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
Royal Commissioners at Prorogation in the House of Lords. (© UK Parliament (CC BY-NC 2.0))
Royal Commissioners at 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 / Assisted dying bill: Special series #4 - Parliament Matters podcast, Episode 74

In this fourth instalment of our special mini-podcast series, we take you inside the Public Bill Committee as it scrutinises the Terminally Ill Adults (End of Life) Bill - a landmark proposal seeking to legalise assisted dying. The Committee is in full swing, debating amendments, and tensions are running high. We sit down with Sarah Olney MP, a key player in the discussions, to unpack the latest developments.

14 Feb 2025
Read more

News / A WhatsApp purge in Parliament? - Parliament Matters podcast, Episode 73

In this episode we dissect the fallout from Labour’s WhatsApp purge following the Andrew Gwynne affair and what it means for political communication at Westminster. We also explore the latest news from the House of Commons Modernisation Committee, discussing its focus on improving accessibility to Parliament, legislative scrutiny, and the debate over MPs holding second jobs.

14 Feb 2025
Read more

Briefings / The assisted dying bill: How does the amendment process work?

The assisted dying bill (Terminally Ill Adults (End of Life) Bill) is now at the Committee stage, where a Public Bill Committee reviews the bill clause by clause. This briefing outlines the Committee’s role, how MPs propose changes to the bill and where these are published, how the Chair selects and groups amendments, and how these are debated and voted on.

10 Feb 2025
Read more

News / Assisted dying bill: Special series #3 - Parliament Matters podcast, Episode 72

The assisted dying bill is about to undergo detailed scrutiny by the Public Bill Committee - a group of 23 MPs tasked with reviewing the Bill’s text and proposing amendments to refine and improve it. But what exactly happens during this amendment process? Former House of Commons Clerk, Paul Evans CBE, breaks it down. Plus, we hear from Dr Ben Spencer MP, a former consultant psychiatrist turned parliamentarian, who has proposed dozens of amendments to the Bill.

07 Feb 2025
Read more

Briefings / Assisted dying - The Terminally Ill Adults (End of Life) Bill: Rolling news

Stay informed with updates and analysis on the Terminally Ill Adults (End of Life) Bill as it moves through Parliament. Learn about the debates, procedures, decisions, and key milestones shaping the assisted dying legislation.

21 Jan 2025
Read more