Whether or not it is ultimately found to be unlawful, the Prime Minister’s decision to advise the Queen to prorogue Parliament has shed a spotlight on what Robert Blackburn has described in his illuminating article on the monarch’s personal prerogatives as: “a little corner of the constitution that is little understood and is routinely misunderstood”, (‘Monarchy and the personal prerogatives’ (2004] PL, 546) In the absence of any clear consensus amongst UK constitutional scholars on this issue, I would suggest that the postcolonial experience of the Commonwealth Caribbean with regard to the head of state’s personal prerogatives, prorogation, and constitutional review more generally, can offer a helpful comparative constitutional perspective.
Prorogation in the Commonwealth Caribbean
The 12 countries that make up the Commonwealth Caribbean (Antigua, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St Kitts, St Lucia, St Vincent and Trinidad) attained their independence from the UK in a period spanning 1962 to 1983. Their independence constitutions, which were based on the Westminster model, were, in Lord Diplock’s words, “negotiated as well as drafted by person nurtured in the tradition of that branch of the common law of England that is concerned with public law.” (Hinds v R  AC 177). As well as replicating the prerogative powers exercised by the Crown in the UK, they each seek to codify the conventions that surround the exercise of those powers. They may thus be said to represent the best understanding, as at the time of their drafting, of the nature of these conventions and how they were intended to operate in practice. For the purposes of our present enquiry, it is important to note that each constitution codifies the power of the head of state to prorogue Parliament. For those countries that remain constitutional monarchies, the head of state is the Crown acting through her representative, the Governor General. For Dominica, which embarked upon independence as a republic, and Trinidad and Tobago which became a republic in 1976, it is the President. Guyana represents something of an anomaly because, in 1980, it adopted a hybrid parliamentary/ presidential model of government and so will not be considered further here.
In the exercise of certain personal prerogatives Commonwealth Caribbean constitutions vary as to the extent of the head of state’s discretion. For example, some constitutions (see, for example, s65(1) Constitution of Barbados) empower the head of state to decide whom to appoint as Prime Minister in the case of a hung parliament: others empower the head of state to decide whether it is the country’s best interests to accede to a Prime Minister’s advice to dissolve parliament (see, for example, s84(40(a) Constitution of Belize). However, in no case do they afford any discretion to the head of state when exercising their power of prorogation. In exercising this power, the head of state has no choice but to act in accordance with the advice of the Prime Minister (see, for example, 34(1) Belize). The question of whether they have so acted is, however, precluded from judicial review by the inclusion of an ouster clause which, typically, provides that: ‘Where by this Constitution the Governor-General [or President as the case may be] is required to perform any function in accordance with the advice of, or after consultation with, any person or authority, the question whether the Governor-General [or President] has so exercised that function shall not be enquired into by any court of law’ (see, for example, s34(4) Belize and s118(3) Dominica).
The power to prorogue parliament under each of the independence constitutions is time limited. In the majority of cases, the maximum time for which parliament can be prorogued is six months (see, for example, s59(1) Constitution of Antigua. However, in the case of the Bahamas (s65(2)) and St Lucia (s54(1)) it is 12 months.
Aside from normal routine prorogations, Commonwealth Caribbean Prime Ministers have only prorogued parliament for politically motivated reasons on three occasions since independence. Two of these occurred in Grenada. The first occasion was in August 1989 when the Governor General, Sir Paul Scoon, prorogued parliament upon the advice of the Prime Minister, Herbert Blaize, who faced the threat of a vote of no confidence, which he was very likely to lose. The exercise of the power of prorogation in this instance is remarkable on two counts. Firstly, because the idea of proroguing parliament to avoid a potential loss on a vote of no confidence was actually suggested to the Prime Minister by the Governor General; and secondly, because the Governor General regarded the prorogation as done ‘with constitutional rectitude,’ as he later recounted in his memoir (Survival for Service (Macmillan:2003)). The second occasion was in September 2012 when the Prime Minister, Tilman Thomas, who, following the precedent set by his predecessor, Herbert Blaize, when faced with losing a vote of no confidence, simply requested the Governor General to prorogue Parliament. The political consequences of the prorogation in Herbert Blaize’s case are difficult to assess because he did not live to fight the ensuing elections when parliament was finally dissolved, but in Tilman Thomas’s case it is clear that the decision to prorogue was politically catastrophic as his party failed to win a single seat in the ensuing elections.
The third instance of the prorogation of parliament for politically motivated reasons was in Trinidad and Tobago, in April 2002, when the Prime Minister, Patrick Manning, advised the President, Arthur Robinson, to prorogue. On this occasion, the prorogation was prompted by the failure of the governing and opposition parties, who had won an equal number of seats in the December 2001 general election, to agree on the election of a Speaker, making it impossible for parliament to conduct any business. In dismissing a legal challenge to the Prime Minister’s refusal to hold a general election whilst remaining in power following the prorogation, the Judicial Committee of the Privy Council (JCPC) in Bobb v Manning  UKPC 22, noted that there were a number of wholly proper reasons why the Prime Minister may have preferred to prorogue rather than dissolve parliament. For example, the Prime Minister could reasonably have hoped that further negotiations with the opposition party might lead to a compromise, such as agreement on an independent non-member Speaker, or that a member of the opposition party might defect. Alternatively, the Prime Minister could have feared that a second election might yield the same result or that there were potential public disadvantages in holding another election so soon.
The independence constitutions of the Commonwealth Caribbean make it clear that, as the convention was understood by those responsible for negotiating and drafting these constitutions, there could be no question of a head of state being able to refuse a Prime Minister’s advice to prorogue parliament. The nature of conventions operating within an unwritten constitution like the UK’s, is, of course, that they can evolve over time, but there is no good reason to believe that the nature of this particular convention has changed since then.
It is also worth noting that while these independence constitutions expressly preclude courts from inquiring as to whether the head of state acted in accordance with the Prime Minister’s advice, they do not, as the JCPC observed in Lewis v AG Jamaica  UKPC 35, preclude the courts from reviewing the constitutionality of that advice. In the context of the prorogation of parliament this means that, if a Caribbean Prime Minister were to advise the head of state to prorogue parliament for a longer period of time than is permitted by the constitution, it would be perfectly proper for the courts to review the legality of that advice. Of course, in the context of the UK’s unwritten constitution, the question of the legality of the Prime Minister’s advice to prorogue does not admit of so clear-cut an answer, but the absence of a written constitution should not be a bar to challenging the legality of the Prime Minister’s advice to the Queen. Once again, a Caribbean precedent may be helpful. In the Hinds case cited above, the JCPC was prepared to strike down legislation – the Gun Court Act – not on the ground that it offended any written provision in the Constitution, but because it offended an implied principle of any system of government based on the Westminster model, namely the separation of powers. An argument based on implied principle – whether the separation of powers or the accountability of the executive to parliament – should equally be available to those challenging the legality of the Prime Minister’s advice to the Queen.
The judgment of the JCPC in Bobb v Manning, however, indicates the scale of the challenge they will meet in asking the courts to rule that the Prime Minister’s advice to prorogue was unlawful. As the judgment makes clear, the courts will be particularly receptive to political arguments justifying the prorogation of parliament. Whether or not the political justifications that the Prime Minister has so far advanced for proroguing Parliament are credible and how closely the Supreme Court will wish to scrutinise them are, of course, quite different matters.
Derek O’Brien, Truman Bodden Law School, Cayman Islands
(Suggested citation: D. O’Brien, ‘Prorogation: A Postcolonial Perspective’, U.K. Const. L. Blog (5th Sept. 2019) (available at https://ukconstitutionallaw.org/))