Unlawful and voided suspension of Parliament
On 28 August 2019, the Parliament of the United Kingdom was ordered to be prorogued by Queen Elizabeth II, on the advice of Prime Minister Boris Johnson, from a date between 9 and 12 September 2019 until the State Opening of Parliament on 14 October 2019. As a consequence, Parliament was suspended 9–24 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 High Court of Justice and the Outer House of the Court of Session (the English and Scottish civil courts of first instance) ruled that the matter was not subject to judicial review as it was a political decision. An appeal in the latter case to the Inner House of the Court of Session (Scotland's supreme civil court) overturned the Outer House verdict and ruled the advice was justiciable and unlawful. To resolve the differences of opinion between the courts, both cases were appealed to the Supreme Court of the United Kingdom which, on 24 September, ruled unanimously in "R (Miller) v The Prime Minister" and "Cherry v Advocate General for Scotland" that the advice was both justiciable and unlawful; consequently, the Order in Council ordering prorogation was quashed, and the prorogation was deemed "null and of no [legal] effect". When Parliament resumed on the following day, the prorogation ceremony was expunged from the Journal of the House of Commons and business continued as if the ceremony had never happened. A much shorter prorogation, this time for six days, began on 8 October.
Background.
Prorogation is a political process which marks the end of a parliamentary session, and also refers to the time between the end of one parliamentary session and the start of another. During prorogation, neither Parliament nor its committees sit, and all motions, unanswered questions, and bills not yet assented to automatically lapse, unless a so-called "carry-over motion" allows for the business to be resumed in the next session. Prorogation is a power under the royal prerogative and is ordered by the King-in-Council, that is, the King under advice of the Privy Council. Prorogation takes effect when a royal proclamation which orders the prorogation is read to both Houses of Parliament; at that point, Parliament does not meet again until the State Opening of Parliament some days later. It is distinct from adjournment and recess, which are short breaks that do not halt all parliamentary business, and dissolution, which disperses Parliament in advance of a general election. Since 1854, prorogation has been undertaken by the Lords Commissioners in lieu of the Sovereign.
Historically, the prorogation of Parliament was the norm; 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. Elizabeth I suspended Parliament in 1578 to prevent public debate of her courtship with Francis, Duke of Anjou. The turning point came in the prelude to the English Civil War, when Charles I prorogued his third Parliament. Parliament objected to royal imposition of taxes and issued the Petition of Right in response to the King's actions. When then-Speaker of the House of Commons, John Finch, announced the end of the session, incensed MPs sat on Finch, which momentarily prevented the closure of Parliament until the Commons passed several motions which condemned the King's abuse of power. After Parliament was prorogued, Charles I ruled on his own for eleven years—and even attempted to close down the Parliament of Scotland in 1638—and only recalled Parliament in 1640 to pass more taxes. The second sitting of Parliament that year—the famous Long Parliament—passed legislation which prevented its prorogation or dissolution without its consent. In the event, it sat undissolved for another twenty years throughout the English Civil War, Interregnum, and Restoration, despite Pride's Purge in 1648 which created the Rump Parliament and Oliver Cromwell's expulsion of the Long Parliament and convocation of an alternative assembly in 1653.
Although prorogation is typically uncontroversial, there have been several noteworthy prorogations during major political disputes. In 1774, upon the advice of Lord North, George III prorogued Parliament after the passage of the Quebec Act, one of the triggers of the American Revolution. In 1831, peers took umbrage to William IV's prorogation of Parliament after the Commons defeated the First Reform Bill which sought to expand the franchise. In 1948, Clement Attlee called a short "pro forma" session of Parliament, which was prorogued after ten days, to hasten the passage of the Parliament Act 1949, and in 1997, John Major advised an early prorogation prior to the general election in May, at the height of the cash-for-questions affair.
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. 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.
