Prorogation is a quintessentially political power, sometimes deployed toward some of the most brazen of political ends. Charles II prorogued Parliament several times to prevent discussion of the Exclusion Bill. John Major (in)famously prorogued Parliament in order to prevent a report by the Parliamentary Commissioner for Standards on the cash-for-questions scandal from being tabled before the 1997 general election. In 2003, the Canadian Parliament was prorogued to delay the tabling of a report by the Auditor-General into a major sponsorship scandal. In 2011, the New South Wales Parliament was prorogued in order to prevent the production of State papers pursuant to Standing Orders of the Legislative Council. Numerous other examples abound (see Gerard Horgan, “Partisan-Motivated Prorogation and The Westminster Model” (2014) 52 Commonwealth and Comparative Politics 455-472; “Prorogation as a Tool of the Executive in Intercameral Conflict” (2014) 29 Australasian Parliamentary Review 159-76). Oh, if only the loyal opposition – in all these cases – had known they could enlist the courts in correcting their political losses for them. What chumps!
But, besides the novelty of what is being proposed, are there other objections against making prorogation justiciable? In my view, allowing the courts to police the power of prorogation usurps a function exclusively vested and committed to another branch of the UK government: the Sovereign, acting by convention, under the instructions of her advisers. It is not for the courts to second-guess her considered judgement in accepting advice to prorogue, any more than the courts are entitled to second-guess advice proffered to the Sovereign to dissolve Parliament or advice to refuse royal assent – all are personal prerogatives touching, not immediately on individual rights, but on her relation vis-a-vis the national legislature. And all such decisions made thereto are made pursuant to the conventions of responsible government. Ministerial advice over such delicate policy areas as appointing ministers, dissolution, summoning, and prorogation were both traditionally regarded as non-justiciable, as newer Constitutions modelled on the UK Constitution have long recognised (see, eg, the Constitution of Barbados, s32(5); Belize, s34(4); Sri Lanka, s154F; India, Art. 74(2), 163(3); Jamaica Constitution, s30 and 32(4)). As a result, a prorogation, made pursuant to ministerial advice, is nonjusticiable: Durga Basu, Commentatary on the Constitution of India (1961) 267 (“These functions [dissolution and prorogation] are non-justiciable…”); NS Gehlot, State Governors In India (1985) 115 (“[P]rorogation cannot be called into question on any ground. In other words, this function is non-justiciable”); S. Madhusoodanan Nair, Governors and Chief Ministers in India (1991) 83 (“As per the decision of the Courts this function of the Governor is nonjusticiable. That is to say, it cannot be called in question in any court of law under Art. 163 of the Constitution”). These provisions codify what Lord Sumption quite rightly identified as the “orthodox” legal position.
Indeed, even in the UK, the dissolution power itself has long been regarded as the “textbook” example of a nonjusticiable prerogative power (per Lord Roskill in CCSU, endorsed recently in Bancoult at , ). But as has been observed long ago, dissolution and prorogation were themselves traditionally regarded as broadly analogous powers:
For there was no distinction, in the opinion of lawyers, or in the thing itself, between prorogation and dissolution. Whether Parliament were considered according to its personal, deliberative, legislative, or judicial functions, dissolution and prorogation were the same. If either House of Parliament, in its deliberate capacity, was engaged in any investigation, dissolution put an end to the proceeding; so did prorogation. If a legislative act was in progress; dissolution put an end to it, so did prorogation. So personal privilege was put to an end to by dissolution, as well by prorogation. But as to judicial proceedings, it was the reverse: they continued. A writ of error was, confessedly, not ended by prorogation neither by dissolution. Why? Because prorogation and dissolution were the same in law (History of the Common Law, 1820, p. 77).
Moreover, the valiant attempt by Lord Kerr to distinguish prorogation and dissolution cannot ignore the elephant in the room: both powers, as Commonwealth precedent amply illustrates, can involve crude political calculations to stymie Parliamentary debate or inquiry and in order to obtain a shameless partisan advantage. History shows this can be a most salient, and depending on your political outlook, a most useful feature of both the prorogation and dissolution power.
