What would make Boris Johnson’s prorogation of Parliament ‘improper’? Anne Twomey argues that the Supreme Court should focus on the fact that the PM has lost the confidence of the Commons – which is a breach of constitutional principle – rather than on the political advantages he might secure by shutting down Parliament.
Prorogation is primarily a procedural exercise which ends a session of parliament and terminates any unfinished business, such as bills or resolutions, before the Houses. Under the system of responsible government, the government holds the confidence of the lower House of Parliament, and hence any act of prorogation is ordinarily one that is supported by a majority of the lower House. Prorogation, therefore, usually entails the cooperation and support of both the government and the House from which the government is formed.
The reason why the recent prorogation of the UK Parliament has been so controversial is that the government appears no longer to hold the confidence of the House. The Johnson government has never received a vote of confidence, either implicit (such as the passage of a budgetary measure or a vote supporting the Queen’s Speech) or explicit, and has been defeated upon a major bill as well as two resolutions for a dissolution.
Instead of the House of Commons and the government operating cooperatively with respect to prorogation, they are now at odds with each other. Prorogation is no longer being used as a procedural measure to aid the smooth running of Parliament, but as a means of preventing Parliament from acting, for a period of time, against the will of a government which has ceased to hold its confidence. It is this change in the constitutional situation which is critical to the question of when prorogation is for an improper purpose.
According to long-standing convention, when a government is defeated on a bill that is central to government policy, or which it has itself treated as a matter of confidence, it must either resign, secure a fresh vote of confidence, or secure a dissolution of parliament. This convention has been recorded in all the standard works of constitutional law, including those by Eugene Forsey, Vernon Bogdanor, Rodney Brazier, Robert Blackburn and Geoffrey Marshall.
The Johnson government has suffered such a defeat by the passage of a non-government bill that it treated as a matter of confidence and which was opposed to its central policy. Yet Johnson has neither resigned nor secured a dissolution. His failure to resign, in the face of a clear loss of confidence, not once but on every substantive vote put during his government’s short existence, has breached convention and is at the root of the current constitutional difficulties.
While prorogation is normally an exercise of good housekeeping (which is a ‘proper’ purpose for proroguing), there have been occasions where it has been used to obtain a political advantage. In the past, it has been used in countries such as Canada, Australia and the United Kingdom to limit parliamentary scrutiny by terminating parliamentary inquiries, preventing the tabling of reports likely to be embarrassing to the government or to avoid having to comply with an order by a House for the production of documents. For example, the media alleged in 1997 that the Major government’s prorogation of Parliament was for the purpose of preventing a report on the ‘cash for questions’ scandal from being tabled before the 1997 general election.
Prorogation has also been used for other political purposes, such as terminating a warrant of imprisonment for contempt of Parliament, or causing the disqualification of members who failed to attend for a session of Parliament, or ending a pairing arrangement that had been made on a sessional basis so as to force through a bill while Opposition members were absent through illness or incapacity.
In some of these cases, prorogation might legitimately be deprecated as inappropriate or even ‘improper’ in the colloquial sense, but as long as it is done by a government which holds the confidence of the lower House, it is done with the assumed support of a majority of the House to which that government is responsible. While the actions of the government might be opposed by an upper House which the government does not control, it cannot be said that the government’s actions are contrary to the will of Parliament.
Where prorogation is undertaken at the behest of a government which has, or appears likely to have, lost the confidence of the lower House, and is done for the purpose of avoiding a vote of no confidence or other action by Parliament against the government’s will (which may amount to an implied vote of no confidence), then such action may be regarded as ‘unconstitutional’ and may legitimately be rejected by the Queen or her vice-regal representative in the other Realms. Hence, in Canada a number of eminent constitutional scholars took the view that the Governor-General would have been entitled to refuse the request of Prime Minister Harper to prorogue Parliament in 2008, when he appeared to have lost the confidence of the lower House, but not in 2009 when confidence was not in issue, but the alleged motive for the prorogation of Parliament was to prevent scrutiny by a parliamentary inquiry.
In the current Supreme Court proceedings, if the Court were minded to limit the scope of the power to prorogue by reference to whether or not it was exercised for an improper purpose, it should be cautious about assessing ‘improper purpose’ by reference to political advantage. Instead, an alternative would be to limit improper purposes to only those purposes that involve a breach of constitutional principle, such as the exercise of prorogation when the government has lost the confidence of the House, or is seeking to avoid a vote of no confidence against it. This would be consistent with the propositions that it is the common law that determines the existence and scope of prerogative powers, and that the common law must be interpreted in a manner that is consistent with the constitution.
Note: the above was first published on LSE Brexit.
Anne Twomey is a Professor of Constitutional Law at the University of Sydney and the author of ‘The Veiled Sceptre – Reserve Powers of Heads of State in Westminster Systems’.