"... as if the Commissioners had walked into Parliament with a blank sheet of paper": Parliament's procedural handling of the Supreme Court's nullification of prorogation
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The Supreme Court’s 24 September nullification of the prorogation that had at that point been underway presented Parliament with a procedural and record-keeping problem. Here, the Clerks of the Journals in the two Houses explain how it was resolved.
The Court decided that since the advice to prorogue Parliament was unlawful, the consequent Order in Council was unlawful and should be quashed, and the actual prorogation, as declared by the Lords Commissioners in the House of Lords on that evening, was itself “unlawful, null and of no effect” (paragraph 69).
The Court was able to make the final part of this determination because it had earlier satisfied itself that, although prorogation took place in the House of Lords, “it cannot sensibly be described as a ‘proceeding in Parliament’” (paragraph 68). This was because it was something done to, not by, Parliament. If the Court had concluded that prorogation was a proceeding in Parliament, it would have been barred from questioning or impeaching its legitimacy by Article 9 of the Bill of Rights.
Nullifying prorogation in the House of Lords
The effect of the Supreme Court’s decision was to make the prorogation activities which took place in the House of Lords on 9 September null and void.
But, after the suspension on 9 September, neither of these things happened:
The Chamber was open to the public the following day.
The Mace accompanied the Speaker to the Lords and, as is usual at a prorogation, did not return to the Commons Chamber.
Normally, the House of Commons can be adjourned only by the passing of a motion to that effect. It is the regular use of such a motion which permits the regular end-of-day ‘adjournment’ debate.
But the House can adjourn without a motion, as – for example – in cases of grave disorder under the provisions of Standing Order No. 46.
The House of Commons was not prorogued (the Supreme Court had determined that). It was not suspended (because suspensions cannot continue indefinitely, access to the Chamber was not restricted and the Mace was not on the Table). It could only be adjourned. That adjournment derived from the reality of the situation and the terms of the House’s own Standing Orders, which set and limit its sitting times.
In both Houses the respective Speaker instructed that their Houses be recorded as adjourned. These announcements did not cause the adjournments, but were intended to provide clarity and certainty as to Parliament’s interpretation of consequences of the Supreme Court’s decision. In particular, they set out the basis on which the calculations of certain statutory periods relating to secondary legislation and to treaties have been made.
Parliamentary records
But what of the record of what happened in both Houses? As noted above, what had occurred could not be considered to be properly constituted proceedings.
In the House of Lords, the Lord Speaker instructed that the ‘prorogation’ event recorded in the Minutes of Proceedings should be “disregarded”. The record of prorogation proceedings will remain in the Journals of the House but next to those entries will appear a correction reflecting the Lords Speaker’s statement. This should help future historians understand what actually happened.
But what about the other records of proceedings such as Hansard? The Hansards of the two Houses are not a procedural record of events, and all the proceedings of 9 September in both the Commons and the Lords are still recorded without comment. The Hansards of both Houses for 25 September start with the words of the two Speakers explaining the effect of the Supreme Court judgement.
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