Blog

"... 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

7 Oct 2019
Prorogation  in the House of Lords. (© UK Parliament (CC BY-NC 2.0))
Prorogation in the House of Lords. (© UK Parliament (CC BY-NC 2.0))

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.

Mark Hutton, Clerk of the Journals, House of Commons
Chloe Mawson and Kate Lawrence, Clerks of the Journals, House of Lords
Mark Hutton,
Clerk of the Journals, House of Commons
Chloe Mawson and Kate Lawrence,
Clerks of the Journals, House of Lords

Get our latest research, insights and events delivered to your inbox

Subscribe to our newsletter

We will never share your data with any third-parties.

Share this and support our work

The Supreme Court's decision on 24 September that Parliament had not been prorogued required some thought to be given to what, then, in procedural terms had occurred on the evening of Monday 9 September.

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.

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.

If those items are deleted – if they in effect never happened – then the message from Black Rod that the Lords Commissioners requested the attendance of the Commons in the Lords and the consequent attendance could not be properly constituted proceedings of the House of Commons. The last proceeding in the Commons was therefore the suspension of the House which routinely occurs when a prorogation is expected.

Suspension is defined in Erskine May's Parliamentary Practice as "a temporary break in a sitting ... which ends with the resumption of the current sitting" (paragraph 17.15). It is thus not a state in which the Commons can continue to be for any prolonged period. Doorkeepers, attendants and others remain on duty, and access to the Chamber is restricted in the same way as during a sitting. When the House is suspended, the Mace remains on the Table as an indication of that fact.

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 the Lords, the last business before the prorogation proceedings was the reception of a message from the Commons that they had agreed to amendments to the Parliamentary Buildings (Restoration and Renewal) Bill. As with the Commons, there had been no motion put to adjourn the House and therefore – with prorogation struck down – the House was in limbo.

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.

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 Commons, the decision was taken that they should not have been recorded in the Votes and Proceedings. For that reason the Speaker in his statement on 25 September instructed that they should be "expunged" – an old-fashioned but well-precedented term which conveys an appropriate and reassuring finality. If you look at the Votes and Proceedings of Monday 9 September on the Parliament website, you will see that they have been corrected in consequence of the Speaker's statement. There is no record of the 'prorogation', just the statement that the House adjourned.

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.

Mawson, C., Lawrence, K, & Hutton, M. (2019), "... 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, (Hansard Society: London)

News / Democracy is in danger, warns Theresa May - Parliament Matters podcast, Episode 35

In a powerful Churchill Attlee Lecture commemorating the Hansard Society's 80th anniversary, former Prime Minister Theresa May delivered a stark warning about the state of democracy. She expressed grave concerns about the waning trust in democratic institutions, particularly among young people.

17 May 2024
Read more

Events / The inaugural Churchill-Attlee Democracy Lecture, given by the Rt Hon Theresa May MP

To mark the Hansard Society’s 80th anniversary, we have launched the Churchill-Attlee Democracy Lecture in honour of our first members, Winston Churchill and Clement Attlee. The inaugural lecture was given by former Prime Minister the Rt Hon Theresa May MP. All proceeds from ticket sales go to our 80th Anniversary Appeal. Date & location: Tuesday 14 May 2024, 7:00-8:30pm Westminster £10 tickets are now available for an online recording of the event.

14 May 2024
Read more

News / Is the Conservative Party falling apart? - Parliament Matters podcast, Episode 34

Following the local election results, are we now in zombie Parliament territory? With no immediate general election in sight what can be achieved in Westminster before MPs finally make their rendezvous with the voters? We talk to Professor Tim Bale about defeat, defections and the internal dynamics of the Conservative Party.

10 May 2024
Read more

News / Post Office Horizon scandal: What is Parliament doing about it? - Parliament Matters podcast, Episode 33

Should Parliament simply overturn the convictions of postmasters caught up in the Post Office Horizon scandal? That’s what the Government proposes to do through the Post Office (Horizon system) Offences Bill. But quashing of convictions is normally a matter for the courts. Some MPs have misgivings about setting a constitutional precedent as well as practical concerns about how the Bill will be implemented. We talk to the Chair of the Justice Select Committee, Sir Bob Neill MP.

03 May 2024
Read more

News / Is AI set to destroy trust in elections? Tackling misinformation in politics & Parliament, with top fact checker Full Fact's Chris Morris - Parliament Matters podcast, Episode 32

The emerging role of Artificial Intelligence (AI) in shaping political discourse is a potential game changer. It has the capacity to fabricate fake interviews and manipulate images, all of which could mislead voters and disrupt the democratic process. But could it affect the results of our elections? We talk to Chris Morris, the head of factchecking organisation, Full Fact, about the threats posed by these technologies, the potential scale of misinformation in politics, and the measures politicians and political parties need to take to counteract them.

30 Apr 2024
Read more