The Constitution Unit


Meg Russell gives evidence to PACAC on prorogation and the Supreme Court judgment

9 October 2019

On 8 October 2019, Constitution Unit Director Professor Meg Russell gave evidence to the House of Commons Public Administration and Constitutional Affairs Committee.

Meg Russell giving evidence to PACAC 8 October 2019

On 8 October 2019 the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) held a one-off evidence session to examine the use of the prerogative power to prorogue parliament and the constitutional implications of the Supreme Court’s decision last month in the Miller 2/Cherry case. Professor Russell appeared alongside retired Supreme Court Justice Lord Sumption. Professor Richard Ekins and Professor Paul Craig, both of the University of Oxford, and Professor Anne Twomey, from the University of Sydney appeared on an immediately preceding panel. 


Key points from Professor Russell’s evidence included the following:

  • She emphasised the important differences between previous political prorogations, such as those used to pass the Parliament Act 1949, and the one quashed by the Supreme Court. The former aimed to carry out the express will of the House of Commons to pass the Bill. The latter saw the power being used to stymie parliament, preventing it from scrutinising the government at a time of significant political and constitutional upheaval.
  • One possibility in terms of dealing with prorogation would be to abolish parliamentary sessions and thus the need for prorogation, and to move to single continuous five year parliaments. This would also end the sessional cut-off, which means that legislation still being scrutinised by parliament is lost on prorogation. A system like this is used in Scotland. But this would require amendments to the Parliament Act, as the House of Lords' delay power is based on sessions. 
  • The simpler solution however, with which Lord Sumption agreed, was that prorogation should at least be put on the same footing as adjournment for recess and now dissolution for general elections, requiring the consent of the House of Commons.
  • The argument that if the House of Commons wanted to prevent its prorogation it could have done so seems incorrect for a number of reasons. The prorogation itself came as a shock to parliament, the idea having been dismissed by a number of members of Boris Johnson’s cabinet during and after the Conservative Party leadership contest. When parliament did return on 3 September, it had a very short period in which to act, which it used to pass the Benn Act, which the so-called Rebel Alliance had long been preparing for. If they had tried to pass a bill preventing the prorogation, it would have most likely engaged Queen’s Consent, which would given the executive a veto. Finally, although parliamentarians could have used a vote of no-confidence to remove the Prime Minister, prorogation meant they had a curtailed window in which to then form an alternative government. If they had failed, this would have resulted in a general election, with the Prime Minister setting the election date - possibly for after 31 October, which could have resulted in a no-deal Brexit.
  • Hence the intervention of the courts into this area was necessary. When parliament has been shut down so cannot do anything about its prorogation, and according to the government the Queen must accept the Prime Minister’s advice to prorogue, there is no other longstop than the courts to prevent an abuse of the prorogation power.
  • The judgment itself is both an earthquake and ‘Politics 101’. The court stepping in to reopen parliament has never occurred before, but the effect of the court's action was to protect and cement parliament’s position as the senior partner in the UK constitution. The judgment was based on well-established constitutional principles, that the court simply articulated.
  • The approaching deadline of 31 October is key. It was relevant to the timing of the prorogation, and has now been tangled with the operation of the Fixed-term Parliaments Act, where perhaps the Commons would have voted for a general election had there not been the Brexit deadline, and the possibility that an election period could span that deadline. There is also a referendum result hanging over everything, and a minority government. In the period to 31 October this has created a kind of political purgatory.
  • All constitutions depend on actors respecting conventions and using them reasonably. The UK constitution allows flexibility which can be used as appropriate, but should not be abused. Politics - and indeed society - would not be able to function if key actors saw the law as the only constraint on their actions. 

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