2019 British prorogation controversy

Proposals of prorogation first surfaced in early 2019. At the time, the parliamentary session had been ongoing since 13 June 2017, several days after a general election which saw the governing Conservative Party, then led by Theresa May, lose its majority. Prior to 2010, parliamentary sessions typically started in October and ended in September; general elections would shorten the preceding session and lengthen the following. After the Fixed-term Parliaments Act 2011—which abrogated the similar royal power to dissolve Parliament—passed into law, the regular start of the parliamentary calendar moved to coincide with elections in May.[13] In June 2017, the Government announced the imminent parliamentary session would last for two years, to allow for greater parliamentary scrutiny of Brexit and the repeal or amendment of the corpus of European law which would no longer have effect upon the United Kingdom's departure from the European Union.[14] On 7 May 2019, the 2017–19 Parliament became the longest parliamentary session since the Long Parliament four centuries prior.[13][notes 3]

After the Brexit withdrawal agreement negotiated by the Government was rejected by Parliament in the so-called "meaningful vote", prorogation was seen as an option for the Government to bring the agreement back for another vote; Erskine May, which conventionally codifies parliamentary practice, states "matters already decided" cannot be brought back during a parliamentary session if they were already rejected on a substantive basis. The Speaker of the House of Commons, John Bercow, allowed a second vote on the agreement on 12 March 2019, which was rejected with a reduced majority. On 18 March, Bercow said any motion to approve the withdrawal agreement for a vote must not be "substantially the same", and on 27 March, re-iterated his warning to the Government. A third "meaningful vote" on the withdrawal agreement, which did not include the "political declaration" on future EU–UK relations, was lost by the Government on 29 March 2019.[11]

Contemporaneously, the United Kingdom's withdrawal from the European Union, previously scheduled for 29 March 2019, was delayed to 12 April 2019. Proponents of leaving the European Union without a deal suggested prorogation as a method to ensure such a departure; the United Kingdom's withdrawal remains the legal default with or without a negotiated withdrawal agreement, and the prorogation of Parliament would prevent legislation to either ratify the agreement, seek an extension to Brexit negotiations, or revoke the invocation of Article 50 of the Treaty on European Union. Prorogation would also prevent a motion of no confidence or a motion to trigger an early general election. After persistent rumours of this course of action, despite Parliament's explicit rejection of a "no-deal" scenario, opposition MPs took control of the legislative calendar and passed the European Union (Withdrawal) Act 2019, also known as the "Cooper–Letwin Bill", which mandated the Government to seek a longer extension to Brexit negotiations. A subsequent agreement with the European Council delayed Brexit once again to 31 October 2019 and mandated elections to the European Parliament.[11]

After the European elections, in which the Conservatives finished fifth behind the Brexit Party, Liberal Democrats, Labour Party and Green Party, Theresa May announced her intention to resign as prime minister after a new Conservative leader was elected in July.[15] In the interim period, opposition MPs asked whether a new prime minister would use prorogation to reduce parliamentary scrutiny of the Government's Brexit policy, which the Government did not rule out. In response, Bercow said from the chair that "Parliament will not be evacuated from the centre stage of the decision-making process on this important matter"; he further said such a statement was "so blindly obvious so as not to need stating" but was dismayed by the fact it needed to be said.[11]

Boris Johnson, an outspoken critic of the withdrawal agreement, was subsequently elected Conservative leader on 23 July 2019 and became prime minister on the following day.[16] As part of his strategy to ensure, "do or die", the UK's withdrawal from the EU on 31 October 2019, Johnson's campaign team and political commentators saw prorogation as a viable method to effect the policy.[17] On 18 July, Johnson's imminent victory led opposition MPs to successfully amend the Northern Ireland (Executive Formation etc) Bill to make prorogation during late October functionally impossible; the Act requires the Government to lay reports before Parliament, which would then sit to debate them even during the body's suspension.[18] On 25 July, the newly appointed Leader of the House of Commons, Jacob Rees-Mogg, who also intimated the possibility of prorogation when he was a backbencher, said the Government viewed prorogation for political purposes as an "archaic mechanism" which was now his view due to collective ministerial responsibility would not be used.[19]

During the summer recess, prorogation was still seen as a likely prospect. At the Edinburgh Festival Fringe, Bercow said he would "fight with every breath in [his] body" to prevent the suspension of Parliament, as he believed Parliament's right to sit and debate was sacrosanct.[20] On 27 August 2019, over 150 cross-party opposition MPs signed the Church House Declaration—named after the Headquarters of the Church of England and former temporary parliamentary chamber near Parliament—and pledged to "do whatever is necessary" to prevent Parliament being prorogued.[21] Opposition MPs also mooted the traditional conference season recess; in 2019, the conference season started with the Liberal Democrat conference, which began on 14 September, and ends with the closure of Conservative conference on 2 October.[22]

