The Politics of Prorogation in Canada



Sample for Upcoming Issue of The Dorchester Review

The Trudeau II government has confirmed that it will proceed with pushing through changes to the Standing Orders of the House of Commons pertaining to prorogation, as Aaron Wherry has reported.

I first prepared this piece in March, when the government first announced its discussion paper on reforming the Standing Orders but before the opposition filibustered the Procedure and House Affairs Committee. In any event, I had always focussed on the proposed reforms surrounding prorogation and not on the reforms to Question Period.

Most of the following piece will appear in volume 7, issue 1 of The Dorchester Review in a few weeks, but I have updated the manuscript now that we can examine the text of the motion for how precisely it will ask the House to amend the Standing Orders. 

Introduction 

The federal Liberal Party pledged in their election platform from 2015 that they would never use prorogation for purely political purposes or tactical considerations if they formed government. Instead, they would instead use prorogation in a perfunctory way and end a session once Parliament had passed their legislative commitments that flowed from the Speech from the Throne. They added: “Harper has used prorogation to avoid difficult political circumstances. We will not.”[1]

After being sworn in on 4 November 2015 Prime Minister Trudeau instructed his House Leader through the mandate letter to “Change the House of Commons Standing Orders to end the improper use of omnibus bills and prorogation.”[2] On the afternoon of Friday, 10 March 2017 Bardish Chagger, the Government House Leader, released a paper entitled “Reforming the Standing Orders of the House of Commons: Modernization of the Standing Orders of the House of Commons,” which includes a proposal on “discouraging governments from abusing prorogation.”[3] Finally, on 21 March 2017 the Trudeau government moved, over the objections of the opposition, that the Standing Committee on Procedure and House Affairs study its proposed amendments to the Standing Orders and report back to the House by June.

While the House of Commons could undoubtedly amend its Standing Orders on matters like the structure of Question Period, electronic voting, or limiting the use of omnibus bills, the House of Commons alone does not possess the authority to regulate the exercise of the prime minister’s authority over prorogation.

How Prorogation Works in Practice

Prorogation ends a session of parliament and thereby clears all business from the Order Paper as if it never existed (apart, since 2003, from Private Members’ Bills) and terminates all committee business. The period between sessions of Parliament, the duration of the prorogation, is called the intersession. The executive authority over prorogation ultimately flows from the Constitution Act, 1867; section 9 vests the general  “executive authority in and over Canada” in the Queen, and section 38 vests in the Governor General the authority to summon, and therefore by necessity, to prorogue, Parliament.[4] The Prime Minister alone advises the Governor General to prorogue a session of Parliament, either through an instrument of advice or by telephone.[5] The prorogation is promulgated into force either by a set of two proclamations published in the Canada Gazette or by the Governor General’s speech in the Senate.[6] The first proclamation, or the speech in the Senate, prorogues the session of parliament, and the second proclamation summons the next session of parliament for “dispatch of business”, usually within 40 days, at a date named therein. The prime minister may, however, advise the Governor General to issue additional proclamations extending the intersession, normally in increments of 40 days.[7] In theory, the only hard limit to the duration of an intersession is section 5 of the Constitution Act, 1982, which states that parliament must meet at least once every 12 months, but the practical constraints of the budgetary cycle and government legislation flowing from the Speech from the Throne render this maximum intersession of 364 days a logistical impossibility. So, too, does the fact that since 1997, the Financial Administration Act  has limited the issuance of Special Warrants to when parliament is dissolved and only for up to 60 days.[8]

What the Standing Orders Currently Say on Prorogation

The Standing Orders currently contain a few provisions that describe how a prorogation affects the business of the House of Commons, but they do not attempt to regulate in any way how the Prime Minister exercises his authority over prorogation. For instance, Standing Order 49 states, “A prorogation of the House shall not have the effect of nullifying an Order of Address of the House for returns or papers …” Standing Order 55 pertains to how the Speaker of the House deals with preparing the Order Paper when Parliament is prorogued or dissolved and about to be summoned back. Finally, Standing Orders 81.6 and 86.2 declare that private members’ bills now survive prorogation intact, unlike government bills (and presumably also private bills), which die on the Order Paper. These provisions, which the House of Commons adopted in 2003, represent the most significant shift in practice on prorogation of recent years.[9] Interestingly, the Rules of the Senate do not mention prorogation at all, except in the glossary’s entry for “Royal Prerogative.”

