Prorogation is the means (otherwise than by dissolution) by which a Parliamentary session is brought to an end.

Prerogative power

It is a prerogative power exercised by the Crown on the advice of the Privy Council. In practice this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to.

Prorogation has both immediate and wider constitutional effects. The former effects are relevant to all circumstances in which Parliament is prorogued. The less immediate effects typically take on a greater significance when the period of prorogation is longer.

Immediate effects of prorogation

Prorogation brings to an end the proceedings in both Houses for the current Parliamentary session. Unless specific provision is made (e.g. in the Standing Orders to “carry-over” bills) no business of a previous Parliamentary session may be carried over into the next session.

The motions set down and orders made for business to be considered on future days all fall at Prorogation, as do notices of EDMs and unanswered Parliamentary questions. Select committee inquiries continue, though no committee may meet during Prorogation; statutory periods for Parliamentary consideration of secondary legislation are suspended over Prorogation, but the legislation itself does not fall.

A new Parliamentary session can provide procedural opportunities to revisit matters where legislation was unable to progress in a previous session. For example, if the House of Lords withheld its consent for a bill, a new session enables a UK Government commanding the confidence of the Commons to reintroduce the legislation in question. Provided that a year has elapsed since Commons second reading, the legislation may then reach the statute book notwithstanding Lords opposition.[1]

Wider effects of prorogation

A prolonged prorogation reduces the influence of Parliament over the way the country is governed. While Parliament is prorogued, MPs and Peers cannot formally debate government policy and legislation, submit parliamentary questions for response by government departments, scrutinise government activity through parliamentary committees or introduce legislation of their own.

The Government can continue to make delegated legislation and bring it into force, and to exercise its other prerogative powers. The main limitations on what the Government can do during prorogation are that it cannot pass primary legislation and it cannot secure approval for further supply (i.e. public money for government spending).

Long prorogations (or requests for them) can give rise to fundamental questions about whether the Government of the day still commands the confidence of the House of Commons and therefore whether it can legitimately continue to govern.

Length of prorogation in the UK

The typical recent duration of a UK Parliament’s prorogation has been very short. Since the 1980s prorogation has rarely lasted longer than two weeks (and, between sessions during a Parliament, has typically lasted less than a week). It has always led either to the dissolution of the current Parliament (prior to a General Election) or the start of a new Parliamentary session.

International examples of prorogation

In other Westminster systems and in recent years, prorogation has occasionally been a more controversial issue. In both Canada and Australia, federal and state Governments have requested prorogations for what might be thought explicitly “political” purposes.

In those circumstances, there has arisen a fundamental constitutional question about the relationship between the Premier and the representative of the Crown (if not the Crown itself): whether the latter must always follow the advice of the former. While the answer to this question has depended in part on the specific constitutional arrangements of the country in question, international examples have nevertheless illustrated the competing constitutional interests at stake in all Westminster systems, including that of the UK.

Prorogation and Brexit

Prorogation has been raised in two specific contexts in the Brexit debate.

Firstly it has been mentioned as a mechanism by which the Government could seek to get around the “same question” rule in relation to approval of the Withdrawal Agreement. In general, once the Commons has taken a decision on a question, the same, or substantially the same, question may not be proposed again in that session. A new session would have allowed the Government to revisit approval for the Withdrawal Agreement, the Commons having rejected two versions of the negotiated Withdrawal Agreement and framework for the future relationship and explicitly rejected the Withdrawal Agreement in its own right in the 2017-19 Parliamentary session.

Secondly, a long prorogation has been mooted as an option to deliver a “no-deal” Brexit. The premise of such an idea is that MPs opposed to leaving without a deal could not then use Parliamentary procedure or legislation to frustrate that outcome if it were to become Government policy. This is possible because the default position in EU law is that the UK leaves the EU on 31 October 2019 without a deal unless:

a Withdrawal Agreement is ratified;

a further extension of Article 50 is secured (which requires both the European Council and the UK Government to agree to it); or

the United Kingdom revokes its notification of intent to withdraw.

A long prorogation has been defended by its advocates as a means of “honouring the referendum result” from June 2016. However, critics of such an approach maintain that a Prime Minister embarking on such a strategy would do so in defiance of the elected House of Commons, unnecessarily bring the Crown into a political dispute, and undermine the role of Parliament in the UK’s constitutional and democratic arrangements.

Prorogation being a prerogative power, there is no obvious legal mechanism by which Parliament could prevent its exercise otherwise than by passing legislation to constrain it. Parliament has legislated to constrain or replace the prerogative in the past. For instance, whereas previously the dissolution of Parliament prior to a General Election was an exclusively prerogative power, the calling of an election is now governed by the Fixed-term Parliaments Act 2011.

[1] s. 2 Parliament Act 1911 (as amended)