Prorogation 2 (The sequel)

Parliament is due to be prorogued later today (8 October 2019) until Monday 14 October 2019.

Brexit Negotiations Politics

PM to request Parliament be prorogued

The Prime Minister intends to request the current session of Parliament be prorogued from the evening of Tuesday 8 October, with a Queen’s Speech on Monday 14 October.

Presumably this adheres to the conditions on prorogation as defined recently in the Supreme Court.

The Prime Minister has been consistently clear that he wants to set out a fresh legislative programme in a Queen’s Speech. He therefore intends to request that the current session of Parliament be prorogued from the evening of Tuesday 8 October, with a Quee’’s Speech on Monday 14 October.

The Government will seek to strengthen public services, improve infrastructure and connectivity across the country, tackle crime and enhance the integrity of the criminal justice system, while protecting our natural environment for the long-term.

The Prime Minister has today set out a fair and reasonable compromise for replacing the backstop and securing the United Kingdom’s exit from the European Union with a deal. If a deal can be agreed at European Council, a central feature of the legislative programme will be to introduce a Withdrawal Agreement Bill and move at pace to secure its passage before 31 October.

These timings would mean Parliament is prorogued for the shortest time possible to enable all the necessary logistical preparations for a State Opening to be undertaken, including those done by the House Authorities.

The Prime Minister, Boris Johnson said:

“I want to deliver on the people’s priorities. Through a Queen’s Speech, the Government will set out its plans for the NHS, schools, tackling crime, investing in infrastructure and building a strong economy. We will get Brexit done on 31 October and continue delivering on these vital issues.”


Supreme Court – Prorogation Decision

The Supreme Court has come to a decision regarding the question of whether the recent prorogation of Parliament was lawful or unlawful.


This follows the decision during the Joanna Cherry Judicial Review in the Scottish Court of Session held on 3 Sep 2019 which decided that the PM’s advice on prorogation was, as a matter of high policy and political judgement, non-justiciable.

Opinion of Lord Doherty (pdf)

This decision was appealed and the Inner House of the Court of Session ruled that the Prime Minister’s advice to HM the Queen that the United Kingdom Parliament should be prorogued from a day between 9 and 12 September until 14 October was unlawful because it had the purpose of stymying Parliament.

The Government appealed this decision to the Supreme Court.

Details of the decision are available in the document published on 11 September:

Opinion of Lord Carloway, The Lord President in the reclaiming motion by Joanna Cherry QC MP and others (pdf)

and is summarised in my article

Joanna Cherry Judicial Review Appeal

Mention is made in the full written decision that

The prospect of prorogation in the context of the Parliamentary procedures involving the UK’s withdrawal from the EU (commonly called “Brexit”) was first ventilated in the House of Commons as early as March 2019 as a method of circumventing the rule that the withdrawal agreement could not be the subject of a third vote during the same Parliamentary session.

implying that Theresa May’s Withdrawal Agreement with the EU cannot be brought back for further vote in the same Parliamentary session, and can only be voted on again in a new session, following prorogation or dissolution of Parliament.

A separate case, held in the High Court of England and Wales handed down its judgment on the same issue and came to the opposite conclusion.

The High Court heard a challenge to prorogation brought by Gina Miller on 5 September 2019, supported by a number of interveners. The matter was heard by a heavyweight bench, comprising the Lord Chief Justice Lord Burnett, Sir Terence Etherton, Master of the Rolls, and Dame Victoria Sharp, President of the Queen’s Bench Division.

R (Miller) and others v The Prime Minister [2019] EWHC 2381 (QB) (pdf)

We concluded that the decision of the Prime Minister was not justiciable. It is not a matter for the courts

In this case, the claim for judicial review was accordingly dismissed, but with permission granted to appeal directly to the Supreme Court.

Supreme Court Judgement

The Supreme Court heard submissions in both cases with 11 justices sitting over 3 days 19-21 September 2019 and the written judgement was released on 24 September 2019.

The Supreme Court – Case Details

Lady Hale (President), Lord Reed (Deputy President), Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Sales were sitting in this case.

A Summary of the Judgement was published, together with the Full Written Judgement on 24 September 2019. The judgment is the unanimous judgment of all 11 Justices, determines that the PMs advice was unlawful and thus that the prorogation never happened.