Depending on precisely how the Trudeau government words its proposed amendments to the Standing Orders, such changes would either be ineffectual or unconstitutional as a means of regulating how the Prime Minister exercises his authority over prorogation is simply beyond the authority of the House of Commons.

What The Discussion Paper Says on Prorogation

The discussion paper did not delve into great detail on how it proposes to amend the Standing Orders to “discourage governments from abusing prorogation.” It defines what prorogation is, admonishes the Harper government by implication for having used prorogation tactically in 2008 and 2009, and then offers two potential solutions to remedy that supposed problem:

Prorogation signifies the end of a session within a Parliament. At the beginning of a session, the Governor General sets out the Government’s agenda for the session in the Speech from the Throne. When the Government has delivered on its commitments in the Speech, the Prime Minister recommends to the Governor General to end the session through prorogation.

There have been instances where Governments have prorogued early in the session to avoid politically difficult situations. The Government committed to Canadians to not abuse prorogation in such a manner. 

One option would be to require that the Government table a document early in the following session that sets out the reasons for proroguing Parliament. The report could be automatically referred to committee for study and could be the subject of debates on Supply Days. Another approach could be to reinstate the prorogation ceremony that would resemble the approach used in the Speech from the Throne but would occur at the end of the session.[10] 

The first paragraph presents something of an ideal type of prorogation and does not take into account even prorogation under circumstances that the Liberals do not admonish, such as, for instance, intra-parliamentary changes of government and transition of power from one ministry to another.

Chretien’s Tactical Prorogation of 2003

The second paragraph seems like an oblique allusion to Harper, but that category should also include Chretien’s tactical prorogation of 12 November 2003 which prevented Auditor General Shelia from tabling her report on the Sponsorship Program until after the intersession. By the time the 3rd session of the 38th Parliament convened on 2 February 2004 Paul Martin had become prime minister. It would defy all credibility to suggest that Prime Minister Chretien did not know that Auditor General Fraser’s report scheduled for November 2003 would reveal what became known as the Sponsorship Scandal. In his memoirs, Chretien insists:

Though I had neither seen Shelia Fraser’s report nor been briefed about it, I knew, like everyone else in Ottawa, that it was going to be tough. But I didn’t prorogue Parliament because I was afraid to face it or wanted to pass it like a kiss of death to my successor.[11]

Curiously, in the preceding paragraph, Chretien explained that he advised Governor General Clarkson to prorogue Parliament in November 2003 precisely because “there was nothing urgent on the agenda, nor was there any point in asking Liberal MPs and senators, most of whom were heavily involved in the leadership race, to stick around for routine matters such as the tabling of the auditor general’s latest report on the sponsorship program.”[12]  So which was it? Was Auditor General Fraser’s report going to be nothing more than a “routine matter” or was her report “going to be tough”? In these two passages, Chretien acknowledges that he made the decision to prorogue parliament, knowing full well that the Auditor General was poised to table her latest report on the Sponsorship Program to Parliament. He also transparently admits that his prorogation had more to do with the Liberal Party of Canada than with the Government of Canada.

As Paul Martin points out in his memoirs, Chretien’s explanation strains credibility to the breaking point. Chretien insists that his original plan involved staying on as Prime Minister months after he would cease to be leader of the Liberal Party, develop the language for a new Speech from the Throne, present himself as Prime Minister in early 2004 at the start of the 3rd session of the 38th Parliament, and then resign a few weeks later, after he had taken the fall for the very same Auditor General’s report whose publication he had delayed by making the decision to prorogue.[13] Martin corroborates Chretien’s account that Fraser’s “report was ready for release in November 2003.”[14] Irrespective of Chretien’s intent, his decision to prorogue necessarily delayed the tabling of the Auditor General’s report until after Martin had succeeded him as Prime Minister.[15] Contemporary reports in the Globe and Mail reported on the prorogation matter-of-factly through phrases like, “Mr. Chrétien announced Wednesday that he would prorogue Parliament and that he would not be in office after Jan. 12” and “Mr. Chrétien’s announcement that he will prorogue Parliament signals the end of his 10-year regime and is the beginning of the transition process from a Chrétien government to a Martin government.”[16] Nowhere did they take any notice of political motivation. Only after Harper’s prorogations of 2008 and 2009 did some journalists finally acknowledge the obvious tactical considerations in Chretien’s earlier prorogation.[17]

Reform Proposal 1: Oblige the Government to State the Rationale of the Prorogation

