The recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis.

Codification of the power to dismiss a government

Take for example the region of Western Nigeria in the 1960s. Its Constitution provided that the Governor shall not remove the Premier from office unless it appeared to him that the Premier no longer commanded the support of a majority of the Members of the House. On 20 May 1962, the Governor dismissed the Premier, Chief Akintola, after receiving a letter signed by a majority of Members saying that Akintola had lost their confidence. Akintola was denied the opportunity to face a vote of confidence in the House. The Governor instead appointed Alhaji Adegbenro as Premier. 

Akintola challenged his dismissal in court. On 7 July 1962, a majority of the Federal Supreme Court of Nigeria held that a vote on the floor of the House was necessary before the Premier could be dismissed. Chief Akintola was therefore invalidly dismissed and still Premier, but for an intervening state of emergency. When the state of emergency was lifted in December 1962, Akintola was restored as Premier and later won two votes of confidence in the House.

On 27 May 1963, the Privy Council reversed the judgment on appeal. It held that the Governor could validly dismiss the Premier without a vote of no confidence on the floor of the House. This meant that Adegbenro, not Akintola, was validly Premier at the time the state of emergency was lifted. But what of the two votes of confidence in Akintola since then? 

The mess, which had now gone on for almost a year, was finally resolved by the Constitution being amended with retrospective effect to provide that the Governor shall not remove the Premier from office unless a vote of no confidence is passed by a majority of the House. So Akintola’s original dismissal was nullified with retrospective effect and his premiership confirmed. 

This example shows that in some cases, such as the appointment and removal of Prime Ministers, it may be better for matters to be determined quickly and decisively by a head of state without long legal proceedings which can see government swinging from one side to the other, with all the ensuing economic and social cost.

Hence, while abrogating prerogative powers and placing them on a statutory footing may be appropriate in some cases, adding clarity and imposing democratic limits on the exercise of the powers, in other cases it may be problematic. Care needs to be taken as to which prerogatives should be abrogated or regulated by statute, and which are better left to work flexibly and decisively in the realm of principle and convention. In addition, care needs to be taken as to how any legislative reform is done and what are the possible consequences of any particular conditions imposed upon prerogatives, or regulation as to how they operate.

Codification of the power to prorogue and dissolve

An example of a poorly considered effort at replacing prerogative and conventions with statute is the Fixed-term Parliaments Act 2011. Despite contrary intentions, this has not resulted in greater clarity, or reduced the risk of the Queen being drawn into a political controversy, or prevented the prospect of litigation. 

The Act sets fixed election dates and allows for an early election, such as when there has been a vote of no confidence in Her Majesty’s Government. In such a case there is a 14 day period in which the government can regain confidence, or confidence can be voted in a newly formed government, which averts the automatic holding of an election. But the statute does not address what is to occur within these 14 days, including the circumstances in which a new government can be formed and the House’s role in it. Further, it grants to the Prime Minister the power to advise the Queen as to when the election is to be held. 

This potentially leaves the Queen in a difficult position if, for example, the Prime Minister advises her to prorogue parliament so that the House cannot indicate that it has confidence in someone else to form a government within the 14 days, or advises the Queen that the ensuing election should be held in two years’ time, or refuses to advise any election date at all. 

While there would be significant pressure on the Queen to refuse prorogation in such circumstances, or to dismiss a Prime Minister who had lost confidence but continued to govern without setting an election date within a prompt timeframe, it may be that the courts have provided an alternative route for addressing the issue.

In the aftermath of Miller No 2, a court might consider that the scope of the power to prorogue parliament is limited so that a government that has lost confidence cannot, without a reasonable justification, prevent the House of Commons from expressing its confidence in someone else to form a government, and voting confidence in such a government before the expiry of 14 days, to avert an intervening election. 

