Reforming prorogation

In Canada there was a bit of a controversy over the Prime Minister Stephen Harper’s prorogations of parliament in 2008 and 2009, and more recently Premier Dalton McGuinty’s prorogation in Ontario. In Harper’s case, and cited as part of the reason in McGuinty’s too, the leader of the minority government requested that the Governor General prorogue parliament so that he would avoid a vote of confidence.

Federally, the Governor General Michaëlle Jean caused a few sweaty brows in the Prime Minister’s Office before eventually acquiescing. Provincially, the Lieutenant Governor didn’t put up any fight so far as we know. These vice-regal actions are entirely within the existing constitutional practice of Canada, and indeed the UK and other Commonwealth realms; prorogation is not a power reserved for the discretion of the Queen nor her representatives. Nevertheless some people have pointed out how restrictive provincial and federal governments are becoming over parliaments in Canada, and make a good point that heads of government have the constitutional right to do this. That doesn’t meant that they should have this right, of course.

Prorogation has real consequences for the government. It essentially kills all parliamentary business that hasn’t had a carry-over motion (something that only exists in the UK or certain sub-federal parliaments*) or, if you’re in the Canadian federal parliament, private members’ business. No parliamentary scrutiny – whether questioning of ministers, scrutiny of legislation or voting (a lack of) confidence in a government – can take place for up to twelve months on one (usually) man’s say-so. That’s not to say there’s no price for the prime minister – the government loses all of their bills – but is this a power we want the prime minister to have? I don’t think so. The prime minister should not have the power to stop parliament doing its job of scrutinising the government, even if it hurts the government in the process.

Federal Canadian parliaments have no set length for sessions; since the late 1960s session lengths have progressively become less and less consistent. Provincially, practice varies but appears to generally have also become less regimented. In the UK, it is a convention that sessions last around a year and barring the odd change to account for elections it used to happen like clockwork every November in a non-election year. But the recent coalition changed that unilaterally. They took a two-year session, the longest since at least 1689, and have switched the date for prorogation to May, the usual time for elections. While this does regularise session lengths, the two-year session was entirely for partisan reasons.

Prorogation is often said to have originated in the Tudor days when Henry VIII wanted to shut down parliament without having to call a new election. However, that’s not accurate. It originates from long before that** (EDIT: apparently this requires a subscription; essentially it’s one of King Edward II’s parliaments which was prorogued for some time before resuming), with some examples of the King during the Wars of the Roses using prorogation for political reasons – to avoid parliament meeting while the King suffered a mental illness, for example. It’s true that Henry VIII abused prorogation to his own ends against the conventions of the age: before his reign the longest parliament by far was nearly two and a half years whereas Henry VIII had one that was six-and-a-half years with at least four sessions. The difference, however, is in the length of the parliament not the number of sessions (which was not abnormal for the late 15th Century).

Henry VIII may well have abused it, but he had very few quarrels with parliament and preferred to rule through it rather than over it unlike some of his predecessors. The word itself has its origins in prorogatio, the Latin word for extending the life of an office or person. In particular, the “extension of a commander’s imperium beyond the one-year term of his magistracy” according to Dan Byles MP. So rather than ending the parliament after the end of it’s natural life (IE, when the business before it is complete), it implies that we extend it.

Indeed, in parliaments where prorogation is no longer a regular occurrence, it is used mostly to clear the decks of previous business and start again; it serves as a useful firebreak as Damien McBride would say to take command of the news agenda. In the UK it’s less useful for that because of the convention that prorogation happens yearly and is more inflexible. There is also an incentive for UK governments to keep sessions as short as possible: opposition in the House of Lords can be overruled in a subsequent session.

None less than Mr Jack Straw MP, former Lord Chancellor and Labour cabinet stalwart, cited the potential for abuse of prorogation during the passage of the Fixed-term Parliaments bill, which fixed the length of a parliament and allowed for an early dissolution only on the vote of two-thirds of the members of the House of Commons or after fourteen days when the House has no confidence in a government. Other notable agitators for reform were Labour’s Chris Bryant MP and the Conservatives’ Eleanor Laing MP.

The Lords’ Constitution Committee was cautious on this, siding with the Canadian Professor Milner that the chances of a repeat of the Canadian situation occurring here are very low, and he’s correct. But in Canada, there is now an epidemic of governments proroguing or adjourning parliament for significant lengths of time. Some witnesses seemed to miss the point that the Canadian situation was before the vote of confidence took place, and hence a wise constitutional monarch would have little choice but to agree with the still-prime minister who as yet had not lost the confidence of the House even if they would lose it without a prorogation. I wouldn’t however want to bet that such a thing would never happen though, and it seems sensible to fix the loophole before some desperate prime minister gets to misuse it.

The options are fourfold:

The status quo: leave it to a prime minister with the confidence of the House of Commons advising the Queen, hope that social and political pressure on governments causes them to stop. Pros: requires no legislation. Cons: closes no loopholes and might not even work.

