Introduction

On 15 August 2021, Prime Minister Boris Johnson requested that the Speaker recall the House of Commons from its summer recess early so that MPs could hold an emergency debate over the fallout of the American withdrawal from Afghanistan, which the Taliban took as an opportunity to recapture Kabul and to install themselves as the de facto government once more.[1] The House of Commons would originally have reconvened on 6 September under its regular sitting calendar but met instead on 18 August.[2] The Lords Speaker also recalled the House of Lords for the same day. The British House of Commons and House of Lords could meet to discuss the British response and efforts to evacuate their diplomatic personnel and refugees because the two houses had merely adjourned for their regular summer recess. The British House of Commons has cut short its adjournments in such a manner on 34 occasions since 1948.[3]

In Canada on 15 August 2021, Governor General Mary Simon dissolved the 43^rd Parliament of Canada and issued the writs of election on Prime Minister Trudeau’s advice. Perhaps drawing inspiration from across the Atlantic, Annamie Paul, leader of the Green Paper, argued on Monday, 16 August that the Parliament of Canada should be recalled so that MPs can hold an emergency debate on the aftermath of the American withdrawal from Afghanistan. The Green Party’s statement reads:

OTTAWA – The Green Party is calling on the Prime Minister to ask the Governor General to reconvene Parliament to debate Canada’s response to the foreign policy emergency unfolding in Afghanistan, and to ensure that Canada remains accountable for the safety of the Afghan nationals who assisted our mission and who are now desperate to flee the country. 

“As of yesterday, the Taliban had captured all major cities in Afghanistan, including the capital Kabul.” said Ms. Paul. “The Taliban’s advance has been swift and merciless; we are witnessing the complete recapture of Afghanistan by the Taliban. […]

“Parliament has been dissolved and therefore cannot debate this emergency situation and determine how Canada can do its utmost to protect Afghan civilians and ensure global security in honour of the sacrifice of our military who served in Afghanistan. This is yet one more agonising item to add to the list of reasons that this national election should not have been called at this time.”[4]

The first sentence of the last paragraph of the Green Party’s statement sums it up: “Parliament has been dissolved and therefore cannot debate this emergency”. In Canada, a dissolved parliament cannot be recalled. But in other jurisdictions, death is not the end.

The Nature and Effects of a Dissolution of Parliament

This controversy raises the question of the effects of a dissolution of parliament. Blackstone described dissolution as “the civil death of a parliament,” and all the evidence and precedents from the United Kingdom and Canada suggest that dissolution of parliament must by definition at Common Law be final and that a parliament once dissolved cannot be recalled back to life.[5] A dissolved parliament or legislature has never been recalled in Canada because no such authority exists, and my trawling through Alpheus Todd and John George Bourinot and Eskine May yields no precedent in English or British history where the Crown has recalled a dissolved parliament either.  

The 2^nd edition of House of Commons Procedure and Practice echos Blackstone’s formulation from the 1750s.

“Dissolution terminates a Parliament, ending all business in the Senate and in the House of Commons, and is followed by a general election.”[6]

“All items on the Order Paper including government and private Members’ bills die. The government’s obligation to provide answers to written questions, to respond to petitions or to produce papers requested by the House also ends with dissolution. The government must wait until the new Parliament is in session before tabling any document that is required pursuant to an act, resolution, or Standing Order.

Committees cease to exist until the House reconstitutes them following the election. All orders of reference expire, and the Chairs and Vice-Chairs of all committees cease to hold office. The government is no longer required to provide responses to committee reports.”[7]

Furthermore, members of the House of Commons cease to be MPs.[8] After all, there cannot be any members of parliament for a parliament which no longer exists. In contrast, cabinet ministers remain cabinet ministers by virtue of their being Privy Councillors.

