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.
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.
6. This Act comes into force on the day it is passed.
7. The short title of this act is the Meeting of Parliament Act, 2012
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…