Upon Parliament's return on 3 September 2019, Conservative MP and "no-deal" opponent Oliver Letwin made an emergency motion to introduce a bill which sought to delay Brexit past 31 October. The motion would allow backbench control of the timetable for 4 September to pass, in one day, what would become the European Union (Withdrawal) (No. 2) Act 2019. Letwin was successful due to the rebellion of 21 Conservative MPs who were subsequently suspended from the party; coupled with the defection of Phillip Lee to the Liberal Democrats, Johnson lost his working majority on his second day in Parliament as prime minister.[27] The Government then attempted to filibuster the bill in the House of Lords to prevent the bill's passage before prorogation; the Government later discontinued the filibuster and allowed the bill to pass the Lords on 6 September,[28] and subsequently receive Royal Assent on 9 September.[29]

MPs applaud Bercow as he sets the date for his retirement.

After the bill's passage into law, Johnson reiterated his commitment to ensure the UK's withdrawal from the EU took place on 31 October; this sparked speculation he could be imprisoned for contempt of court or otherwise removed from office for failing to uphold the law.[30] The Government also attempted twice to trigger an early general election, on 6 September and 9 September; both attempts failed, as opposition parties refused to support a motion on the basis it would dissolve Parliament and similarly make it unable to prevent a no-deal Brexit.[31][32] On 9 September 2019, the House of Commons voted 311–302 for a humble address for a return to force the Government to turn over, within 48 hours, all communications within the Prime Minister's Office related to prorogation as well as publish all documents related to no-deal preparations under Operation Yellowhammer.[33] In Westminster Hall, MPs debated two e-petitions: one supported prorogation and garnered 100,000 signatures before being closed; and one opposed prorogation and garnered 1.7 million signatures in several weeks.[34] On the same day, Bercow announced his resignation as Speaker, effective 31 October 2019, amidst speculation the Conservatives would break the tradition of not standing against the Speaker at the next general election; his resignation beforehand triggered a speakership election in which the Government would find it difficult to install a friendlier Speaker.[35]

Parliament was ostensibly prorogued shortly before 2 am on 10 September 2019, when the Lady Usher of the Black Rod, Sarah Clarke, entered the Commons chamber to signal the start of the formal ceremony amidst shouts of protest from the opposition benches. Bercow, who was then surrounded by opposition MPs who held makeshift signs which said "silenced", derided the intended prorogation as an "act of executive fiat" before he departed to the House of Lords for the ceremony. As many Conservative MPs followed him out of the chamber, many in opposition heckled the Government with chants of "shame on you". The ceremony in the Lords was boycotted by opposition peers; this included the Labour and Liberal Democrat leaders in the Lords, Baroness Smith of Basildon and Lord Newby, and caused the procedure to be performed with only three of the Lords Commissioners instead of the usual five. There were only sixteen peers in attendance: thirteen Conservatives, two crossbenchers and one Lord Spiritual. The session closed minutes later; upon his return to the Commons chamber alone, Bercow was cheered by opposition MPs before he read the notice of prorogation, which was later declared to be void.[36]

• Lords Commissioners at prorogation
• 
  Lord Newby (Liberal Democrat, boycotted)
• 
  Lord Fowler (Lord Speaker)
• 
  Baroness Evans of Bowes Park (Leader of the House of Lords, Conservative)
• 
  Lord Hope of Craighead QC (Crossbench)
• 
  Baroness Smith of Basildon (Labour, boycotted)

The ostensible prorogation was said at the time to have brought an end to a parliamentary session which had sat for 341 days.[37] Fifty-two bills had passed into law; this included eight Brexit-related bills, six budgetary bills, and nine bills related to the collapse of the Northern Ireland Executive in 2017.[37][notes 5] At the time it was thought that three bills were carried over into the next session, whereas twelve government bills were not carried over. Notable bills which were said to be dropped as a result of prorogation included a Trade Bill, which was due for "ping-pong" and ineligible to be carried over; a Fisheries Bill; and bills concerned with animal cruelty, divorce, and domestic violence.[38] The supposed prorogation also cancelled a meeting between Johnson and members of the Liaison Committee which was scheduled for 11 September.[39]

That same evening, just before the deadline set by Parliament for the Government to comply with the 9 September humble address, the Government published a summary of the Operation Yellowhammer documents, but refused to publish the full documents or release the prorogation correspondence, on the grounds that doing so would violate the legal right to privacy which civil servants enjoy.[54] Refusal to conform with a humble address, which is binding, risks the Government being found in contempt of Parliament for the second time within a year;[54] in the first instance, Parliament voted in December 2018 that legal professional privilege was not a defence to a charge of contempt, in relation to the Government's initial refusal to disclose the full legal advice it received on the withdrawal agreement.[55]