Summary Judgement (pdf)

Extracts from the Summary Judgement

The first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This Court holds that it is.

This Court has concluded that this case is about the limits of the power to advise Her Majesty to prorogue Parliament.

….that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

and considering remedies

This Court has already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices.

It is for Parliament, and in particular the Speaker and the Lord Speaker to decide what to do next. Unless there is some Parliamentary rule of which we are unaware, they can take immediate steps to enable each House to meet as soon as possible. It is not clear to us that any step is needed from the Prime Minister, but if it is, the court is pleased that his counsel have told the court that he will take all necessary steps to comply with the terms of any declaration made by this court.

It follows that the Advocate General’s appeal in the case of Cherry is dismissed and Mrs Miller’s appeal is allowed. The same declarations and orders should be made in each case.

The full judgement is available at

Full Written Judgement

Parliament Resumes

Following the decision of the Supreme Court, John Bercow instructed MPs to return to Parliament on Wednesday 25 September 2019.

In the light of that explicit judgment, I have instructed the House authorities to prepare not for the recall – the prorogation was unlawful and is void – to prepare for the resumption of the business of the House of Commons.

Specifically I have instructed the House authorities to undertake such steps as are necessary to ensure that the House of Commons sits tomorrow, that it does so at 11.30am.

Legal Politics

R (Gina Miller) v The Prime Minister

An application for a judicial review of the decision to prorogue Parliament was made by Gina Miller and heard at the High Court in London on 6 September 2019. The judgement was published on 11 September 2019.

R (Gina Miller) v The Prime Minister [2019] EWHC 2381

The court concluded that the claim, that the advice given was unlawful and an abuse of power, is not capable of being determined by the courts (i.e.the claim is non justiciable).

The court also certified pursuant to section 12(3A)(c) of the Administration of Justice Act 1969 that a sufficient case for an appeal to the Supreme Court has been made out to justify an application for leave to bring such an appeal.

The appeal has been scheduled for a hearing in the Supreme Court next Tuesday, 17 Sep 2019.


Parliament is Suspended

Parliament has been prorogued, meaning that Parliament has been suspended, for 5 weeks until the 14 October. The formal process took place during the early hours of Tuesday 10 September 2019 amid visible protests from MPs and the Speaker (who is shortly due to retire from his position).

A number of MPs protesting against the prorogation of Parliamment, holding signs reading “silenced”, attempted to stop the Speaker leaving the House of Commons for the House of Lords and the Speaker said:

Black Rod, I treat you and what you have to say with respect, and I recognise that our presence is desired by our Majesty the Queen’s Commissioners. They are doing what they believe to be right and I recognise my role in this matter.

I’m perfectly happy to play my part, but I do want to make the point that this is not a standard or normal prorogation.

This is not, however, a normal Prorogation. It is not typical. It is not standard. It is one of the longest for decades, and it represents, not just in the minds of many colleagues but for huge numbers of people outside an act of Executive fiat.

What does “executive fiat” mean ?

It can probably be interpreted to mean “the enforcement of a rule by people who have absolute power to do so, regardless of democratic process

The Speaker then led MPs towards the House of Lords for the formal prorogation ceremony. Only MPs from the Government took part in the ceremony leaving Opposition MPs in the House of Commons heckling as MPs left the chamber. Those remaining in the Commons held a “sing-song” in the chamber while the prorogation took place in the House of Lords.

Remember these are your elected representatives.

Opposition benches in the House of Lords were empty as Labour and Liberal Democrat peers boycotted the ceremony apparently in protest at the suspension of Parliament.

The Prorogation of Parliament proceeded to its conclusion with the Lord President winding up:

“My Lords and Members of the House of Commons:

By virtue of Her Majesty’s Commission which has now been read, we do, in Her Majesty’s name, and in obedience to Her Majesty’s Commands, prorogue this Parliament to Monday the fourteenth day of this October to be then here holden, and this Parliament is accordingly prorogued to Monday the fourteenth day of October.”

The Speaker returned to the House of Commons to report back to MPs, but this time Conservative MPs did not return in order to register their protest at the behaviour of other MPs.

Thus ended this first session of the Fifty-Seventh Parliament that was opened on 13 June 2017.