Wednesday, 11 September 2019

An interesting question

Readers are well aware that I am as interested in constitutional and administrative law as I am in planning law, and at present the former is rather more interesting and eventful than the latter.

The Inner House of the Court of Session in Edinburgh determined in a unanimous judgment this morning that the advice given by the government to the Queen that parliament should be prorogued was unlawful, and that the prorogation itself was accordingly unlawful, and was therefore “null and void”.

The court made a declaration to that effect, but adjourned any ancillary orders to a later date, pending an appeal to the Supreme Court. However, until or unless the Court of Session’s judgment is overturned by the Supreme Court, it is of binding effect and parliament is therefore free to sit again immediately.

Parliament rose on Monday night (actually in the early hours of Tuesday) solely due to the prorogation of parliament. So far as I am aware, the House of Commons did not vote to adjourn, nor did it go into recess. Although I cannot now find the passage in Hansard, I seem to recall that a formal motion was moved by the Leader of the House earlier in the day, in words that I cannot recall with complete accuracy, the gist of which was: “That this House do not adjourn pending her Majesty’s pleasure……….” - foreshadowing the prorogation that was due to take place after the conclusion of the day’s business that day.

If I am right, then there is no requirement that the government should ‘recall’ parliament. Both Houses of parliament can simply resume their sittings forthwith, and can continue to sit pending the judgment of the Supreme Court on the appeals against the judgment of the High Court in England and the contrary judgment of the Inner House of the Court of Session in Scotland.

The Speaker, I suggest, in liaison with the Lord Speaker (Lord Fowler) should take the urgent advice of the Clerk of the Parliaments (and other legal advice if this is thought necessary), and subject to that advice, should simply inform MPs that the sittings of the House of Commons will resume immediately, in practice tomorrow, Thursday 12 September.

The Supreme Court hearing is due to take place next week, on 17, 18 and 19 September, and it seems likely that judgment will be reserved until the following week commencing Monday 23 September. If the first instance decisions in the two cases before the court are upheld, so that the prorogation of parliament was after all lawful, prorogation would then be effective once again, subject to whatever formalities may be necessary in that connection. If, on the other hand, the Supreme Court takes the same view as the Inner House of the Court of Session, parliament can continue to sit without further interruption.

If the Supreme Court rules against prorogation, then whether the House of Commons will vote to go into recess later this month for the party conferences, as they usually do, is a moot point. Bearing in mind that the government has lost its majority in the Commons, there is a distinct possibility that the House will vote to continue its sittings without breaking for the party conferences.

It remains to be seen whether the government will still proceed with a Queen’s Speech on 14 October. If they do, then only a brief prorogation (no more than a couple of days) would suffice at the end of the preceding week. A short prorogation for that purpose would be perfectly lawful.

As to what else could happen in the meantime, I am making no predictions at all. I don’t know what we have done to bring a Chinese curse down on ourselves, but we do indeed live in interesting times.



  1. Martin

    Please do keep this up.

    Whilst we await the supreme court on prorogation, my mind has been ticking over a lightly mad question.

    If the government cannot trigger or withdraw article 50, or agree a deal, without parliament, and it is parliament not government that is sovereign (to badly summarise Miller part 1) could parliament act without the government? Could they, for example, pass a motion that the Speaker on behalf of a sovereign parliament, could write to the EU to seek an extension? A bit mad, but it's been a long week and it is Friday morning.

    1. I have also been thinking about this, but have not come to any conclusion.

      Clearly my suggestion in this blog post has not been taken up, and so we will presumably have to wait and see what the Supreme Court makes of the issue of prorogation. The English High Court simply ducked the question. The Inner House of the Court of Session, on the other hand, handed down three strongly-worded judgments that clearly explain why they found this prorogation to be unlawful.

      Johnson's current 'strategy' (if he has one?) is bound to fall apart, and so some quick thinking will be required before 31 October to prevent a disastrous No Deal Brexit.

      After that, whatever happens, we shall then need a General Election to pick up the pieces and try to repair all the damage that three successive Tory prime ministers have done to the country.

  2. You definitely need to have your own teeth to even say 'prorogation.'