The third paragraph in the discussion paper concludes with two “options” to avert a decision to prorogue for tactical reasons. As to the first, the Standing Orders probably could compel the government to table a document at the beginning of a new session which outlines the rationale for the Prime Minister’s decision to have prorogued in the previous session. The Standing Committee on Procedure and House Affairs could study it. But to what end? The prorogation would already have happened, and it would remain the Prime Minister’s decision and responsibility. Such a procedure would provide no remedy and no recourse and would, frankly, be a waste of House time. Worse still, the discussion paper suggests that the committee’s report on the previous prorogation could then be debated on a Supply Day — in other words that an executive decision which ended the previous session should take up one of the 22 allotted days per calendar year when the Opposition controls the debate. An Opposition motion condemning the prime minister’s decision to prorogue the previous session could be construed as a motion of non-confidence. This policy could therefore have the reverse of the intended effect, making prorogation more political, not less.

On 19 June 2017, the government tabled its motion for amending the Standing Orders on prorogation and on omnibus and supply bills. The relevant portion reads as follows:

That the following section be added after Standing Order 32.(6):

“(7) Not later than twenty sitting days after the beginning of the second or subsequent session of a Parliament, a Minister of the Crown shall lay upon the Table a document outlining the reasons for the latest prorogation. This document shall be deemed referred to the Standing Committee on Procedure and House Affairs immediately after it is presented in the House.”[18]

The motion for Government Business No. 18, of course, makes no mention of prorogation by speech from the throne before parliament assembled because this proposal lies beyond the scope of the House Commons’s authority.

Reform Proposal 2: Reinstating Prorogation by Speech from the Throne

The second approach in the discussion paper is restoring the prorogation ceremony in Parliament assembled, where the Governor General or Deputy Governor General prorogues the session through a closing speech from the throne. This falls entirely outside of the authority of the Standing Orders of the House of Commons. These speeches are coordinated by the Privy Council Office and Government House and occur in the Senate chamber — but even the Rules of the Senate do not presume to regulate them. The discussion paper implies that the act of proroguing a session of Parliament through a closing speech from the throne would ensure greater accountability or scrutiny on the Prime Minister’s decision to prorogue by drawing attention to it. Perhaps it would. This is similar to an argument advanced recently by Lorne Sossin and Adam Dodek that the governors should provide the rationale for the first minister’s decision to prorogue or dissolve Parliament or a provincial legislature.[19] In reality, first ministers, not governors, make the decision to prorogue and therefore take responsibility for it, including any official, public rationale for their decision. The proposed closing speech from the throne could end up derogating from the Prime Minister’s responsibility for constitutional advice he tenders to the Governor General and thereby decreasing the accountability of the Prime Minister in the media and public discourse.

Finally, on a more mundane note, a closing speech from the throne used to serve not only as a means of promulgating the prorogation of a session into force, but also as a means of granting Royal Assent in Parliament assembled to all bills that the House of Commons and Senate had passed in the preceding session. The advent of the Royal Assent Act of 2002 and its new procedure of Royal Assent by Written Declaration has made a closing speech from the throne less necessary. The last prorogation by closing speech from the throne occurred in 1983.

In conclusion, restoring the closing speech from the throne as a means of promulgating prorogation is worthy of consideration — but it falls entirely outside the scope of the Standing Orders of the House of Commons, not least because the ceremony occurs in the Senate, in Parliament assembled, and has nothing to do with the House of Commons. The Standing Orders of the House of Commons cannot regulate the Prime Minister’s decision to prorogue, whether by proclamation or by speech from the throne. The Prime Minister would have to consult with the Governor General on reinstating the ceremony as the regular procedure, or on organizing such ceremonies ad hoc, and the Privy Council Office and Government House would then take the operative steps to coordinate and implement the  decision. But reinstituting prorogation by a closing speech from the throne on some occasions would not in any way prevent a Prime Minister from using prorogation as a political tactic, as Chretien did in 2003 or Harper did in 2008 and in 2009. In those instances, a Prime Minister would simply opt for prorogation by proclamation, and nothing could prevent him from doing so.

Feasible Approaches to Regulating the Exercise of Prorogation

 Devising a practical and constitutionally sound approach to regulating the exercise and effects of prorogation depends upon a firm understanding of the Constitution of Canada and how responsible government works.

