No Prorogation: The Long Parliamentary Sessions in Canada and the United Kingdom


Introduction

Edited on 10 June to reflect the correct maximum life of the 1st session of the 42nd Parliament of Canada upon dissolution in September 2019, as opposed to June 2019.

The 42nd Parliament of Canada and the 57th Parliament of the United Kingdom have something in common: both of these current parliaments (as of 9 June 2019) are still on their first sessions. In Canada, no one but me and perhaps 20 other pedantic nerds toiling in obscurity have even noticed that the 1st session of the 42nd Parliament started on 3 December 2015 and will end upon dissolution between 1-15 September 2019. The Canada Elections Act now specifies that the writ must last between the minimum 36 days and a maximum of 50 days and schedules the day of the election as 21 October 2019. For the first time in the history of Dominion and Province of Canada (1841-present), a majority parliament will have lived out its entire life on one session alone. When this 1st session of the 42nd Parliament ends in September 2019, it will have lived for somewhere between 1,369 and 1,383 days. The 1st session of the 42nd Parliament will thus eventually surpass the record currently held by the 1st session of the 32nd Parliament, which lasted 1,325 days from 14 April 1980 to 30 November 1983. (The 32nd Parliament had a 2nd session from December 1983 to July 1984).

But the British do notice these things. The 1st session of the 57th Parliament since 1801 has, as of 4 June 2019, likewise become the second longest single parliamentary session in British and English history. None will ever surpass the 1st session of the Long Parliament, which existed from 3 November 1640 to 20 April 1653, because British Parliaments dissolve automatically by efflux of time after five years. But the Long Parliament Act of 1640 stipulated that this particular Parliament could only be prorogued or dissolved by a statute law passed for either purpose.

In other words, proroguing Parliament causes controversy in Canada, while not proroguing Parliament causes controversy in the United Kingdom.

How Prorogation Works in Canada 

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.[1] The Prime Minister alone advises the Governor General to prorogue a session of Parliament, either through an instrument of advice or by telephone.[2] 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.[3] 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.[4] 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.[5]

Interestingly, the last time that a Governor General’s Speech from the Throne, instead of a proclamation, promulgated prorogation occurred in closing the 1st session of the 32nd Parliament – the Patriation Session and what will soon become the second longest parliamentary session in Canadian history. Prime Minister Trudeau II has expressed an interest in reviving the old practice last used by Prime Minister Trudeau I.

In 2015, the Liberal Party of Canada’s platform said, “Harper has used prorogation to avoid difficult political circumstances. We will not.”[6] Justin Trudeau has succeeded in differentiating himself from Stephen Harper and has attempted to keep his promise “not to abuse prorogation”[7] and to solve the prorogation problem that Harper created simply by not proroguing at all. But perhaps since no other Prime Minister in Canadian history has ever abstained from proroguing parliament entirely, not proroguing at all constitutes an abuse in its own way. Believe it or not, that is how the British would say it. 

How Prorogation Works in the United Kingdom

Prorogation serves the same purpose and generally entails the same consequences in the Westminster Parliament (apart from what happens to private members’ bills), but the British have made more of a ritual of summoning new sessions of parliament each year in the State Opening of Parliament, where the Queen reads the Speech from the Throne. This tradition of annual state openings, of course, relies on annual prorogations as well. Also unlike in Canada, the British still prorogue a session of parliament immediately before dissolving the parliament itself, provided that the House of Commons has not already adjourned prior to dissolution. In Canada, we simply dissolve the parliament because proroguing the last session of parliament first is redundant.

The venerable Erskine May explains some of the differences in practice.[8] In the United Kingdom, prorogation for many decades took place annually with “sessions running from October or November of one year to October or November of the next.”[9] However, the Fixed-Term Parliament Act has since shifted that schedule to the spring, with prorogation in late April and the State Opening in early May.[10] As in Canada, prorogation can be promulgated either by proclamation or by a Speech from the Throne in the House of Lords; but unlike in Canada, the latter method of prorogation by speech remains the default and norm in the United Kingdom. The Sovereign has not read the Prorogation Speech in the House of Lords personally since 1854; instead, one of the members of the House of Lords acting under a Royal Commissioned issued under the Great Seal reads the speech.[11] Prorogation by proclamation usually happens in the United Kingdom in order to extend the duration of the intersession in increments of 14 days after the prorogation has already happened. In Canada, this procedure prolonging the intersession and issuing new proclamations for the Despatch of Business occurs purely under sections 9 and 38 of the Constitution Act, 1867, but in the United Kingdom, the Prorogation Act, 1867 regulates (but does not put into abeyance) the exercise of the British Crown’s prerogative authority.[12]

Prorogation by Speech in the House of Lords is promulgated into force, and the session of parliament is prorogued, as soon as the Lord under commission finishes reading the speech.[13] By custom, the Speaker of the House of Commons usually reads a message from the House of Lords in the chamber simply acknowledging and informing members of the House of Commons that the prorogation has happened – but in no way does the Speaker’s statement promulgate or prevent prorogation. He merely acknowledges something which has already happened.

