The prorogation of Parliament and decisions by the Supreme Court around that power highlight key constitutional principles that shape how democratic systems operate. When a government chooses to prorogue Parliament essentially pausing its activities until a new session begins it raises questions about the balance between executive authority and the foundational rules that govern a state. Courts, especially high or supreme courts, have a crucial role in interpreting constitutional principle and ensuring that prorogation does not undermine essential democratic functions. This topic explores the relationship between prorogation, constitutional principles, and the role of the Supreme Court in assessing these actions.
Understanding Prorogation
Prorogation is a formal procedure that ends a session of Parliament. Once prorogued, Parliament does not meet, bills that have not completed the legislative process may lapse, and parliamentary scrutiny of the executive is paused. In many Westminster-style systems such as the United Kingdom and Canada, prorogation is typically advised by the prime minister and formally enacted by the Crown or Governor General. The practice is long established and usually routine, but when used in unusual circumstances or for extended periods, it has raised constitutional questions and legal challenges.
Standard Use of Prorogation
In normal situations, prorogation is part of the regular parliamentary cycle and allows time between sessions for a new legislative agenda to be prepared. It is seen as a tool for resetting Parliament, allowing governments to introduce new policy priorities and giving lawmakers a break between legislative blocks. Small breaks in parliamentary sittings are often considered uncontroversial, as long as Parliament meets again without long delays that prevent its members from carrying out their roles effectively.
Constitutional Principles at Stake
Prorogation touches on fundamental constitutional principles, especially in countries with unwritten or partly written constitutions. Two of the most central constitutional principles involved are the sovereignty of Parliament and parliamentary accountability.
Parliamentary Sovereignty and Accountability
Parliamentary sovereignty means that Parliament is the supreme law-making body, and its ability to legislate and oversee the executive is vital to democratic governance. Parliamentary accountability means that the government must be answerable to Parliament for its actions. When prorogation is used in ways that significantly restrict these functions such as lengthy pauses in parliamentary business it may conflict with constitutional principles. Courts have considered whether such use of prorogation undermines the ability of Parliament to carry out its functions as both law-maker and oversight body.
The Role of the Supreme Court in Reviewing Prorogation
Supreme courts or equivalent high courts are tasked with interpreting constitutional law, including unwritten principles and limits on governmental powers. In several cases around the world, courts have been asked to determine whether a government’s decision to prorogue Parliament is lawful and consistent with constitutional principle.
Justiciability and Judicial Review
Before examining the substance of a prorogation decision, a court must decide whether the issue is justiciable meaning whether it is appropriate for judicial review. In some jurisdictions, courts have affirmed that decisions to prorogue can be reviewed by the judiciary, especially if they involve constitutional limits rather than purely political judgment. This reflects the broader constitutional role of the courts in ensuring executive actions comply with the rule of law.
The UK Supreme Court Case Miller/Cherry
One of the most prominent examples of a supreme court reviewing prorogation occurred in the United Kingdom in 2019. In R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, the UK Supreme Court considered whether an extended prorogation of Parliament was lawful. The government had advised the monarch to suspend Parliament for several weeks at a politically sensitive time.
Decision and Constitutional Principles
The UK Supreme Court ruled unanimously that the prorogation was unlawful and void. The court did not focus on the government’s intentions, but rather on the effect of the prorogation on Parliament’s ability to carry out its constitutional functions. The judgment emphasized that the power to prorogue must be limited by constitutional principles, particularly parliamentary sovereignty and parliamentary accountability. If prorogation significantly hinders Parliament’s constitutional roles without reasonable justification, the court held that it cannot stand.
Effects Test vs. Purpose Test
Rather than judging the motives behind prorogation, the Supreme Court adopted an effects test, assessing whether the impact of prorogation was to deny Parliament its essential functions. This approach reflects a constitutional principle-based review, ensuring that executive power cannot be used in a way that undermines democratic structures. By focusing on effects, the court reinforced a key constitutional principle the separation of powers and the necessity for Parliament to operate without undue interference.
Canadian Context and Constitutional Principles
In Canada, prorogation is similarly part of the parliamentary system, but the context of constitutional review differs somewhat due to the written Constitution, including the Charter of Rights and Freedoms. In early 2025, the Federal Court of Canada considered a challenge to prorogation, ultimately determining that it would not be set aside because the challengers did not show it exceeded constitutional limits. However, the court confirmed that prorogation is justiciable and subject to review, even if the specific challenge was unsuccessful.
Written vs. Unwritten Constitutional Principles
The Canadian case illustrates how both written constitutional provisions and unwritten constitutional principles can play a role in judicial review of prorogation. While the Charter and written laws provide specific limits such as requirements for parliamentary sittings courts can also consider broader principles like responsible government and legislative oversight. This blend of written and unwritten constitutional norms creates a framework for assessing whether prorogation aligns with the core values of constitutional democracy.
Why Prorogation Matters for Democracy
Prorogation, when used appropriately, serves as a procedural tool in parliamentary governance. However, it becomes controversial when it threatens the ability of elected representatives to legislate and hold the government accountable. Courts play a crucial role in maintaining constitutional balance by ensuring that executive actions respect foundational principles. Their willingness to review prorogation decisions underscores the importance of checks and balances in democratic systems.
Impact on Public Trust and Governance
High-profile court decisions on prorogation have a broader impact on public trust in governance. By clarifying limits on executive powers, courts help reinforce the idea that no branch of government is above constitutional constraints. This can enhance confidence in democratic institutions and ensure that political actors cannot bypass legislative scrutiny without justification. Understanding these constitutional principles and the judicial role in upholding them contributes to informed public discourse about the health of democratic systems.
The relationship between prorogation, constitutional principle, and Supreme Court review highlights the dynamic nature of constitutional law in modern democracies. Prorogation is a longstanding parliamentary practice, but it cannot be exercised in ways that undermine essential functions such as legislation and accountability. Supreme courts have affirmed that prorogation decisions are subject to judicial review and must align with constitutional principles such as parliamentary sovereignty and accountability. Through cases like Miller/Cherry in the United Kingdom and judicial authorization of review in Canada, courts demonstrate their vital role in upholding democratic governance. By interpreting and enforcing constitutional principles, supreme courts help ensure that government actions respect the rule of law and maintain the balance between branches of power.