At its core, Responsible Government is a trinity (three in one) of responsibilities: ministerial responsibility to the Crown, individual ministerial responsibility before the Commons, and collective ministerial responsibility & solidarity before the Commons.[20] The Government must command the confidence of both the Governor, who grants Ministers the authority to govern under the Crown, and of the legislative assembly, which must pass supply or else force either the Government’s resignation or dissolution and fresh elections. And in practice, Responsible Government means that “Minister of the Crown take responsibility for all acts of the Crown” and that the Governor General acts on and in accordance with ministerial advice, save for exceptional circumstances, which in turn ensures the partisan neutrality of the Crown that he represents.[21] The Governor General may reject or act contrary to ministerial advice only under exceptional circumstances precisely because of the exceptional consequence of his exercise of his discretionary authority: he forces the resignation of the Ministry and must appoint another that can subsequently take responsibility for those acts of the Crown. If a Governor General ever attempted to do the unprecedented and take the constitutionally dubious stance of rejecting a prime minister’s advice to prorogue, then the Prime Minister would have to resign or worse still, advise the Queen to dismiss the Governor General. Ultimately, the governor’s first constitutional duty is to ensure that there is a duly constituted government in office at all times, because the Queen’s business must go on.

Where the Constitution Acts mention the Governor General, the Prime Minister by convention tenders and takes responsibility for that advice; where they mention the Governor-in-Council, the Cabinet collectively tenders advice and takes responsibility for those acts of the Crown. Combining the written constitution with the conventions of Responsible Government, we derive the following formulation: the Governor General summons, prorogues, and dissolves the Legislature on and in accordance with the advice of the Prime Minister. The Constitution of Canada includes both the Constitution Acts and the constitutional conventions of Responsible Government. Parliament therefore cannot drive a wedge between the Governor General, who carries out advice in the Queen’s name, and the Prime Minister, who advises the Governor General and derives his commission of authority to govern from him, or otherwise attempt to draw a false distinction between the two, because under no circumstances could the Governor General act independent of ministerial advice on matters of state, and only under the aforementioned exceptional circumstances could the Governor General act contrary to ministerial advice.

If a statute purports to limit how the Prime Minister can exercise the discretion to advise and take responsibility for the summoning and prorogation of Parliament, then it also necessarily limits how the Governor General acts on and promulgates that advice. Such a statute would therefore limit and abridge the authority of the Crown over prorogation, which derives from sections 9 and 38 of the Constitution Act, 1867, and would be unconstitutional, because only an amendment under section 41(a) of the Constitution Act, 1982 can change anything “in relation to the office of the Governor General.”

The best approach would be to regulate the exercise of the executive authority over prorogation, but without substantially restricting it or attempting to abolish it. For instance, Parliament could pass a statute requiring that it must meet at least once every six months. Since this statutory requirement would exceed the minimum standard contained in section 5 of the Constitution Act, 1982 that Parliament must meet at least every 12 months, it would not even need to be presented as a constitutional amendment passed under Section 44 Amending Formula (though lengthening the maximum time that can elapse between sittings of parliament beyond 12 months certainly would). Parliament could also require that the first session of a new parliament after an election be summoned within a specific number of days.

Parliament could probably also limit the duration of prorogations, within a reasonable timeframe that does not deviate too far from existing practice, without running afoul of section 41(a). Currently, proclamations of prorogation can state that Parliament will reconvene for despatch of business at a pro forma date, which the Prime Minister can decide to extend by advising the Governor General to issue a subsequent proclamation that extends the intersession. Such a statute could attempt to limit the intersession to, say, an absolute maximum of 60 or 70 days.

In general, concrete reforms to regulate executive authorities like prorogation are more likely to be enacted in a minority parliament, over the government’s initial objections but as part of a grand bargain, than introduced as government legislation in a majority parliament. After all, governments are reticent to relinquish or limit their own authority, especially when it gives them a political or tactical advantage over the opposition. However, any statute or constitutional amendment designed to regulate the exercise of prorogation would require Royal Consent by Third Reading, since such legislation would directly affect an established executive prerogative authority; and, like Royal Recommendation, the Governor General grants Royal Consent only on and in accordance with the advice of the executive.[22] The most likely scenario for enacting such a statute would be where a minority parliament extracts this concession from a single-party minority government as part of a larger bargain, like support for a supply bill in order to stave off an early dissolution. In other words, the Liberals, New Democrats, and Bloc Quebecois squandered their best chance at enacting this reform from the Harper government at some time between January 2009 and March 2011.

Conclusion

While the House of Commons could undoubtedly adopt British-style, weekly Prime Minister’s Questions and restrict the usage of omnibus bills, the Standing Orders  are an effectual method of regulating the executive’s authority over prorogation because they can only stipulate how the House of Commons reacts to a prorogation that has already happened. The House of Commons alone cannot regulate the exercise of executive authority over prorogation itself. Under the current system, only the Prime Minister can.