The Spectator recently quoted Speaker John Bercow as making utterances which suggest otherwise.

One of the most powerful figures in the Tory leadership contest isn’t technically a Tory MP. John Bercow hails from the Conservative party, but as Speaker he has no allegiance and is often accused of being more amenable to Labour. But today he reminded us that he’s still important factor in the debates about who will do the best job of delivering Brexit. After Dominic Raab suggested he could end the parliamentary session – known as proroguing – to force through a no-deal Brexit, Bercow made clear that this was ‘simply not going to happen.’[14]

To my British readers, in particular, let me make this as plain as I can: the Speaker of the House of Commons has no authority whatsoever with respect to prorogation. He can neither cause nor prevent prorogation (which affects both Houses simultaneously) because the authority to prorogue parliament rests with the Crown, which means that the Queen prorogues a session of parliament on the advice of ministers. In Canada, the Prime Minister unilaterally tenders the Governor General advice to prorogue parliament through an Instrument of Advice, but the British Cabinet Manual indicates that advice to prorogue takes the form of an Order-in-Council issued under prerogative authority, which would mean that Cabinet collectively plays some role in offering the advice to prorogue parliament in the United Kingdom:

1.16 An Order in Council made under the Royal Prerogative is regarded as a form of primary legislation. Examples of this are Orders for the Prorogation of Parliament, approving or rejecting petitions or legislation of the Crown Dependencies and Orders dealing with certain matters concerning the Overseas Territories.[15]

1.18 Her Majesty in Council also gives approval to statutory Proclamations for new coinage and for certain bank holidays. Prerogative Proclamations for proroguing Parliament and setting the date of the meeting of a new Parliament are approved in Council, as are Proclamations under the Fixed-term Parliaments Act 2011 setting the date for an election which has been varied in accordance with the terms of that Act.[16]

In fact, someone should remind John Bercow that Parliament deliberately preserved the Crown’s prerogative authority over prorogation in the Fixed-Term Parliaments Act, despite putting the equivalent executive authority over dissolution into abeyance through the same statute. But some MPs disagreed during the debates on the Fixed-Term Parliaments Bill in 2010 and early 2011. Labour MP Chris Bryant, then the Shadow Minister for Political and Constitutional Reform, proposed an amendment to the Fixed-Term Parliaments Bill that would have put the Crown’s authority over prorogation into abeyance along with the Crown’s authority over dissolution and substituted a new codified procedure whereby the Speaker would declare parliament prorogued based on a “resolution” of the House of Commons.[17] Bryant agreed with the Political and Constitutional Reform Committee and suggested that under the procedures for constructive non-confidence and confirmation voting, the Government could seek prorogation in order to prevent an alternative government from being formed, and thus force an early dissolution.[18] Bryant even cited Prime Minister Harper’s tactical prorogations in 2008 and 2009 as evidence that a British Prime Minister might do the same!

Examples of How Prorogation Works in the United Kingdom

I can illustrate what Erskine May and the Cabinet Manual explain by way of the most recent concrete examples.

Outgoing Prime Minister Theresa May sought and received her foolish and futile early dissolution of the 56th Parliament under the Fixed-Term Parliaments Act in 2017. The Hansard of the House of Lords on 27 April 2017 concludes with “Prorogation: Her Majesty’s Speech.” The last paragraph in Hansard reads:

“My Lords and Members of the House of Commons, by virtue of Her Majesty’s Commission which has now been read, we do, in Her Majesty’s name, and in obedience to Her Majesty’s Commands, prorogue this Parliament to the 2nd day of May, to be then here holden, and this Parliament is accordingly prorogued to Tuesday, the 2nd day of May.

Parliament was prorogued at 5.42 pm.”

Similarly, the last line in the Commons Hansard simply shows that Speaker Bercow re-read the last paragraph of Lord of the Privy Seal’s speech:

The Commission was also for proroguing this present Parliament, and the Leader of the House of Lords said:

“My Lords and Members of the House of Commons:

By virtue of Her Majesty’s Commission which has now been read, we do, in Her Majesty’s name, and in obedience to Her Majesty’s Commands, prorogue this Parliament to Tuesday the second day of this May to be then here holden, and this Parliament is accordingly prorogued to Tuesday the second day of May.”

End of the Second Session (opened on 18 May 2015) of the Fifty-Sixth Parliament of the United Kingdom of Great Britain and Northern Ireland in the Sixty-Sixth Year of the Reign of Her Majesty Queen Elizabeth the Second.

