To Prorogue or not to Prorogue: Miller II and MacKinnon v Canada

Helen Davies KC: I am delighted to welcome our speaker, the Lady Chief Justice of England and Wales, Baroness and Master Sue Carr. The Lady Chief was appointed in 2023, becoming the first woman in over 800 years to hold this ancient and prestigious office. Tonight, the Lady Chief turns her attention to one of the most constitutionally significant cases of our time, the prorogation judgment in Miller and the Prime Minister, as well as the Canadian judgment in MacKinnon and Canada. We are also delighted to be joined this evening by Baroness Hale, who was the President of the Supreme Court at the time the Miller judgment was delivered.

Lady Carr: To be or not to be? For Hamlet, that was the question. To prorogue or not to prorogue? That was the question that faced the UK Government, and then the Supreme Court, in 2019, in Miller II. It was also the same question that the Chief Justice of Canada faced in MacKinnon against the Attorney General for Canada this year. I want to explore some of the issues that arose from the two decisions, to compare the approaches taken – approaches that led one court to decide that it was a case of ‘to not prorogue’, and the other to decide that it was a case of ‘to prorogue’.

I’m going to start with Miller II. It was twenty to two in the afternoon, 10 September 2019. The Lord Privy Seal informed Parliament that it was prorogued until 14 October. Fourteen days earlier, the Lord President of the Privy Council, the Lord Privy Seal and the Conservative Party’s Chief Whip had travelled to Balmoral Castle. There, at a meeting of the Privy Council, advice was given to Her Majesty, and an order in Council made, setting in train the events that took place that day in Parliament.

Ordinarily, prorogation is a routine event. But on that September day, the Lord Privy Seal was not met with the usual parliamentary shrug of the shoulders. Opposition MPs sang. Many held up signs with one word written on them: SILENCED. The Speaker of the House of Commons was clear: this was not a standard or normal prorogation; it represented an act of executive fiat. It wasn’t standard because its length meant that Parliament would not sit for 34 days, a much longer period than normal. If that wasn’t unusual enough, legal proceedings were then commenced in Scotland, England and Wales, and Northern Ireland challenging the legality of the prorogation.

The background of the events was Brexit. That had been subject to a national referendum in 2016. The consequences of that decision had already been a subject of one set of proceedings in the Supreme Court, Miller I. Earlier in 2019, it had become apparent that the use of prorogation was on people’s minds as a means to halt parliamentary scrutiny of the process by which the UK was to give effect to Brexit. Professor John Finnis argued that prorogation was just what was needed to secure the UK’s exit from Europe. Taking the opposite view, the Speaker of the House of Commons suggested that he would fight with every breath against prorogation. MPs took steps to mitigate the risk of a long prorogation to ensure that Parliament’s voice would not be stilled; that it could be heard at what was a crucial time in the culmination of the Brexit process.

In Scotland, legal proceedings came before the Court of Sessions’ Inner House, allowing an appeal from its Outer House, ruling that the prorogation was both justiciable and unlawful. It held that the Prime Minister had acted with the improper purpose of stymieing Parliament. The Divisional Court in England and Wales took the opposite view. Prorogation was not justiciable. Consequently, it was not for the courts to consider if it was lawful or not. The Court in Northern Ireland didn’t rule on the issues, given the previous judgments.

With such opposing judicial views in two jurisdictions, the scene was set for the Supreme Court to enter stage left. It first held that prorogation was justiciable. It went on to hold that a decision to prorogue, or to advise the monarch to prorogue, will be unlawful if the prorogation has the effect of frustrating or preventing without reasonable justification the ability of Parliament to carry out its constitutional functions as legislature, and as the body responsible for the supervision of the executive. It went on to hold that the Court would only intervene “if the effect is sufficiently serious to justify such an exceptional course”. In this case, it held it was so exceptional the prorogation was unlawful, and as a consequence, a nullity. It was as if Parliament had never been prorogued.

The background to MacKinnon starts on 25 November last year, on Truth Social. On that day, President-elect Trump posted a message aimed at the United States’ next-door neighbour; on his first day as President, he would bring into effect a 25 per cent tariff on all Canadian and Mexican products entering the United States. This was followed by further posts in which he referred to the Canadian Prime Minister as “the Governor” and Canada as the “great state of Canada”.

On 16 December, the Canadian Finance Minister resigned from government. She said that the incoming American administration was pursuing a policy of aggressive economic nationalism, and that Canada faced a grave challenge. Two days later, the Canadian Parliament was adjourned for the Christmas and New Year recess, scheduled to resume on 27 January. But on 6 January, the Canadian Prime Minister announced his intention to resign, and the Governor General, on the advice of the Prime Minister, issued a proclamation proroguing the Canadian Parliament until 24 March.

As had happened over here, objection was taken to the prorogation. Applications to challenge the decision to prorogue were issued. They stated that the Prime Minister had advised the Governor General to prorogue Parliament for an improper purpose; that he had done so as part of a stratagem designed to interrupt the business of Parliament and stymie the publicly stated intent of a majority of the House of Commons to bring a motion of no confidence in the government.

In reaching its decision, the Federal Court noted, and drew upon, Miller II. The Chief Justice in Canada concluded that the issue was justiciable, so agreeing with the Supreme Court on that point. But the Chief Justice took a different approach on the question of the prorogation’s legality. Unlike here, the Canadian prorogation was held to be lawful.