The Scottish Precedent in 2021

Normally under the Scotland Act, a Scottish parliament would dissolve automatically after five years (previous four years) 31 days before the first Thursday in May, the election day itself.[9] But theScottish General Election (Coronavirus) Act, 2021 carved out an extraordinary exemption for the general election scheduled for 6 May 2021. The election started on 25 March, but the 5^th Scottish Parliament was not dissolved until 5 May, one day before the election on 6 May.[10] The Scottish Parliament passed this legislation in January 2021 as a precaution in case that parliament needed to reconvene for an emergency during the election campaign. The statute would also have allowed Scotland to delay its election for up to six months. Ironically, the legislation did become useful, but not because of the pandemic. Instead, the Presiding Officer (what they call their Speaker) recalled the Scottish Parliament for 12 April to give MSPs the opportunity to commemorate the death of His Royal Highness Prince Philip, the Duke of Edinburgh.[11]

Ultimately, even the new approach contained in the Scottish General Election (Coronavirus) Act, 2021 presumes that dissolution means the civil death of a parliament: this statute did not re-define what a dissolution of parliament does or entails but simply changed when the dissolution of parliament happens. The legislation decoupled the issuing of writs of election from the dissolution of parliament and instead declared that the Scottish Parliament would still exist during the writ and be dissolved only the day before the election itself. However, it applied ad hoc only to the general election of 2021 and did not change the normal procedure for the dissolution of parliament and the issuance of writs, and the next election scheduled for 2026 – hopefully long after the pandemic ends – will occur normally. Under section 13 of the Scotland Act, 1998, the tenure of a Member of the Scottish Parliament (MSP) “begins on the day on which the member is declared to be returned and ends with the dissolution of the Parliament,”[12] which supports the principle that MPs cease to be MPs upon the dissolution of parliament.

Recalling Ex-Parliaments in Sri Lanka

The former British possessions East of Suez have pioneered new constitutional features unknown both to the United Kingdom, as well as to Canada, Australia, and New Zealand, which began as settler colonies and have practised self-government since the mid-19th century. Asanga Welikala, Lecturer in Public Law at the School of Law, University of Edinburgh, and the Acting Director of the Edinburgh Centre for Constitutional Law, regards India, Sri Lanka, and Malaysia as “Eastminster” systems which have taken parliamentarism in a different direction relative to the Commonwealth Realms.[13]

Welikala also devoted an essay to this subject of recalling a dissolved parliament in May 2020. The Constitution of Sri Lanka offers one such example on the dissolution of parliament. Welikala argues that in Sri Lanka, dissolution marks not the civil death of a parliament but perhaps something more akin to an induced coma of a parliament. He writes: 

Dissolution has the effect of tranquilising an existing Parliament until such time as a new Parliament is brought to life through an election. Presumably, the old Parliament only dies when the results of the election are declared, or when the new Parliament formally meets for the first time. Whatever the literary merits of the metaphor, this is the obviously correct way to view the constitutional framework. As the table below shows, not only does the current Constitution expressly contemplate the recall of a dissolved Parliament in an emergency, but it is also a principle that has been recognised in all three constitutions we have had since independence. The recognition of the principle is reinforced by the fact that all three constitutions have also laid down a similar, and relatively detailed, procedure for the recall of a dissolved Parliament in an emergency. Moreover, the principle is one that is widely recognised in Commonwealth constitutions that are comparable to Sri Lanka.[14]

Welikala then cites Article 70 of Sir Lanka’s Constitution of 1978, which expressly allows the President to recall a parliament already dissolved “for a flexible but limited period.”

If at any time after the dissolution of Parliament the President is satisfied that an emergency has arisen of such a nature that an earlier meeting of Parliament is necessary, then the dissolved Parliament is summoned and kept in session until the termination of the state of emergency or the conclusion of the election, whichever is sooner (art.70(7))

Welikala concludes:

The legal effect of dissolution in our Constitution can be expressed in the form of a rule and an exception. The general rule is that dissolution terminates the term of a Parliament, subject to one exception. The general rule is reinforced, expressly and unqualifiedly, by the rule that the maximum gap between Parliaments is three months (reduced from four months in the two previous constitutions). The only exception to the general rule is the occurrence of an emergency at a time when Parliament stands dissolved, when it is permitted to recall the dissolved Parliament. At the same time as all post-independence constitutions have recognised the executive as the leading actor in responding to a crisis, and equipped the executive with additional powers to do so effectively, they have also contemplated the recall of even a dissolved Parliament. The underlying rationale for both the general rule, and the sole exception to it, stems from the same principle: the norm of accountability central to all constitutional democracies.

The fact that Sri Lanka has codified this provision in its constitution suggests that it deliberately rejected the British tradition at Common Law that a dissolved parliament ceases to exist and cannot be recalled. Welikala also acknowledges that this principle applies to the United Kingdom:

“the United Kingdom, the source of most of the constitutional traditions in the Commonwealth, does not have any express legal provision for the recall of a dissolved Parliament in an emergency, although statutory provision is made for the recall of a prorogued Parliament.”[15]

And Sri Lanka’s system most certainly does not apply in Canada either because we lack any statutory or constitutional provision contradicting the rule at Common Law that a dissolved parliament cannot be recalled, which we inherited from the United Kingdom.

The Question of the Emergencies Act

Anne Twomey further explains in her magnum opus The Veiled Spectre that while parliaments already dissolved cannot be recalled in the United Kingdom, Australia, Canada, and New Zealand, the written constitutions of virtually every other Commonwealth Realm mimic those of the Democratic Socialist Republic of Sri Lanka and allow a parliament already dissolved to be recalled in an emergency. These include Antigua & Barbuda, the Bahamas, Barbados, Belize, Grenada, Jamaica, St. Kitts & Nevis, St. Lucia, St Vincent & the Grenadines, Trinidad & Tobago, and Tuvalu. Other former British colonies which have become republics – Dominica, Guyana, and Malta, – have opted for this system as well, along with Sri Lanka.[16]

For example, section 47(5) of the Constitution of St Kitts and Nevis says:

“If, after a dissolution of Parliament and before the holding of the general election of Representatives, the Prime Minister advises the Governor-General that, because of some matter of urgent national importance, it is necessary to recall Parliament, the Governor-General shall summon the Parliament that has been dissolved to meet, but the general election of Representatives shall proceed and the Parliament that has been recalled shall, if not sooner dissolved, again stand dissolved on the date appointed for the nomination of candidates in that general election.”

Purely in numerical terms, the authority to recall a parliament already dissolved has become the norm within the Commonwealth Realms and amongst some republics within the Commonwealth of Nations. But of the four Realms with the longest history of Responsible Government, New Zealand comes closest to emulating the Eastminster and Caribbean system:

“In New Zealand, the Governor-General is required by statute to summon Parliament even though it has been prorogued, dissolved, or expired, if a state of national emergency has been declared. If Parliament has already been dissolved when the emergency arises, it must be summoned to meet within seven days of the last day appointed for the return of writs.”[17]

In other words, the Governor-General of New Zealand cannot recall a parliament already dissolved if an emergency arises during the writ, but the new parliament would instead meet very soon after the election.  

Ammalie Paul argued that Prime Minister Trudeau could advise Governor General Mary Simon to recall the 43^rd Parliament during the writ under section 58.3 of the Emergencies Act:

“If a declaration of emergency is issued at a time when the House of Commons is dissolved, Parliament shall be summoned to sit at the earliest opportunity after the declaration is issued.”[18]

The Star reported earlier this week that Sujit Choudhry advised the Green Party that a dissolved parliament can be recalled, in a very Dawsonian turn of phrase, “under exceptional circumstances.”[19] But the best interpretation is that the Emergencies Act works like New Zealand’s equivalent statute and does not supersede the definition of “dissolution of parliament” at Common Law in the absence of a clear purpose and language to do so; when section 58.3 says that parliament shall be recalled “at the earliest opportunity,” this would mean that the Prime Minister would advise the Governor General to summon the new parliament after the writ forthwith, and not that the Governor General could recall the parliament already dissolved. The Governor General cannot recall a parliament already dissolved on the Prime Minister’s advice, nor can the Lieutenant Governors recall a legislature already dissolved on the Premier’s advice. Dissolution of parliament at Common Law in Canada means the definitive civil death of a parliament or legislature; they cannot be resurrected and recalled back to life during the writ but only be replaced by the new parliament or legislature. This also applies to the United Kingdom, Australia, and New Zealand. The Commonwealth Realms in the Caribbean and Tuvalu, as well as republics like Sri Lanka, have only made recalling a dissolved parliament possible by codifying the authority in their constitutions. The Parliament of Canada probably could also confer this authority on the Governor General, exercised on the advice of the Prime Minister, and modify the definition of “dissolution of parliament”, but it did not do so under the Emergencies Act, and so the definition at Common Law should still apply, which precludes the possibility of bringing a dead parliament back to life.     

Conclusion

The Scottish precedent from 2021 probably offers a more plausible model for the Parliament of Canada and the provincial legislatures. Parliament could conceivably pass a statute which changes when the dissolution of parliament occurs while preserving how the Governor General dissolves parliament on the advice of the Prime Minister, and thus keeping in line with section 41(a) of the Constitution Act, 1982. Currently, the Governor General calls a general election by promulgating a trio of proclamations at the same time: one dissolving the current parliament, a second issuing the writs of election, and a third summoning the first session of the next parliament.[20] Parliament could probably enact legislation decoupling the first and third proclamations from the second and adopt the ad hoc Scottish model permanently of declaring the parliament dissolved the day before polling day instead of a minimum of 36 days before polling day, as long as the Governor General still dissolves parliament on the Prime Minister’s advice under section 50 of the Constitution Act, 1867 and the well-established principles of Responsible Government.

But as to the Green Party’s proposal this week, the 43^rd Parliament is dead. It’s passed on. This parliament is no more. It has ceased to be. It’s expired and gone to meet its maker. This is a late parliament. It’s a stiff, bereft of life, it rests in peace. It’s run down the curtain and joined the choir invisible. This is an ex-parliament!

Similar Posts:

• Dissolution by Demise of the Crown in Canada
• Dissolution by Efflux of Time
• Why Justin Trudeau’s Snap Election Does Not Break Canada’s Fixed-Date Election Law

Notes

[1] British House of Commons, “House of Commons Recalled on Wednesday 18 August,” 15 August 2021.

[2] David Cornock, “Afghanistan: Why Is the UK Parliament Being Recalled?” BBC News, 18 August 2021.

[3] Richard Kelly, “Recall of Parliament,” Briefing Paper Number 1186, House of Commons Library, 16 August 2021, pages 9-10.

[4] Green Party of Canada, “Green Party Calls for Recall of Parliament to Debate the Desperate Situation in Afghanistan,” 16 August 2021.

[5] Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes, Volume 1, Books I & II, edited by George Sharswood (Philadelphia: J.B. Lippincott Co., 1893) at 187.

[6] Audrey O’Brien and Marc Bosc, House of Commons Procedure and Practice, 2^nd Edition (Ottawa: House of Commons, 2009), 385.

[7] Audrey O’Brien and Marc Bosc, House of Commons Procedure and Practice, 2^nd Edition (Ottawa: House of Commons, 2009), 387.

[8] Richard Kelly, “Dissolution of Parliament,” Briefing Paper Number 05054, House of Commons Library, 4 November 2019, page 13.

[9] Scotland Act (United Kingdom) 1998 chapter 46 s. 2.

[10] Scottish General Election (Coronavirus) Act, 2021 (Scotland) 2021 asp 5, s.6(1).

[11] The Scottish Parliament, “Presiding Officer Recalls Parliament Following Death of HRH The Duke of Edinburgh,” 9 April 2021.

[12] Scotland Act (United Kingdom) 1998 chapter 46 s. 13.

[13] Asanga Welikala, “The Eastminster Viceroy and the Republican Monarch: The Sri Lankan Head of State and the 2018 Constitutional Crisis in Historical Context,”  in Viceregalism: The Crown and its Representatives in Political Crises in the Post-War Commonwealth,edited by H. Kumarasingham, 231-253(Palgrave Macmillan, 2020).

[14] Asanga Welikala, “Dead or Tranquilised? The Recall of Dissolved Parliaments,” blog entry on Groundviews: Journalism for Citizens, 23 May 2020.

[15] Asanga Welikala, “Dead or Tranquilised? The Recall of Dissolved Parliaments,” blog entry on Groundviews: Journalism for Citizens, 23 May 2020.

[16] Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018), 554.

[17] Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018), 554.

[18] Emergencies Act (Canada) R.S.C., 1985, c. 22 (4th Supp.), s.58(3).

[19] Lex Harvey, “Green Leader Annamie Paul Calls for ‘Emergency Recall’ of Parliament, Which Experts Say Is Not Possible,” The Star, 16 August 2021.

[20] Canada Gazette,Part II, Extra, Volume 155, No. 6 (Ottawa: Her Majesty the Queen in Right of Canada, 16 August 2021), 1-6.