The Fixed-term Parliaments Act 2011 Contents


What is prorogation

84.Prorogation is an act performed by the Sovereign under prerogative power to bring a parliamentary session to an end and suspend Parliament until the start of a new session. Prorogation ends the proceedings in both Houses for the current parliamentary session. When this happens, all business, unless specifically provided for (using the Standing Orders to “carry-over” Bills) including Bills, EDMs and Parliamentary Questions, fall. While select committee inquiries do not fall, no formal committee proceeding can take place and statutory periods specifying sitting days (for example, for secondary legislation) are also suspended during the period of Prorogation.

85.Prorogation is a prerogative act exercised by the Sovereign on advice of the Privy Council. In practice, this is on the advice of the Prime Minister.

Prorogation in the Act

86.The FtPA directly states that the prerogative power of prorogation is not affected by the Act. During the passage of the Act, concern was raised about the potential for misuse of prorogation, in particular in relation to the statutory provisions following a confidence motion. An amendment to include the power of prorogation and make it a decision for the House of Commons was debated and defeated.125 In addressing this amendment and the more general concerns about retaining the prerogative power to prorogue, the Government said that “the conventions of this House are sufficiently strong” and as such the proposals to put prorogation on a statutory footing were “unwise and unnecessary”.126 It should also be noted that the House of Lords Constitution Committee also concluded at the time that “the risk of abuse of the power of prorogation is very small. We therefore conclude that Her Majesty’s power to prorogue Parliament should remain.”127

The Supreme Court Decision in the Miller-Cherry prorogation case

87.In August 2019, the Prime Minister advised the Queen to prorogue Parliament on 9 September for five weeks. This prorogation was challenged in the courts and ultimately the Supreme Court decided that:

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason—let alone a good reason—to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.128

88.This inquiry has not sought to consider the Supreme Court decision in the Miller-Cherry case,129 but has sought to consider whether, in light of this decision, prorogation should be included in legislation replacing the FtPA.

89.Concern was raised in evidence given to this Committee about the uncertainty surrounding the current prorogation arrangements following the Supreme Court’s Decision. There was a common consensus that prorogation should be an issue which in future the courts should not have to be involved in. There were, however, a range of different views on how this would best be achieved.

90.Sir Stephen Laws said in his view that “what should be set out in statute is that Prorogation is not a matter for the courts”.130 The Miller-Cherry case, he argued, arrogated to the courts the function that is really the function of the Sovereign. He advocated the continuation of the current system of restraint, whereby the Prime Minister “does not want to involve the Queen in anything that is politically objectionable”. His view was that the Prime Minister’s request for a September 2019 prorogation was “not excessive” as it allowed the House to move a motion of no confidence and complied with the statutory obligations.131

91.In addressing the question of whether prorogation should be set out in statute, Robert Craig cautioned the FtPA demonstrated that “an attempt to place prerogative powers onto statute can easily backfire”.132 While he did not oppose placing the prerogative in statute per se, he said it is necessary to be aware of the potential for unforeseen consequences and of “participants starting to try to ‘game’ the legal rules, once they are laid down in a rigid way”.133

92.Professor Russell and Professor Hazell said that the events that led to the Miller-Cherry case meant that the conclusions expressed by the Government and Lords Constitution Committee—that risk of the abuse of the prorogation prerogative is low—should be revisited.134

93.Professor Phillipson said that he could think of no good reason why the Executive needed the power to suspend Parliament, except for a few days to prepare for a new session. As such he advocated an Act that sets out that the Queen states the date for a new session, and Parliament is automatically prorogued five working day prior to this.135

94.The Supreme Court’s decision in the Miller-Cherry case highlights that at the heart of the UK’s constitutional arrangements is a fine but constantly-shifting balance of convention, principle and law, that provides clear guidance, but also flexibility. These arrangements, when working successfully, rely as much on self-regulation and collective approbation as they do on the hard edge of the law. This is not a constitutional system in which the courts are intended be the ultimate arbiter. In areas of prerogative power, the Sovereign remains the constitutional backstop. However, the prorogation case raised questions over the extent to which the Sovereign is now able to perform this role, especially if the convention that the Sovereign should not be drawn into politically-objectionable matters is not adhered to. A range of options of how to prevent this have been suggested to the Committee, including setting out the power of prorogation in statue. The Committee recommends this is included in the review committee’s terms of reference.

125 HC Deb, 18 January 2011, Col 733–811
Prorogation of Parliament
(1) Parliament can only be prorogued in accordance with this section.
(2) If the House of Commons resolves that Parliament should be prorogued, Parliament shall be prorogued at that time, or by declaration of the Speaker.
(3) The Speaker of the House of Commons shall not make such a declaration unless the House of Commons has passed a resolution directing him to do so on or before a specified date and time.
(4) Where Parliament is prorogued under subsection (2) above, the Speaker may by declaration prorogue it to an earlier or later day.
(5) The Prorogation Act 1867 is repealed.

126 HC Deb, 18 January 2011, Col 768–9 [Commons Chamber]

127 Constitution Committee, Eighth Report of session 2010–12, Fixed-term Parliaments Bill, HL69, para 149

128 R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41, para 61

129 Miller/ Cherry [2019] UKSC 41

132 Robert Craig (FTP0010)

133 Robert Craig (FTP0010)

134 Meg Russell and Robert Hazell (FTP0011)

Published: 15 September 2020