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Endnotes

[1] Liberal Party of Canada, “Real Change: A New Plan for a Strong Middle Class,” October 2015, page 30.

[2] Canada, Privy Council Office, “Mandate Letters: Leader of the Government in the House of Commons,” 4 November 2015 [accessed 19 March 2017].

[3] Canada, “Government House Leader Releases a Discussion Paper on the Modernization of the House of Commons,” 10 March 2017 [accessed 19 March 2017]; Canada, Government House Leader, “Reforming the Standing Orders of the House of Commons,” 10 March 2017 [accessed 19 March 2017].

[4] Warren J. Newman, “Of Dissolution, Prorogation, and Constitutional Law, Principle and Convention: Maintaining Fundamental Distinctions During a Parliamentary Crisis,” National Journal of Constitutional Law 27 (2009): 219, 229.

[5] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 401-405; Canada, Privy Council Office, Instrument of Advice from Prime Minister Mulroney to Governor General Sauvé, 26 August 1986, page 63 of ATIP A-2015-00504.

[6] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 401-405.

[7] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 401-405.
[8] Peter Miliken’s Private Members’ Bill, An Act to Amend the Financial Administration Act, implemented this change in 1997. Prior to 1997, Special Warrants could be issued during an intersession.

[9] Audrey O’Brien and Marc Bosc, House of Commons Procedure and Practice, 2nd Edition (Ottawa: Parliament of Canada, 2009).

[10] Canada, Government House Leader, “Reforming the Standing Orders of the House of Commons,” 10 March 2017 [accessed 19 March 2017].

[11] Jean Chretien, My Years as Prime Minister (Toronto: Alfred A. Knopf Canada, 2007), 400.

[12] Ibid.
[13] Paul Martin, Hell or High Water: My Life In and Out of Politics (Toronto: McClelland and Stewart Ltd, 2008), 249-250.

[14] Ibid., 278.

[15] Ibid., 250.

[16] Globe and Mail, “It’s Official: Martin Takes Over,” 14 November 2003; Jane Taber and Drew Fagan, “Chretien Signals Early Departure,” Globe and Mail, 13 November 2003.

[17] Norman Spector, “Prorogation: Jean Chretien Did It, Too,” Globe and Mail, 9 January 2010.
[18] Canada, House of Commons, Order and Notice Paper, 42nd Parliament, 1st Session, Number 197, Monday, 19 June 2017, Government Order No. 18, at page 182.

[19] Adam Dodek and Lorne Sossin, “When Silence Isn’t Golden: Constitutional Conventions, Constitutional Culture, and the Governor General,” chapter 7 in Parliamentary Democracy in Crisis, editing by Peter H. Russell and Lorne Sossin, 91-104 (Toronto: University of Toronto Press, 2009), 98, 102.

[20] Robert Macgregor Dawson, “The Constitutional Question,” Dalhousie Review VI, no. 3 (October 1926): 332-337; Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 16-17.

[21] Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102; R. Macgregor Dawson, The Government of Canada. 5th ed. (1970), revised by Norman Ward (Toronto: University of Toronto Press, 1947): 175.

[22] In fact, the Privy Council Office shows that the Prime Minister alone requests that the Governor General grant a bill Royal Consent through an instrument of advice. Prime Minister Trudeau I issued an instrument of advice asking that the Governor General give Royal Consent to a bill pertaining to pensions to civil servants on 24 June 1980, because pensions were traditionally a prerogative authority of the Crown and bestowed upon favoured subjects. Canada, Privy Council Office, Instrument of Advice from Prime Minister Trudeau to Governor General Schreyer on Royal Consent to “An Act to amend the Financial Administration Act (garnishment and attachment),” 12 March 1979, page 34 of ATIP A-2015-00504.

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3 Responses to The Politics of Prorogation in Canada

  1. Roger Bowden says:

    Excellent article, just got to it this morning. I did note when you first referred to Sheila Fraser you had Auditor General Sheila vice full name or last name. Dad

  2. Pingback: Roundup: Demanding ATIP perfection may be the enemy of the good | Routine Proceedings

  3. PierreB says:

    Thank you for an easy-to-understand and informative article. If I’ve understood correctly though, shouldn’t the conclusion be that Standing Orders are ineffectual in regulating prorogation?

I invite reasonable questions and comments; all others will be prorogued or dissolved.

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