but Bercow said he would allow urgent questions and applications for emergency debates to be heard.[74]
Bercow opened the first sitting of Parliament, on 25 September 2019, with a statement from the chair: he welcomed MPs back to work and informed the House that consequent to the Supreme Court ruling, the record of the prorogation ceremony would be expunged from the Journal of the House of Commons and corrected to reflect the House as
Political consequences
On the day of the ruling, Johnson was in
After the ruling, Johnson was criticised by opposition leaders:
Johnson's first address to Parliament after returning from New York was on the evening of 25 September. In his address, after he stated his opinion that the Supreme Court was "wrong to pronounce on a political question at a time of great national controversy", he re-iterated his call for an early general election and offered time in the parliamentary agenda on 26 September for any party who wished to lay a
Johnson's speech and conduct was criticised by opposition MPs, who alleged his choice of words were fuelling threats of violence against politicians. Labour MP Paula Sherriff said parliamentarians were routinely receiving death threats using language such as "surrender" and "betrayal", and asked Johnson to moderate his language, especially in the context of the June 2016 murder of Jo Cox.[81] Johnson prompted heckles of "shame" when he responded to Sherriff's comments that he "had never heard so much humbug in [his] life". Sherriff's request for moderated language was repeated by Cox's constituency successor Tracy Brabin; Johnson declined and elicited further anger when he told Brabin that the best way to "honour the memory" of Cox would be to "get Brexit done".[82]
On 26 September, Bercow made another statement from the chair that he was considering an application by
Later that day, a Government motion for the House of Commons to go into recess for the duration of the Conservative Party conference in
On 2 October, the Government announced fresh plans to prorogue Parliament for six days, from Tuesday 8 October to Monday 14 October. Proroguing on a Tuesday meant that Johnson would miss Prime Minister's Questions for the third successive Wednesday; at that point his only scheduled question time since becoming prime minister was on 4 September, although Johnson had faced over eight hours of questions in response to ad hoc ministerial statements.
2019 general election and Brexit
The manifesto published by the Conservative Party prior to the
See also
- 1975 Australian constitutional crisis
- 2008–09 Canadian parliamentary dispute
- 2010 Canada anti-prorogation protests
- 2019 in the United Kingdom
- Brexit negotiations in 2019
- Premiership of Boris Johnson
Notes
- reserve forces are called into service (Reserve Forces Act 1996), or if emergency powers under the Civil Contingencies Act 2004 are exercised. (Natzler & Hutton 2019)
- crossbench peers. The Archbishop of Canterbury and Lord Chancellor are also Lords Commissioners, but typically do not participate in Commission business. (Cowie 2019)
- Second Home Rule Bill (226 days); the 1992–93 Parliament, when Parliament debated the Maastricht Treaty (240 days); the 1997–98 Parliament, which passed wide-ranging constitutional reforms (242 days); and the aforementioned 2010–12 Parliament (295 days). (Hicks 2019)
- )
- ^ The fifty-two bills passed by Parliament are the forty-eight government-sponsored bills passed before 4 September, the two backbench Brexit bills, and two government bills that were given Royal Assent on 9 September. (Marshall et al. 2019, House of Commons Journal, 9 September 2019)
- )
- Treaty of Utrecht. (Caird 2016)
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External links
- Flickr gallery of the prorogation ceremony
Court judgments
- Joanna Cherry QC MP and Others for Judicial Review [2019] CSOH 68 (30 August 2019)
- Joanna Cherry QC MP and Others for Judicial Review [2019] CSOH 70 (4 September 2019)
- Reclaiming motion by Joanna Cherry QC MP and Others Against the Advocate General [2019] CSIH 49 (11 September 2019)
- R (on the application of Miller) v The Prime Minister [2019] EWHC 2381 (QB) (11 September 2019)
- R (on the application of Miller) v The Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41 (24 September 2019)