The partial release of the Yellowhammer documents, which detailed possible disruption to the supply of food, fuel, and medicine as a result of a no-deal Brexit, led to renewed calls from the opposition for Parliament on 12 September to be immediately recalled.[56] At the same time, Johnson was scrutinised with regard to the Court of Session finding he had misled the Queen; he denied lying to the Queen and said the High Court of Justice corroborated his belief.[57] On the same day, former Conservative attorney general Dominic Grieve QC MP said that if the Supreme Court found the Government had misled the Queen, it would represent a "very serious" breach of the relationship between the Queen and her prime minister, and Johnson would be forced to "very swiftly" resign as a matter of constitutional principle.[58] On 15 September, the Mail on Sunday reported that Cummings, in a meeting with other governmental special advisors, had suggested a second prorogation if the Supreme Court declared the first prorogation unlawful; the Prime Minister's Office confirmed the accuracy of the story and said the comment was "clearly made as a joke".[59]

On the same day, Plaid Cymru leader Adam Price said Parliament should impeach Johnson if the Government lost before the Supreme Court and Johnson refused to resign;[60] Liz Saville Roberts, the leader of the party in the House of Commons, had said earlier that week that Johnson should also be impeached if he refused to extend Brexit negotiations and entered discussions with other parties to gather support.[61] Impeachment is an arcane parliamentary procedure which has never been successfully levelled towards a prime minister or a Cabinet minister:[notes 7] the last individual to be impeached was Henry Dundas, 1st Viscount Melville in 1806; and the last serious attempt was an unsuccessful 2004 effort by Price and ten other MPs to impeach then-prime minister Tony Blair.[62] Johnson, then a member of the opposition frontbench, was another high-profile supporter of the impeachment motion and wrote an opinion piece in The Daily Telegraph which accused Blair of "treating Parliament and the public with contempt".[60] Historically, individuals who were impeached would be arrested and prosecuted by the Commons in a trial before the Lords in Westminster Hall; those who were later convicted were sentenced at the liberty of the Commons and had no right to receive the royal prerogative of mercy.[62]

As with the Scottish ruling, several opposition parliamentarians returned to the chamber immediately after the ruling was issued; those MPs who had surrounded Bercow with makeshift signs during the prorogation ceremony took selfies with their signs edited to reflect the ruling.[68] In a statement on College Green—near Parliament and the Supreme Court's seat in the Middlesex Guildhall—John Bercow announced he had recalled Parliament to sit on the following day from 11:30 am. Prime Minister's Questions was not scheduled for its regular Wednesday midday slot, but Bercow said he would allow urgent questions and applications for emergency debates to be heard.[69]

Bercow opened the first sitting of Parliament, on 25 September 2019, with a statement from the chair: he welcomed MPs back to work and informed the House that consequent to the Supreme Court ruling, the record of the prorogation ceremony would be expunged from the Journal of the House of Commons and corrected to reflect the House as adjourned instead, and that the Royal Assent that had been signified to the Parliamentary Buildings (Restoration and Renewal) Act during the ceremony would need to be re-signified.[70] The first item of debate was an urgent question by Cherry to the attorney general; she urged Cox to publish the legal advice he gave to Johnson on the subject of prorogation to avoid him being labelled as a scapegoat for the affair. Cox defended the advice he gave to Johnson as being "in good faith", and distanced himself from comments from Conservative MPs which attacked the independence of the judiciary: specifically, Rees-Mogg's description of the ruling as a "constitutional coup".[71]

On the day of the ruling, Johnson was in New York City to give a speech before the United Nations General Assembly, tentatively scheduled for the morning on 25 September. Johnson said that the Government disagreed with the ruling, but would nevertheless abide by it and not seek to prevent Parliament from meeting on the following day. Johnson refused to rule out a second prorogation, and also ruled out his resignation. The Prime Minister's Office confirmed that Johnson's speech would be brought forward to the evening of the 24th to allow Johnson to fly back to Britain in time for the start of the following day's parliamentary sitting.[72]

After the ruling, Johnson was criticised by opposition leaders: Jeremy Corbyn, whose Labour Party was in conference in Brighton at the time, brought forward his keynote speech in which he invited Johnson to "consider his position and become the shortest-serving prime minister there's ever been"; SNP leader Nicola Sturgeon demanded Johnson's resignation and urged Parliament to table a motion of no confidence if he did not resign; Liberal Democrat leader Jo Swinson said that Johnson "wasn't fit to be prime minister"; and Brexit Party leader Nigel Farage called prorogation "the worst political decision ever" and called on Johnson to fire his adviser Dominic Cummings for suggesting the plan.[73]