Furthermore, if anything, the case for making dissolution justiciable in order to defend the curial function of Parliament seems even more compelling: note a prorogation just suspends Parliament temporarily, whilst dissolution silences a dissolved Parliament forever. All business in the House and Lords comes to an end. Deliberation in committees is replaced with quick, glib soundbites in the national media. Members of Parliament cease to be members, and they may not enter the Palace of Westminster. Dissolution signifies the “civil death” of Parliament, as Blackstone put it. To be sure, Parliament is now dissolved 25 days before polling day, certainly somewhat shorter than five weeks, but this is entirely system-contingent, and can always be extended far beyond five weeks. In earlier times, a long election campaign after dissolution would have certainly been worse than any five-week prorogation so far as Parliament and its official corporate form was concerned. The point here is prorogation does not represent the civil death of Parliament. And if the courts do not intervene to stop something dramatic as the “civil death” of Parliament (dissolution), it should not intervene here.
But the analogy goes even deeper, for both prorogation and dissolution can potentially become reserve powers. In the exercise of her personal prerogatives, the Queen, who also forms the third branch of Parliament, will rightly exercise her rights to consult and warn if she (or her private advisers) sense there is an improper or nefarious motive behind say a prorogation or dissolution. It is for the Crown alone, not the courts, to critically assess the reasons given to justify a prorogation or dissolution. Of course, except in extreme circumstances (alluded to below), she will normally and sensibly accede to the advice of her Ministers. If the Queen is somehow misled or deceived over these powers, that is simply a matter between her and her advisers, and, of course, for the Parliament if it deems these arrangements to be deficient.
Alas, as Lord Reed pointed out, one danger of this current litigation is that it might misrepresent the correct allocation of powers and responsibilities that exists under the UK Constitution. The fact the government refused to concede the Crown might possess a reserve power to refuse an extreme prorogation amplified that possibility even further.
This is unfortunate. For all the extreme hypotheticals raised by Lord Pannick, we cannot fail to remember there are precedents, throughout the Commonwealth, where prorogations have been refused in response to craven attempts to avoid accountability. For example, in 1899, Lord Beauchamp, of Brideshead Revisited fame, refused a prorogation to NSW Premier George Reid, who sought a prorogation in order to avoid a motion of no confidence. More recently, Vernon Bodganor, before a Parliamentary Committee, suggested that a wise constitutional monarch would not automatically prorogue Parliament if she felt her Prime Minister could no longer command the confidence of the House of Commons. Bodganor is in good company: almost all commentators from Australia, India and Canada agree that a state Governor or Governor-General possesses a reserve power to refuse a prorogation if it is (1) designed to evade a pending motion of no confidence or (2) to bypass Parliamentary scrutiny for an excessive length of time (eg, for 6-12 months). Once we accept that such a reserve power exists, the likelihood of these extreme hypotheticals evaporate. Happily for all, the mere threatened existence of such a power may serve as a powerful deterrence against any need for its exercise.
But all the ink split on the Crown having a reserve power to refuse a rogue prorogation seems somewhat superfluous if prorogation is indeed justiciable. Such politically fraught questions can now simply be outsourced to the judiciary. The Sovereign can always be told: “Fear not – this lengthy prorogation of 7 months is really for the courts, not you, to worry about. That is for the judges, not you, to judge”.
Curiously, Lord Sales suggested, in the course of oral argument, that it should indeed be for the courts to decide such questions precisely so the Queen is not thrown into the political arena. Of course, it is not obvious why he would want the courts to enter the political fray either, particularly given the court, unlike the Queen, has never been traditionally regarded as a symbol of national unity. Lord Sales might simply be testing the argument; I do not take him to be absolutely wedded to that view.
And with good reason. Firstly, it erroneously assumes that the courts are the only guardian of the Constitution. Not so. Numerous authorities could be recited for the proposition that the Crown/Head of State is also the “guardian of the Constitution” or the “guarantor” of the conventions of responsible government (see Anne Twomey, The Veiled Sceptre, pp. 27, 35-37). Indeed, perhaps one of the inherent attractions of a constitutional monarchy is that it provides a meaningful check on brazen or unruly politicians. Finding prorogation to be justiciable effectively allows the courts to usurp this oversight function, vested in her Majesty, thereby deflating or minimising her special role as the “guardian of the Constitution” and of responsible government. Sadly, no longer can my monarchist friends tell me the Crown is there to keep a check on politicians. Rather, that has been outsourced to self-aggrandizing courts, always keen to expand their own omnipotence and jurisdiction, thus trespassing on hitherto unchallenged power of a coordinate branch of government.