As in Miller No 2, this might be the exceptional kind of case, where a strict timing imperative is involved, which permits judicial intervention. But here, two competing constitutional principles would arise – responsible and representative government. On the one hand, the House has the power to make and unmake governments through the bestowal of its confidence, but on the other, the people in elections have the primary role in deciding who should govern. How a UK court would reconcile these principles is uncertain. The statutory provisions do not provide the answer.

Similar issues have arisen, however, in other countries. They show that the courts generally place great importance on representative government and the will of the people as expressed in elections. Even if a dissolution was obtained in breach of legal requirements, a resulting election will not ordinarily be undone. As the Court of Appeal of Fiji stated in Yabaki v President of the Republic of Fiji, once an election is held, it is too late to ‘turn the clock back’, even if there were legal irregularities on the path to it.

Conflicts sometimes arise where opposition parties seek to overturn the government through a motion of no confidence and form a new government without an election but the government then secures a dissolution. This occurred in Vanuatu in 1997. The dissolution was challenged in court by 31 MPs. The Court of Appeal considered that the rights of the people to choose their parliament in an election must take priority over that of MPs to express their lack of confidence in the Prime Minister. The principle of representative government took priority over the power of the House to place its confidence in another government.

In contrast, when a similar conflict arose in Nepal, the court supported the right of MPs to have their vote of no confidence determined. The court had to consider how two constitutional provisions interacted. Art 53(3) of the Constitution provided that if during the prorogation or recess of the House of Representatives, a quarter of Members request that a special session of parliament be summoned, the King shall summon parliament and it shall sit. Having received the requisite request, the King summoned parliament to meet on 16 June 1994. But art 53(4) provided that the King may dissolve the House of Representatives on the recommendation of the Prime Minister. The Prime Minister so advised and the King dissolved the House, setting the election date as 23 November. When the dissolution was challenged, it was argued that the House could not be dissolved under art 53(4) after it had already been summoned under art 53(3). A majority of the court agreed, holding on 28 August that the dissolution breached the ‘letter and spirit’ of the Constitution and was invalid.  

The majority accepted that the question of whether or not a dissolution should occur was largely a political question into which courts should not inquire. But it was still the duty of the court to settle the legal and constitutional questions involved.

The court held that once a special session was ordered under art 53(3) it had to proceed. There could be no prorogation or dissolution until it had dealt with the matter for which parliament had been summoned. This was necessary to allow parliament properly to scrutinise the executive. Otherwise a Prime Minister who controlled both prorogation and dissolution could become a despot.

In this case, the explicit text of the constitution was no help as to how to read together its different sections. Resort was therefore had to fundamental constitutional principles to resolve conflicting interpretations. They are the same principles that a UK court would need to consider if a Prime Minister sought to prorogue parliament in the 14 days after a vote of no confidence.  

The abrogation and regulation of the prerogative by the Fixed-term Parliaments Act has therefore not avoided uncertainty or potential judicial intervention – although a degree of clarity could have been achieved if the statute expressly provided that parliament cannot be prorogued during this 14 day period, as does the equivalent New South Wales provision.  

Conclusion

Calls to replace all prerogatives with legislation as a reaction to the recent prorogation controversy should be treated with wariness. While some prerogatives may be better dealt with by legislation, that cannot necessarily be said for all of them. It is important to be discerning in determining which prerogatives to codify in statute and to be very careful as to how this is done, with particular consideration being given to how other prerogatives may be affected in different scenarios. Most of all, it is important to remember that many former British colonies have already taken this path, so there is a wealth of experience, both good and ill, which can be drawn upon, rather than working in a vacuum.

This blog is based in part on Professor Twomey’s contribution to the Unit’s recent event, Prerogative versus Parliament: What can be Done?, which was held on 23 October. For video of the event (the panel for which also included Professor Alison Young of the University of Cambridge), visit our YouTube channel.

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About the author

Anne Twomey is Professor of Constitutional Law, Director of the Constitutional Reform Unit at the University of Sydney, and author of The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems.