Something about prorogation seems to bring out a toxic mixture of anger and ignorance.
Brexit and Prorogation
The Fixed-Term Parliaments Act, 2011 put the prerogative over dissolution as well as the established constitutional position of the Queen and Prime Minister with respect to dissolution into abeyance. This resulting inflexibility in the British constitution has made a right mess of things and prevented a natural dissolution of a deadlocked Brexit Parliament elected in 2017. And now Britain’s radical reformers have set their sights on the prerogative authority over prorogation as well.
A few weeks ago, the prospect of prorogation started to stir up controversy in the United Kingdom, and Commons Speaker John Bercow suggested that he would stop the Prime Minister from proroguing the current session of the Westminster Parliament – the second longest in its history – even though he has no authority or capacity whatsoever to make good on that blithe threat. Theresa May’s resignation as leader of the Conservative and Unionist Party kicked off a leadership election for the party which will now come down to party members to choose between Boris Johnson and Jeremy Hunt, and frontrunner Boris John has refused to rule out proroguing this session while the European Union’s deadline in negotiations over Article 50 expires on 31 October 2019, which would result in what is known as a “No-Deal Brexit,” or the United Kingdom’s automatic withdrawal from the European Union under Article 50 of the Treaty of Lisbon and the European Union Withdrawal Act, 2018. Boris Johnson did not say that he would do a tactical prorogation to hasten a No-Deal Brexit; he simply refused to rule it out as a possibility, while his rival Jeremy Hunt rejected the notion.
As the deadline draws closer, some prominent British personages who always opposed Brexit and the results of the referendum of 2016 in the first place now want vandalize the British constitution by making a prime minister’s constitutional advice subject to judicial review. Chief amongst these is Sir John Major, former Conservative Prime Minister (1990-1997) and long a committed European federalist. In an interview with BBC Radio 4 on 10 July 2019, Sir John adopted the arguments put forward by sophists like Duff Conacher and others with respect to Prime Minister Harper’s early dissolution in 2008: that the law does not fetter the Governor General’s discretion but fetters the Prime Minister’s advice – even though the Governor General only acts on ministerial advice. Major said:
“In order to close down Parliament, the Prime Minister would have to go to Her Majesty the Queen and ask for her permission to prorogue. If her first minister asks for that permission, it is almost inconceivable that the Queen would do anything other than grant it. […] The Queen’s decision cannot be challenged in law, but the Prime Minister’s advice to the Queen can, I believe, can be challenged in law, and I for one would be prepared to go to seek judicial review to prevent parliament from being by-passed.”
On the one hand, British opponents of tactical prorogations have demonstrated more intelligence than their anti-Harper Canadian counterparts in 2008 and 2009, who argued that Governor General Michaelle Jean should have refused Prime Minister Harper’s constitutional advice to prorogue the 1st and 2nd sessions of the 40th Parliament, even though this would have necessitated Harper’s resignation. Even ten years later, some of my critics still can’t quite wrap their minds around that the fact that a Governor who refuses to promulgate a Prime Minister’s constitutional advice thereby withdraws confidence from him and dismisses him from office, despite the numerous unambiguous precedents in Canadian history clearly demonstrating this principle: George Brown resigned in 1858 when Governor Head refused to dissolve parliament, Sir Charles Tupper resigned in 1896 when Governor General Lord Aberdeen refused to summon Senators and appoint judges (though Tupper had offered that advice after Laurier led the Liberals to a parliamentary majority, so he really should have already resigned anyway), Mackenzie King resigned in 1926 after Governor General Lord Byng refused to dissolve parliament, and Christie Clark resigned as Premier of British Columbia in 2017 after Lieutenant-Governor Judith Guichon refused her advice to dissolve the legislature. Sir John Major and others have at least acknowledged and made peace with the fact that the Queen would have to accept Boris Johnson’s constitutional advice to prorogue parliament and promulgate the Order-in-Council into force, but Major has still emulated Stephen Harper’s critics with respect to Canada’s fixed-date election laws and dissolution here in Canada.
In reality, a prime minister’s constitutional advice to prorogue parliament is not justiciable, so neither Sir John Major nor anyone else has standing to challenge such prime ministerial constitutional advice in court. The Prorogation Act, 1867 merely regulates and clarifies the exercise of the Crown’s prerogative authority over prorogation and allows intersessions to be extended by proclamation. Parliament also expressly rejected an amendment to the Fixed-Term Parliaments Bill in 2010 that would have put the prerogative over prorogation into abeyance alongside that over dissolution. Furthermore, under Responsible Government, where the Queen does not act independently but only on ministerial advice on matters like prorogation, we cannot drive a wedge between the Queen and Prime Minister and accept this specious, self-contradictory assertion that what the Queen does is not justiciable but that the advice in accordance with which the Queen does that thing is justiciable. Finally, a Prime Minister Boris Johnson would have every right to advise the Queen to prorogue this session of parliament up to and including the precipitation of a No-Deal Brexit. It would be unusual by British standards, but virtually everything in British politics has been unusual since 2016.
For a more in-depth explanation of how prorogation works in the United Kingdom versus in Canada, please see my earlier entry: “No Prorogations: Long Parliamentary Sessions in Canada and the United Kingdom.”
Major also asserted earlier in that interview with BBC Radio 4’s Mishal Husain that “Nobody has [by-passed parliament] since Charles II in the 1640s, and it didn’t end well for him.” Major thus conflated both prorogation with dissolution and Charles II with Charles I in one fell swoop. In fact, it was his father, Charles I who dissolved three parliaments which questioned his authority, most famously the Short Parliament of 1640. As I had to explain to Peter Russell (much to his annoyance) at the Conference on the Crown in Regina in 2012, he, and now subsequently John Major, had gotten all backwards: the Tudor and Stuart Sovereigns dissolved pesky parliaments and actually prorogued favourable parliaments in order to keep them alive longer! For instance, Charles II prorogued the Cavalier Parliament 17 times in order to keep it alive for 18 years between 1661 and 1679. Etymologically, prorogation means prolongation. Henry VIII also kept the Reformation Parliament going for seven years by prolonging its life through prorogation from 1529 to 1536. If a hypothetical Prime Minister Boris Johnson prorogued this second longest session of parliament in English and British history this fall, the same parliament with the same members of the House of Commons would come back for the second session afterwards.
But perhaps Major is right in one sense. In this case, prorogation could prevent a gridlocked Parliament from dragging out a three-year-old issue for another few months or years and in a way perform a small-scale version of what the Crown’s prerogative over dissolution could once have achieved before the Fixed-Term Parliaments Act put it into abeyance and allowed dysfunctional hung parliaments to mire themselves in chaos for up to five years.
Sir John Major’s Tactical Prorogation of 1997
Sir John last month also referred to the prospect of proroguing this session to hasten a No-Deal Brexit as “hypocrisy on a gold-plated standard.”
Perhaps we should give him due credit; after all, Major can speak as an authority on the subject of hypocrisy and prorogation. Sir John Major in his last days as Prime Minister secured a prorogation of parliament on Friday, 21 March 1997 in order to prevent Sir Gordon Downey from tabling a damning report on the Cash-For-Questions Scandal that implicated two Conservative MPs in having accepted bribes in exchange for tabling parliamentary questions on behalf of Harrods’ owner Mohammed Al-Fayed. That parliament was then dissolved on 8 April, and the election occurred on 1 May 1997. Major’s prorogation prevented the tabling of a damning report into Tory Sleaze, but it did nothing to halt the Conservatives’ crushing defeat and New Labour’s landslide victory under Tony Blair – still, it’s the thought that counts. In short, Major has no moral authority whatsoever on the subject of prorogation and has merely exposed his own hypocrisy. But zealotry often flows from hypocrisy and deep-rooted personal insecurities.
On 17 March 1997, Prime Minister John Major went to the Palace and advised the Queen to call a general election. He told the press outside of Number 10 Downing Street:
“I’d like to formally confirm that I’ve seen Her Majesty the Queen this morning and sought her permission for a dissolution of parliament and general election on the 1st of May. I’m delighted to tell you that Her Majesty has consented to that. I would expect a prorogation of parliament within a few days and formal dissolution in early April. Parliament will reassemble on the 7th of May for the election of Speaker and the swearing in of members, and the Queen’s Speech will begin on the 14th of May.”
Interestingly, the British media coverage of 17 March 1997 also characterized that date as the start of a “six-week campaign”, even though the dissolution of that parliament did not happen until 8 April. John Sergeant, political reporter for BBC News, narrated: “After all the speculation, at last, the Prime Minister went to the Palace and set in train the longest election campaign for 70 years.” Unlike in Canada, where we no longer prorogue the session before dissolving parliament and where prime ministers can both prorogue and dissolve without warning, the British usually go through a different procedure as Major outlined above; the general timing of the prorogation, dissolution, general election, and summoning of the next parliament are known, and in the week prior to the prorogation, Parliament goes through the “wash up” (like how the British would describe cleaning dirty dishes) for a week so that it can pass perfunctory and necessary legislation and spare bills from dying on the Order Paper.
The Hansard and the video footage of Major’s last two Prime Minister’s Questions from 18 and 20 March 1997 reveal that both Labour and the Liberal-Democrats saw right through Major’s transparent ploy to use a tactical prorogation in order to prevent Sir Gordon Downey from tabling a damning report. (Canadian Prime Minister Jean Chretien similarly used prorogation in 2003 in order to delay the tabling of Auditor General Shelia Fraser’s report into what became the Sponsorship Scandal). Liberal-Democrat Simon Hughes so accused Major on 18 March:
Mr. Hughes: The Prime Minister yesterday made the uniquely personal decision not only to have a general election on 1 May and to dissolve Parliament on 8 April but that Parliament should be prorogued and sent away this Friday. [Interruption.] Is it not obvious that one of the reasons for that decision and for the unprecedented gap between prorogation and dissolution is that–[Interruption.]
Madam Speaker: Order. This is so time-consuming. Come on, Mr. Hughes: spit it out.
Mr. Hughes rose–[Interruption.]
Madam Speaker: Order. There is no point in waiting for silence: the hon. Gentleman will not get silence. Produce your voice, Mr. Hughes.
Mr. Hughes: One of the reasons for that decision is that the Prime Minister knows that the report of the Parliamentary Commissioner for Standards on cash for questions will be ready on Monday or Tuesday. That report will therefore not be seen by hon. Members in this Parliament and will be hidden until after the general election.
The Prime Minister: One of the reasons for making the announcement on Monday and arranging for Parliament to be prorogued on Friday was to give the hon. Gentleman time to finish his question. As for Sir Gordon’s report, I have no knowledge when it will be presented.
Ironically, this video footage of Prime Minister’s Questions from 18 March 1997 comes from the excellent and thorough archive of C-SPAN and not from the British House of Commons audiovisual library. Speaker Betty Boothroyd – truly a force of nature and a British national treasure – over-shadows both Simon Hughes and John Major.
And again on 20 March, Labour MP Chris Mullin called out Major with the same accusation in the final Prime Minister’s Questions before the 1997 general election:
Mr. Mullin: Will the Prime Minister confirm that he could, if he wished, without any impact on the date of the general election, extend the life of this Parliament by the few days necessary to allow Sir Gordon Downey to publish his report? If so, I suggest that as soon as he leaves here, he nips down to the palace, has a quiet word with Her Majesty and puts an end to this distasteful business once and for all.
The Prime Minister: There has already been a Privy Council to determine Prorogation, and I have no intention of changing it. Prorogation always follows within days of an election announcement. When I announced the date of the election and Prorogation, the House was not surprised–[Laughter.] There was no surprise about the date of Prorogation, and when I announced it there was no representation then or at any time in the past, publicly or privately, from the Labour party about changing the date–not once. It was not until the unemployment figures were leaked that this became an issue.
Finally, Tony Blair, Leader of Her Majesty’s Most Loyal Opposition and the Labour Party, levelled the same charge against Major and accused him of covering up Tory sleaze:
Mr. Blair: May I remind the Prime Minister of his firm and unequivocal promise, made last October, to do all that he could to have the report of the Select Committee on Standards and Privileges published? May I suggest to him two ways in which that could be done? The first is to seek a postponement of Prorogation. The second is to agree with the Labour party and other Opposition parties a one paragraph Bill to allow the Committee to sit from now until Dissolution, on 8 April. Will he co-operate and allow us to do that–to fulfil his clear and unequivocal promise to the people of this country?
The Prime Minister: As ever, the right hon. Gentleman quotes partially, but I shall deal with the substance of what he said. Of course I would have preferred to have had the matter finished. [Hon. Members: “Oh.”] I said that months ago. I would have liked to have had all the inquiries finished. I would have liked to have had the inquiries into the funding of the Leader of the Opposition’s office and the deputy leader’s office finished.
Sir Gordon Downey’s report is not finished, and it has not yet gone to the Committee. When it gets to the Committee–as the right hon. Gentleman knows–that will be the start, not the conclusion, of the process. It is obviously a complex report–[Interruption.] It has been made clear that there are thousands of pages of evidence; it is obviously complex, and it will obviously take time to consider. Those hon. Members who may be criticised will obviously wish to make representations and give evidence. The thought that that could be done fairly and properly in a few days is improbable in the extreme. The right hon. Gentleman knows that. He also knows that, based on what has happened on earlier occasions, parts of the substance of the report might leak in a prejudicial way before the matter is fairly concluded. That would not be in the interests of the House or of natural justice. I have no intention of changing the Prorogation date of the House.
Mr. Blair: The Prime Minister says that I quoted partially his comments of last October. Last October, in the “Breakfast with Frost” programme, he said:
“Well I’ll tell you now, I will tell that committee I believe they should publish the report . . . I want it settled, I want it settled David.” After Frost asked him whether he hoped it was “reported and published before the next election”, he said, “Absolutely.”
Mr. David Shaw: £2 million blind funds.
Mr. Blair: If the objection is based on time, may I suggest to the Prime Minister that he let the Committee sit? If it cannot finish its report for genuine time reasons, so be it. What is surely outrageous is for the Committee—
Mr. Shaw: £2 million blind funds.
Madam Speaker: Order. I call Mr. Shaw to order.
Mr. Blair: The Committee is able to sit, and the Commissioner’s report will be ready on Monday. The hon. Members concerned want the report to be published. It is absolutely outrageous not to let the Committee have the time even to try. If the Prime Minister continues to stonewall, people will believe that the reason is not technicalities or can’t, but won’t.
The Prime Minister: The right hon. Gentleman is still quoting what I said selectively. I made it clear that although I wanted the report to be published speedily, and I did, it was a matter for Gordon Downey and he would have to take the time he needed to deal with the matter properly. Perhaps his task would have been easier if some people had not delayed handing over important evidence–but that was not the Government. The fact of the matter is that this needs to be dealt with impartially, not in an atmosphere in which it could be selectively leaked to damage people who may have nothing whatsoever to hide.
The right hon. Gentleman had no interest in this on Monday; he had no interest in this on Tuesday; he had an interest only when he had the unemployment figures leaked to him–to try to hide what is actually happening. This is a matter that needs dealing with fairly in the interests of the Members concerned, not in the way the right hon. Gentleman wishes to deal with it. What he wishes is to let a smear stand, not let justice be done in its own time.
Mr. Blair: Justice demands that this report be published. That is what justice demands. Any members of the public watching that interchange will conclude that the Prime Minister simply does not want it published because he fears its publication. Has not this Parliament ended as it began–[Interruption.] It has ended as it began, with the Government breaking their word. If the Prime Minister fails to have this report published, when everyone knows that he could, it will leave a stain on the character of his Government that will be erased only by a new Government with a fresh mandate, who will restore confidence in our public life for good.
The Prime Minister: The stain, if stain there will be, is upon a Labour Front Bench that has smeared and smeared and smeared again. The Labour leader has traded in double standards from the moment he took up office. This is the Labour leader who sells policy to the trade unions for cash–[Hon. Members: “Hear, hear.”]; who refuses to comply with the code of practice on party funding–[Hon. Members: “Hear, hear.”]; who calls for party openness but will not publish the secret funds of his own office–[Hon. Members: “Hear, hear.”]; who attacks share options but takes money from millionaires for his own party–[Hon. Members: “Hear, hear.”]; who attacks business men and asks them to fund things for him, who flew Concorde and failed to declare it–[Hon. Members: “Hear, hear.”]; who has a deputy leader who spends a weekend at a five-star hotel and does not declare it–[Hon. Members: “Hear, hear.”]; and who flies to the other side of the world to do newspaper deals and never admits to them–[Hon. Members: “Hear, hear.”] If there are any double standards, they sit there–on the Opposition Benches.