Johnson's first address to Parliament after returning from New York was on the evening of 25 September. In his address, after he stated his opinion that the Supreme Court was "wrong to pronounce on a political question at a time of great national controversy", he re-iterated his call for an early general election and offered time in the parliamentary agenda on 26 September for any party who wished to lay a motion of no confidence against him. When asked by MPs whether he would rule out a second prorogation, he refused, and when asked whether he would abide by the law which mandates him to request an extension to Article 50, he said he would not do so; he had earlier described the law as a "Surrender Bill" or commonly referred to in the media as the Benn Act.[74][75]

Johnson's speech and conduct was criticised by opposition MPs, who alleged his choice of words were fuelling threats of violence against politicians. Labour MP Paula Sherriff said parliamentarians were routinely receiving death threats using language such as "surrender" and "betrayal", and asked Johnson to moderate his language, especially in the context of the June 2016 murder of Jo Cox.[76] Johnson prompted heckles of "shame" when he responded to Sherriff's comments that he "had never heard so much humbug in [his] life". Sherriff's request for moderated language was repeated by Cox's constituency successor Tracy Brabin; Johnson declined and elicited further anger when he told Brabin that the best way to "honour the memory" of Cox would be to "get Brexit done".[77]

On 26 September, Bercow made another statement from the chair that he was considering an application by Kenneth Clarke and Harriet Harman—the longest serving male and female MPs respectively—for a Speaker's Conference to be held to discuss the lack of decorum in contemporary British political culture. Bercow also lambasted the tone of the previous night's debates as the worst he had seen in Parliament since his election as an MP in 1997.[78] Several hours after asking an urgent question on political decorum, Labour MP Jess Phillips told LBC that a man had been arrested on suspicion of a public order offence outside her Birmingham Yardley constituency office; Phillips alleged the man had been attempting to break into the office whilst accusing her of fascism.[79] In an interview with the BBC, Johnson said he deplored any threats of violence, but defended his description of the Article 50 extension law as a "Surrender Bill" and declined requests to apologise.[80]

Later that day, a Government motion for the House of Commons to go into recess for the duration of the Conservative Party conference in Manchester was rejected 289–306; the defeat represented the seventh successive Government defeat in the House of Commons and continued Johnson's record of not winning a single division since taking office. As a result, the Government scheduled relatively uncontroversial matters for debate for the three days Parliament sat during the conference; this included the cross-party domestic violence bill, which was scheduled for the Wednesday 2 October session.[81] The lack of a conference recess meant that Prime Minister's Questions clashed with the leader's keynote speech at the Conservative conference; Johnson delivered his conference keynote whilst Prime Minister's Questions was deputised by Dominic Raab who faced questions from then Shadow Home Secretary Diane Abbott making her the first black MP to stand at a dispatch box for PMQs.[82][83]

On 2 October, the Government announced fresh plans to prorogue Parliament for six days, from Tuesday 8 October to Monday 14 October. Proroguing on a Tuesday meant that Johnson would miss Prime Minister's Questions for the third successive Wednesday; at that point his only scheduled question time since becoming prime minister was on 4 September, although Johnson had faced over eight hours of questions in response to ad hoc ministerial statements.[84][85] The second prorogation ceremony took place on the evening of 8 October, and was attended by 30 MPs who followed Black Rod Sarah Clarke from the Commons to the Lords. The ceremony passed without the protests that had marked the previous attempt at prorogation with opposition leaders in the House of Lords also participating in the proceedings, though Lord Judge was substituted for Lord Hope of Craighead having in the interim succeeded him as crossbench convenor.[86]

The manifesto published by the Conservative Party prior to the 2019 general election, held in December of that year, stated that a newly elected Conservative government would review the broader constitutional relationship between Parliament and the courts, as well as the function of the Royal Prerogative itself, the basis on which prorogation is made.[87][88] In the election, they won an 80-seat majority and therefore formed the next government.[89]

• Joanna Cherry QC MP and Others for Judicial Review [2019] CSOH 68 (30 August 2019)
• Joanna Cherry QC MP and Others for Judicial Review [2019] CSOH 70 (4 September 2019)
• Reclaiming motion by Joanna Cherry QC MP and Others Against the Advocate General [2019] CSIH 49 (11 September 2019)
• R (on the application of Miller) v The Prime Minister [2019] EWHC 2381 (QB) (11 September 2019)
• R (on the application of Miller) v The Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41 (24 September 2019)