Secondly, the Queen and her advisers are not stupid. Subtlety is, of course, key. The Queen would doubtlessly, in the first instance, inform her Prime Minister that she feels uncomfortable acceding to a prorogation which seems grossly excessive. Numerous precedents from the Commonwealth exist where vice-regal officers have calmly counselled their advisers against exceedingly lengthy prorogations. For example, in 1981 in Tasmania a proposed prorogation of 6 months was cut down to only 3 months after insistence by Governor Sir Stanley Burbury. More recently, Michaëlle Jean informed PM Stephen Harper that she would prorogue Parliament on the strict condition that his proposed prorogation be short and sweet. I suspect similar suggestions from the Queen would be also be followed. Furthermore, one wonders whether a refusal to prorogue would really become public – after all, conversations between the Queen and her Prime Minister are meant to be confidential and no one wants to be known as the Prime Minister who was rebuffed by the Queen. And even if it does become public, such a revelation would occur several years later when memoirs are finally published. In other words, the concern that refusing a prorogation would subject the Queen to political scrutiny seems to be a remote possibility. By contrast, and more critically, partisan opponents in none of these cases ever went to Court, nor ever suggested that they would challenge and undo the result of these careful and private caveats and deliberations. However, that is now a real possibility if prorogation is deemed to be justiciable.
Thirdly, imagine if the Harper prorogation was challenged in court. But what is the court going to say in these circumstances? Doubtlessly, the prorogation, in the short-run, evaded Parliamentary accountability. But, in the long-run, Harper lived to fight another day. He persuaded his coalition partners to support him by tweaking elements of his economic plan. Could such a smooth transition have really occurred during the lingering, ongoing fray of litigation? It is not clear what effect, exactly, a “maintain the rage” and “winner-takes-all” mentality, accompanying litigation, might have had on these negotiations. As the 2008-9 prorogation controversy illustrates, accountability is not the only constitutional value in the world. Rather, prorogation may be used to create a “cooling-off period”, thereby promoting repose, reflection, continuity, and a renewed reallocation of priorities. A smooth cooling-off period, however, seems less likely to occur if litigation now becomes the norm. It might have embroiled the Governor-General deeper into the political fray; perhaps by refusing any request for dissolution by Harper. Litigation may have also needlessly prolonged the crisis as challenges, slowly but surely, made their way up through the courts. However well-intentioned, who knows what the unintended consequences of justiciability might be. (Courts should not be anywhere near the business of who should or should not be forming government).
Finally, given we are in the world of hypotheticals, what if a Prime Minister just advises the Crown to prorogue Parliament again shortly after any adverse ruling? Should the Queen accede to that? What if after a finding of unlawfulness, tainting the executive with the brush of illegality, there are partisans who start calling for the Queen to dismiss her Prime Minister? Or starting demanding his resignation? The Crown again will be put back into the public spotlight. If anything, the salience of an ongoing protracted litigation over the exercise of her personal prerogative power potentially embroils her even more into politics – particularly if a Prime Minister advises the Queen to again prorogue Parliament shortly thereafter. And what if a rogue PM prorogues Parliament again, then that decision is challenged, an adverse ruling is again made, Parliament is again prorogued, and we start an endless ping-pong between the Prime Minister and the courts? Even then the Crown might be tempted to eventually say no – enough is enough. Thus, allowing the courts to review the exercise of the power of prorogation does not necessarily shield the Crown from the rough-and-tumble of political life. Quite the contrary. Indeed, if it were not for this litigation itself, I think this prorogation issue would have, for the most part, been forgotten during the course of the conference season, thus becoming little more than background noise.
Be that as it may, I do think the prorogation power should be somewhat curtailed, just as the dissolution power has been curtailed. In my view, prorogation should only occur if an absolute majority of the House of Commons requests such a prorogation beforehand (cf. Constitution of the Solomon Islands, s73(1); Tuvalu, s117(a)). Legislation should also be passed to ensure that committees can continue to sit and scrutinise any delegated legislation promulgated during any prorogation. It might also be worth allowing a sizeable minority of legislature to recall itself (see, eg, Article 28(2) of the Austrian Constitution or Article 86(2) of the Swiss Constitution). Major constitutional reform really should come from Parliament, not the courts. Any such legislation has the advantage of imposing a crisp bright-line numerical rule, rather than imposing some vague fuzzy good government and accountability standard, which will be potentially ripe for manipulation by ever imaginative judges.
Steven Spadijer holds an LLB (First Class Honours) from the Australian National University, an LLM (First Class Honours) from Cambridge University, and is a DPhil candidate at Oxford University.
(Suggested citation: S. Spadijer, ‘Prorogation, Justiciability and the Reserve Powers’, U.K. Const. L. Blog (20th Sept. 2019) (available at https://ukconstitutionallaw.org/))