Abolish sessions: Do as the Australian Commonwealth parliament has done and effectively link sessions to parliaments so that there is only one state opening and (perhaps) one prorogation. Pros: would likely eliminate the abuse. Cons: requires legislation to be made watertight, takes away the threat of losing legislation delayed by opposition, and (in the UK) has very serious implications for the powers of the House of Lords thanks to the Parliament Acts.

Transfer the power to Parliament/the House of Commons: This was the solution as envisaged by Chris Bryant and Labour the other year. The Commons would need to pass a resolution for the Speaker to request that the parliament be prorogued. Pros: limits the government’s room to manoeuvre. Cons: still has potential for abuse with landslide or tightly-whipped governing parties – such as in Canada, Australia and the UK.

Abolish the power: Simply fix the length of sessions in statute with some flexibility built in. This regularises the process and takes it out of everyone’s hands. Pros: Abuse likely eliminated. Cons: Could disrupt the legislative program of governments.

I’m most in favour of the last, because it restrains the power of the government the most and maximises parliamentary leverage over government legislation (IE the threat of losing it if the session runs out) . Here’s the substance of a bill for Ontario:

Post-election opening dates

1. Once Parliament has been dissolved a proclamation shall be issued that summons Parliament with the date of the first meeting to be on the second Monday after polling day.

Proroguing Parliament pre-Dissolution

2. In years in which an election occurs under the provisions of the Election Act or where the Lieutenant Governor dissolves the Legislative Assembly by right of the constitution, a proclamation shall be issued to prorogue parliament one working day before the proclamation for the dissolution of Parliament is made.

Proroguing Parliament in all Other Cases

3. In all other years, exactly one year after the last prorogation to the nearest working day in each calendar year following the passage of this legislation a proclamation shall be issued to prorogue Parliament until a date within two working days after prorogation.

Proclamations

4. This Act does not affect the way in which the sealing of a proclamation summoning a new Parliament or proroguing a current Parliament may be authorised; and the sealing of a proclamation to be issued under this Act may be authorised in the same way.

Powers of the Lieutenant Governor

5. This Act repeals the prerogative power of prorogation and no proclamation for prorogation shall be made except under the provisions of this Act.

Commencement

6. This Act comes into force on the day it is passed.

Short Title

7. The short title of this act is the Meeting of Parliament Act, 2012

And, just for kicks, here’s the bill mocked up imitating Ontario’s bills. Here’s one for Canada’s federal Parliament and one for the UK, complete with consequential amendments.

Parliament will hence only be prorogued for an election campaign or three days outside of that. Sessions will tend to be about a year long with early elections either cutting them short. Parliament will have more of a chance to change the ministers’ minds over bills by potentially delaying them past the end of the session.

Of course, personally I’d combine this bill with a change to standing orders in the Commons to let the Speaker recall the House of Commons on his own and hence take control of adjournment out of the government’s hands too, but that’s another post altogether…

*Though it is sometimes less of an issue elsewhere because sessions in the national parliaments of Australia and New Zealand are exactly the same length as the parliaments, and in New Zealand it doesn’t affect any business before parliament anyway. State/province practice varies.
**In fact, earlier examples show prorogation as a tool to delay the opening of parliament before the date of the original summons was reached, though I’d be surprised if that was its original intended use.
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12 Responses to Reforming prorogation

  1. Dear Sir or Madame,

    I quite like your blog and shall include it on my blogroll on Parliamentum at once! (Coincidentally, we’ve both been blogging on the same subject for approximately the same amount of time, and we’re both using WordPress’s “Twenty-Ten” theme). I thank you also for linking to my column “McGuinty Has Every Right to Prorogue.”

    I also see that you had originally cited Peter Russell’s incorrect assertion that Henry VIII “invented” prorogation. (Another Canadian scholar named Bruce Hicks also parroted this false narrative). This claim is also demonstrably false, as I shall soon show in an upcoming blog entry. Cox and Syme show in their books from the mid-19th century that prorogation first emerged under the reign of Richard II — well before the Wars of the Roses and the Tudor Dynasty.

    Overall, we would disagree on this issue. I take the view that the Sovereign or Governor does not possess the discretion to reject a Prime Minister’s advice to prorogue. And even if a Governor did so reject prime ministerial advice (a legal but unconstitutional action), he would also force the resignation of the First Minister, which itself would only exacerbate the constitutional crisis. That said, you’ve raised good, substantive arguments for your case.

    I must point out, however, that the latter option that you prefer — of putting the prerogative power of prorogation into abeyance and transferring the power to the Crown-in-Parliament (or maybe even just the House of Commons) by statute — is simply not possible in Canada, neither at the federal level nor in any province. In Canada, only a constitutional amendment pursuant to s.41(a) of the Constitution Act, 1982 (“Office of Queen, Governor General and the Lieutenant Governor of a Province) can abolish a prerogative power of the Crown and vest that power in Parliament. In addition, s.41 outlines the parts of the Constitution of Canada that require the *unanimity* of the Parliament of Canada and all 10 provincial legislatures.