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 general election which saw the governing Conservative Party, then led by Theresa May, lose its majority. Prior to 2010, parliamentary sessions typically started in October and ended in September; general elections would shorten the preceding session and lengthen the following. After the Fixed-term Parliaments Act 2011—which abrogated the similar royal power to dissolve Parliament—passed into law, the regular start of the parliamentary calendar moved to coincide with elections in May. In June 2017, the Government announced the imminent parliamentary session would last for two years, to allow for greater parliamentary scrutiny of Brexit and the repeal or amendment of the corpus of European law which would no longer have effect upon the United Kingdom's departure from the European Union. On 7 May 2019, the 2017–19 Parliament became the longest parliamentary session since the Long Parliament four centuries earlier.
After the Brexit withdrawal agreement negotiated by the Government was rejected by Parliament, prorogation was seen as an option for the Government to bring the agreement back for another vote; "", which conventionally codifies parliamentary practice, states "matters already decided" cannot be brought back during a parliamentary session if they were already rejected on a substantive basis. The Speaker of the House of Commons, John Bercow, allowed a second vote on the agreement on 12 March 2019, which was rejected with a reduced majority. On 18 March, Bercow said any motion to approve the withdrawal agreement for a vote must not be "substantially the same", and on 27 March, re-iterated his warning to the Government. A third "meaningful vote" on the withdrawal agreement, which did not include the "political declaration" on future EU–UK relations, was lost by the Government on 29 March 2019.
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.
Following the European elections, in which the Conservatives finished fifth behind the Brexit Party, Liberal Democrats, Labour Party and Green Party, Theresa May announced her intention to resign as prime minister after a new Conservative leader was elected in July. In the interim period, opposition MPs asked whether a new prime minister would use prorogation to reduce parliamentary scrutiny of the Government's Brexit policy, which the Government did not rule out. In response, Bercow said from the chair that "Parliament will not be evacuated from the centre stage of the decision-making process on this important matter". He further said such a statement was "so blindly obvious so as not to need stating" but was dismayed by the fact it needed to be said.
Under Boris Johnson.
Boris Johnson, an outspoken critic of the withdrawal agreement, was subsequently elected Conservative leader on 23 July 2019 and became prime minister on the following day. As part of his strategy to ensure, "do or die", the UK's withdrawal from the EU on 31 October 2019, Johnson's campaign team and political commentators saw prorogation as a viable method to effect the policy. On 18 July, Johnson's imminent victory led opposition MPs to successfully amend the Northern Ireland (Executive Formation etc) Bill to make prorogation during late October functionally impossible; the Act requires the Government to lay reports before Parliament, which would then sit to debate them even during the body's suspension. On 25 July, the newly appointed Leader of the House of Commons, Jacob Rees-Mogg, who had also intimated the possibility of prorogation when he was a backbencher, said the Government viewed prorogation for political purposes as an "archaic mechanism" which was now his view due to collective ministerial responsibility would not be used.
During the summer recess, prorogation was still seen as a likely prospect. At the Edinburgh Festival Fringe, Bercow said he would "fight with every breath in [his] body" to prevent the suspension of Parliament, as he believed Parliament's right to sit and debate was sacrosanct. On 27 August 2019, over 150 cross-party opposition MPs signed the Church House Declaration—named after the Headquarters of the Church of England and former temporary parliamentary chamber near Parliament—and pledged to "do whatever is necessary" to prevent Parliament being prorogued. Opposition MPs also mooted the traditional conference season recess; in 2019, the conference season started with the Liberal Democrat conference, which began on 14 September, and ended with the closure of Conservative conference on 2 October.
Prorogation.
In the week ending 24 August 2019, it was reported that within the previous 10 days Johnson had asked the attorney general, Geoffrey Cox, for legal advice on the matter of prorogation, tentatively scheduled for between the return of Parliament on 3 September and the European Council meeting on 17 October. On 28 August, Jacob Rees-Mogg, in the role of Lord President of the Council, convened a small Privy Council meeting with Mark Spencer as Chief Whip, Baroness Evans of Bowes Park as Leader of the House of Lords and