Conclusion 

Prorogation has become both less common and more controversial in Canada. Until 1979, Prime Ministers prorogued Parliament on average once annually. But the 33rd Parliament and its 1st Long Session marked a turning point which has lasted to this day for majority parliaments, with most now hosting sessions lasting an average of two years, punctuated only by Harper’s tactical and controversial prorogations in the minority 40th Parliament in 2008 and 2009. Her Excellency Julie Payette has served as Governor General since 2017 but has not yet read a Speech from the Throne.

In contrast, long sessions do not bode well for the British. Where Canadians either care not or would support longer sessions and fewer or no prorogations, long sessions reflect and represent troubled times and political chaos in the United Kingdom. Until recently, they conjured up historical memories of the Long Parliament and the English Civil Wars of the 1640s, the Regicide of Charles I, and the Cromwellian Protectorate. In this decade, long sessions have come to represent Brexit and the upheaval with the fallout from the referendum in 2016, Theresa May’s early (and foolish) election gambit in 2017, and the hung parliament which followed.

Prime Minister Harper’s tactical prorogations of the 40th Parliament in 2008 and again in 2009 changed my life. They set me off on this scholarly journey on which I travel still. It is not an exaggeration to say that without Harper’s controversy prorogations, I would not have become the man I am today. Parliamentum would not exist. Nick MacDonald and I would never have been able to write “No Discretion: On Prorogation and the Governor General.” And I certainly would not have stumbled upon the opportunity to relish the delicious irony of a Colonial like me explaining (Colonialsplaining) all the sundry details of prorogation to the British in the Mother Country who invented it! 

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Notes

[1] 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.

[2] 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.

[3] 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.

[4] 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.

            [5] 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.

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

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

[8] Sir Donald Limon and W.R. McKay, editors, Erskine May’s Treatise on the Law, Privileges, Proceedings, and Usage of Parliament, 22nd Edition (London: Buttersworth, 1997),

[9] Sir Donald Limon and W.R. McKay, editors, Erskine May’s Treatise on the Law, Privileges, Proceedings, and Usage of Parliament, 22nd Edition (London: Buttersworth, 1997), 231.

[10] Edward Hicks, “Is This the Longest Parliamentary Session Ever?” House of Commons Library Podcast, 10 May 2019.

[11] Sir Charles Gordon, editor, Erskine May’s Treatise on the Law, Privileges, Proceedings, and Usage of Parliament, 20th Edition (London: Buttersworth, 1983), 288.

[12] Sir Charles Gordon, editor, Erskine May’s Treatise on the Law, Privileges, Proceedings, and Usage of Parliament, 20th Edition (London: Buttersworth, 1983), 60-61.

[13] Sir Donald Limon and W.R. McKay, editors, Erskine May’s Treatise on the Law, Privileges, Proceedings, and Usage of Parliament, 22nd Edition (London: Buttersworth, 1997), 234.

[14] Isabel Hardman, “The Spectator Evening Blend,” 6 June 2019.

[15] United Kingdom. Cabinet Office, The Cabinet Manual: A Guide to Laws, Conventions and the Rules on the Operations of Government. 1st Ed. (London: Crown Copyright, October 2011): page 7 at para 1.1, Page 9 at paragraph 1.16.

[16] United Kingdom. Cabinet Office, The Cabinet Manual: A Guide to Laws, Conventions and the Rules on the Operations of Government. 1st Ed. (London: Crown Copyright, October 2011): Page 9 at para 1.18.

[17] Chris Bryant [“Fixed-Term Parliaments Bill”] in United Kingdom, House of Commons, Parliamentary Debates (Hansard), volume 521, no. 100, 18 January 2011 (London: House of Commons, 2011), 733.

[18] Ibid., 736. Chris Bryant also cited Prime Minister Harper’s use of prorogation in 2008 and 2009 as examples.

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4 Responses to No Prorogation: The Long Parliamentary Sessions in Canada and the United Kingdom

  1. Session isn’t over yet says:

    Well, the 1st Session of the 42nd Parliament will not end on June 21. That is when the House of Commons is expected to adjourn for the summer. Barring a summer recall, it would indeed be the last day the House sits before the election, but that does not end either the session or the Parliament. Barring an earlier prorogation, it will not end until dissolution, so this session will almost certainly surpass the 1st Session of the 32nd Parliament.

    Like

  2. Robert Ede says:

    Very detailed and a nice comparison of the UK system and our “similar in principle” but totally unique Cdn system (for one, it’s written down, for another we have a GG w Letters Patent that refine and RE-define its delegated Vice Regal Powers.)

    Like

  3. Peter Hurley says:

    Does the Speaker have an institutional role in advocating the prerogatives and privileges of Parliament as against the executive power of the Crown? That is, can we see Speaker Bercow’s comments more as an advocacy role in terms of a defense of his House against a tactical prorogation, instead of as forecasting some exercise of power to prevent the prorogation.

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