    I stumbled upon your blog while researching for my next blog entry (or possibly even another newspaper column) on Clement Attlee’s “political” prorogation of 1948, which allowed the Commons to pass what became the Parliament Act, 1949 pursuant to the “three sessions” identified in the Parliament Act, 1911. You also linked to Mark Jarvis’s column denouncing McGuinty’s political prorogation. He and some other Canadian scholars have contended — quite incorrectly — that of the four core Commonwealth Realms, only Canadian First Minister have “abused” the prerogative of prorogation. But this is demonstrably false; Clement Attlee and John Major both engaged in controversial prorogations. Do you know of any British scholars who have written on this subject? I would appreciate any suggestions that you could provide.

    James

    • pp549 says:

      Hi James,

      Thanks for including me on your blogroll – much appreciated, and I’ll return the favour shortly when I get my own blogroll up and running! I’m a big fan of your blog, and I’m considering citing my blog posts where appropriate because I like how helpful it makes your blog posts.

      I am definitely looking forward to this article – I had only had time to look for prorogations earlier than Henry VIII so examining their origin will be excellent.

      I do agree with you that at it would be unconscionable for the Crown to reject formal advice and I need to change some of the wording on the UK bill (which was simply looking to retain the style of language without losing the core function of the bill) to ensure that there would never be actionable advice for the Crown to reject. Your arguments too are well-made, but it does seem we disagree.

      Also, it does appear you’re correct on the Constitution of Canada; coming from the UK where constitutional amendment is easy as any other bill made it easy to assume it would be the same in Commonwealth countries with formal constitutions. The Act does set a very high bar on such constitutional amendments!

      The ten-day session of 1948 isn’t mentioned much in the literature I’m afraid. One article of interest is by Hitchner at http://www.jstor.org/stable/10.2307/442942; there is a (very) brief mention by Tomlinson in http://www.jstor.org/stable/10.2307/175810.

      That’s all that I can really find about it, though the Hansard from the time (http://hansard.millbanksystems.com/sittings/1948/sep/) might be helpful. I wonder if there’s anything about it in the Australian/New Zealand literature…

      • Thank you very much! I read Hitchner’s article last night and found it quite useful.

        As some of my correspondents and I have noted, the Attlee government never shied away from the tactical use of prorogation and publicly acknowledged that the prorogation and short session helped ensured the passage of the Parliament Bill. I just wish that Canadian Prime Ministers and Premiers who used prorogation tactically were forced to acknowledge their crassness publicly.

        Some Canadian scholars have made the absurd suggestion that the Governor General and the provincial Governors should issue reasons explaining these “controversial” uses of prorogation and dissolution. I characterize that proposal as absurd because it derogates from the principles of Responsible Government: *Ministers of the Crown* take responsibility for all acts of the Crown. In that way, they protect the Sovereign or Governor from criticism and ironically reinforce that old principle of royal infallibility. Incidentally, this is why a Governor who rejects a Prime Minister’s capital-c “Constitutional” advice also dismisses him from office: a Prime Minister and Cabinet can no longer take responsibility for ALL acts of the Crown if the Governor has rejected ministerial advice. I propose the opposite solution: the Prime Minister must give an account for having offered the Governor or Sovereign the advice to prorogue or dissolve.

      • pp549 says:

        Sorry for the late reply – things are incredibly hectic at the moment for me.

        Glad you found it useful! And yes, Attlee’s government was very clear on the measures it was willing to use, though not so much on why they were using them (coal and steel nationalisation, if I remember correctly).

        I agree that the onus should not be on the Crown to explain why a prorogation, etc, was necessary for the reasons you state. Also, in my mind to best maintain the brand of the Crown it is necessary to stay above controversy and partisan politics. If it has been involved in a decision which is made controversial by a political party then, in a way, it has failed in that task.

        That said, it’s often politicians who put the Crown in that position (Harper 2008, Fraser/Whitlam 1975, etc) and so I’m quite sympathetic to the representatives of the Crown who did the only logical thing by the principles of responsible government.

        Your suggestion has the advantage of sticking to the principles of responsible government and the old adage that democracy is government by explanation!

      • Alan says:

        James.

        I am astonished to learn that a major principle of responsible government has been abandoned in Australia. Since 1975 the both the governor-general and the state governors have regularly published their reasons for controversial cations. A recent example is the statement of the Governor of Tasmania on the formation of the government after their last sate election. Even in 1975, the governor-general published his reasons for dismissing the Whitlam government.

      • pp549 says:

        Alan,

        I have to admit I only recently realised quite how different law and convention is in Australia to (particularly) Canada. Cursory research has brought up some great stuff by the ex-GG Paul Hasluck. Do you know any other particularly good sources about the way the influence of the Governors and Governors-General have changed over the years in Australia?

        Thanks!

  2. You’ve just highlighted one of the my point of my thesis: British Prime Ministers treat the Queen with far more respect that Canadian and Australian Prime Ministers have treated their Governors General. As you say, this difference does in large part explain why Canadian and Australian PMs have occasionally mired themselves in controversial uses of prerogative powers.

    I’m finishing up my follow up column on the “post-prorogation” in Ontario. I’ll let you know when it has been posted, because you’d probably find my remedies (based on the political enforceability of constitutional conventions) of interest.

  3. Alan says:

    pp549

    I did reply but I’m not sure if the comment went through or not.

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