The British House of Commons has published the official version of Major’s last PMQs from 20 March 1997 on its YouTube channel.
In the same interview with BBC Radio 4 presenter Mishal Husain from 10 July 2019, Major petulantly denied that he used prorogation for tactical gain in 1997; worse still, he couldn’t even bring himself to acknowledge that his decision to prorogue under those circumstances, at minimum, generated a perception of tactical sneakiness, and he performed a mendacious bait-and-switch between what Simon Hughes rightly identified at the time as “the unprecedented gap between prorogation and dissolution” on the one hand versus the maximum lifespan of the parliament and dissolution on the other.
Husain: In 1997 before that general election, you were accused by Labour of effectively setting the date of that election to suit yourself because there was a forthcoming report about Cash-for-Questions. That was the accusation, that you were bringing the general election forward and having that report published after the election in order to prevent the embarrassment.
Major: I didn’t bring the election forward. We carried the election almost to the very last date, and Labour criticized us for doing that.
Husain: It was 19 days earlier than it could have been.
Major. Nineteen days – right at the end at the date that we could have had. The Labour charge was one of many absurd charges that they made in order to undermine the position as part of their general election campaign.
Careful and insightful readers will have already spotted the problem with the interviewer’s question and how she gave Major leeway to perform a rhetorical trick. And, unfortunately, Mishal Husain didn’t quite ask the right question; unusually for her, she even fumbled and stammered through that short interrogative as if someone had told her to ask John Major about his prorogation in 1997 at the very last minute before they went to air. Husain mixed up prorogation and dissolution, which allowed Major to bluff his way through that exchange. The Hansard shows that Labour and the Liberal-Democrats had accused Major at the time not of manipulating the date of the dissolution of that parliament and the ensuing date of the general election, but rather of having deliberately prorogued the session in order to prevent Sir Gordon Downey from tabling a damning report and then of letting that prorogation last at least one week longer than usual before the dissolution. But Husain focussed on the question of the life of the parliament that lasted from 1992 to 1997 and came within only 19 days of dissolving automatically by efflux of time. Strictly speaking, as this BBC News segment from 6 December 1996 shows, Major told the truth that Labour wanted the general election to happen earlier – but that observation remains misleading in this context because it was the prorogation, not the dissolution, which posed the real problem.
Ironically, rather like Joe Clark here in Canada, who remains unable to admit his failings all these years later but instead blusters his way through interviews, Sir John Major would hold far more personal credibility and authority if he simply acknowledged that he deployed prorogation tactically twenty-two years ago but that it did not end up helping him at all given that Tony Blair led New Labour to a massive landslide victory on 1 May 1997. Constitutionally, there is nothing wrong with tactical prorogations. But Major could have taken the opportunity to caution Boris Johnson’s hypothetical by pointing out some differences and between using a prorogation of a short intersession immediately before a dissolution tactically versus employing a longer prorogational intersession without a corresponding dissolution, or something to that effect. Instead, Major petulantly interrupted Husain throughout that segment and conflated two distinct issues.
If I were interviewing him, I would tell Sir John Major today what Prime Minister John Major told Labour leader Tony Blair in 1996: “The honourable gentleman shouldn’t be so sensitive about his difficulties. I just want to be tough on hypocrisy and tough on the causes of hypocrisy.”
- No Prorogation: The Long Parliamentary Sessions in Canada and the United Kingdom
- Prorogation as Prime Ministerial Delay Tactic, Not “Abuse of Power”
- The Politics of Prorogation in Canada
- Justin Trudeau Will Make Prorogation Great Again
- Harper’s Fourth Prorogation Looks Much Like His First
 Richard Kelly, “Dissolution of Parliament,” Briefing Paper 05085 (London: House of Commons Library, 27 April 2017), 9.
 John Sergeant, “UK General Election 1997 – John Major Ends the Phoney War – Election Date Announced,” BBC News, originally broadcast on 17 March 1997, uploaded on 30 October 2009.