The Chief Justice in Canada concluded that the issue was justiciable, so agreeing with the Supreme Court on that point. But the Chief Justice took a different approach on the question of the prorogation’s legality.

The two decisions show differences in approaches to the law, and I’d like to highlight three. The first issue that the Supreme Court had to determine was the one of justiciability; was the Court the proper constitutional venue for resolving disputes over prorogation? The Supreme Court noted a distinction between two questions. The first focused on whether a prerogative power existed, and if so, what its extent might be. Such questions, it noted, were essentially legal ones, and so well within the Court’s jurisdiction.

The second question focused on whether a power that exists, and has been exercised within its legal limits, can be subject to legal challenge on another basis. That question may or may not be within the Court’s jurisdiction. The Court had to determine whether a legal limit existed in respect of the power to prorogue, and if so, whether the Prime Minister went beyond that limit, or whether the appeal concerned the lawfulness of the exercise of its powers within its lawful limits. Was it an example of the first or second question? The Court’s answer was that the appeal was concerned with the first. It was concerned with the limit or the scope of the prerogative power, and so well within the Court’s jurisdiction.

The first issue that the Supreme Court had to determine was the one of justiciability; was the Court the proper constitutional venue for resolving disputes over prorogation?

How does that compare with the approach taken in Canada? The first difference is that a different argument was advanced in Canada. The starting point for the Canadian government was that the case there was not concerned with the exercise of a prerogative power. On the contrary, it was argued that power to prorogue was a matter of constitutional convention. This argument was dispatched swiftly by the Chief Justice on the basis that it was well-established in Canadian authority that the giving of advice by the Canadian Prime Minister was the exercise of a prerogative power. The conclusion there, therefore, was to find that this too was such a case.

The second difference between the two judgments stems from another argument raised by the Canadian government. It was argued in Canada that Miller II could be distinguished because the Supreme Court had assumed that the Queen had to act on the advice of the Prime Minister. By contrast, the Governor General of Canada was not required to act on the advice of the Canadian Prime Minister. It was argued that the power to prorogue was a reserve power of the Crown, a personal prerogative. The Chief Justice concluded that the Governor General had acted on the advice of the Prime Minister, but he did not reject outright the idea that the power to prorogue might be a reserve power.

The third and most significant difference between the two judgments is that the Canadian Court declined to apply the approach taken in Miller II. Whilst also accepting that the decision to prorogue was justiciable, Canada rejected an invitation to adopt the approach of the Supreme Court to determine if the decision was a lawful exercise of the prerogative. The decision was due to several factors. The most significant of these was that the approach in Miller II was informed by the uncodified nature of our Constitution. The UK system is one of parliamentary supremacy, in contrast to Canada’s system of constitutional supremacy.

The UK system is one of parliamentary supremacy, in contrast to Canada’s system of constitutional supremacy.

Finally, I want to turn to the last question considered by the Supreme Court. The question is whether the courts actually have the jurisdiction to hear the challenge in the first place. This is about Article 9 of the Bill of Rights 1689: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” The essential point put by the government before the Supreme Court was that prorogation was a proceeding in Parliament, and thus its validity, and that of any decision leading to it, could not be questioned in legal proceedings.

The Supreme Court dealt with the issue shortly. First, it noted that the Bill of Rights and its Scottish equivalent, the Claim of Right, were both acts of Parliament. They were thus both for the courts to interpret. Secondly, the Court noted that Erskine May’s Parliamentary Practice made clear that the primary meaning of ‘proceedings’ was some formal action, usually a decision taken by the House in its collective capacity. This, said the Court, clearly encompassed parliamentary debates, actions, decisions. The Court concluded that prorogation was not a proceeding in Parliament. The debate on this point is one that will no doubt continue.

A broader point can be taken from the judgments, one that does not concern the substance of the decision in Miller II, but the broader role that judgments can have. It is sometimes said that our civil justice system exists to resolve disputes. It is also sometimes said that our civil justice system is not a system of judgments, but a system of settlement; that it operates to promote the resolution of disputes in many other ways than judgment. But our civil justice system has a much wider role. Professor Jolowicz put it this way: “Civil proceedings serve to demonstrate the effectiveness of the law. Secondly, they provide the opportunity for the judges to perform their function of interpreting, clarifying, developing and, of course, applying, the law.”

The two prorogation judgments did just that. They demonstrated how, as a society, we determine matters through constitutional, through legal, means, rather than through the application of might. Judgments are one of the means by which our courts are democratically accountable. Such accountability has several facets. That includes that judgments can and do play an educative role. As judgments interpret, explain or clarify the law, they provide the means through which society gains an understanding from it. They are one aspect of what it means to have an open society, where issues of substance of differing opinions are aired, discussed and then, ultimately perhaps, subject to parliamentary consideration and legislative action. Rarely – as the prorogation cases have demonstrated – will it be the case that once judgment is given, as it was for Hamlet, that the rest is silence.

The Rt Hon the Baroness Carr of Walton-on-the-Hill
Lady Chief Justice of England and Wales
Inner Temple Bencher

For the full video recording:
innertemple.org.uk/prorogue