This article looks at the Royal prerogative to prorogue Parliament. It, first, looks at the British experience and places the personal prerogatives that govern Parliament in their historical context and, within that context, identifies the legislative precedents for Parliament placing limits on these prerogatives. Second, it looks at the Canadian experience, where prime ministers have deviated from their British colleagues in being adversarial with the head of state over the use of these powers. It suggests that the difference in political behaviour is the result of a combination of temporal, cultural and political factors, which have also resulted in the Canadian Parliament being disinclined to legislate remedies in the manner the British Parliament did when these powers were abused by the Crown centuries years ago.
The 40th Parliament of Canada was summoned by Governor General Michaëlle Jean for November 18, 2008. Just two weeks after she opened the first session, facing imminent defeat on a motion of non-confidence, the Prime Minister asked that she prorogue Parliament. This request was granted and defeat on a motion of non-confidence was avoided.
One year later, on December 30, 2009, the Prime Minister asked the Governor General to prorogue Parliament, and again she accepted his recommendation. This time the government was not facing a confidence vote, but was facing Parliamentary hearings on whether Afghan citizens captured as part of the NATO-led mission had been turned over to local officials with knowledge that they might be tortured. The government argued in this instance that prorogation was necessary to reset the legislative agenda, in general, and Senate committee membership, in particular, since recent retirements had shifted the balance of party membership in the Upper Chamber.
British Historical and Legal Precedent
The Constitution Act, 1867 authorized that there be “One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons” thereby establishing a Westminster-model of executive governance within Parliamentary supremacy, similar to the then parent apparatus which existed in the United Kingdom.
The preamble to this Constitution also identified its purpose as the establishment of a “Constitution similar in Principle to that of the United Kingdom”. In other words, a Constitution based for the most part on Royal prerogative bounded by constitutional convention, statute and common law.
Parliament, while structured by a written ‘constitution’ in Canada, exists, as in the United Kingdom, because of the Royal prerogative. It is to the Crown’s prerogative to summon Senators that members of that chamber owe their appointment; it is to the Crown’s writ that the Commons owes its election; and it is by act of the Crown alone that each Parliament is assembled.
In England, the prerogatives that govern Parliament emerged as a mechanism for the King to control dissent among other wielders of military and political power who, following the invasion of William the Conqueror, quickly emerged as challengers to monarchical claims of imperium, first among the nobility and then from within the church. The decision to convene an assembly of barons, prelates and ministers, which in the 13th Century was dubbed ‘parliament’, was nothing more than a political mechanism to mollify challengers to the Crown’s authority.
Parliament had an undefined membership in its early incarnations, but in the 14th Century, Edward III decided to respond to the weaknesses in his father’s reign and ‘summoned’ specific nobles and church leaders to the Parliament, thus defining the ‘aristocracy’. He also added knights of the shire and burgesses to the Parliament, breaking the body into two chambers in the process – the bicameral model of Lords and Commons which exits in the U.K. today. So the Royal prerogative to ‘summon’ individuals to Parliament emerged out of the King’s desire to limit and control the powerful interests within the country while still obtaining sufficient support for his governing the kingdom, and in Edward’s case, this specifically meant the raising of arms and money needed to fight the Hundred Years War.
Wanting to keep an eye on the King and the money being given to him, Parliaments under Edward III, first in 1330 and then again in 1332, enacted legislation that required the King to summon a Parliament annually. In practice, Parliament was not summoned every year, at least prior to the British civil war, but this was nevertheless a statutory requirement enacted by Parliament that legally bound the Royal prerogatives of summoning and dissolution until the 19th century.1
There were no sessions within these early Parliaments, and thus prorogation did not exist as a Royal prerogative. Parliament was summoned, dealt with the business placed before it – primarily the raising of arms and money – and then was dissolved by the King, who would summon a new Parliament when he next needed ‘supply’.
It was Henry VIII who came up with the clever innovation of keeping a Parliament whose membership largely agreed with him as a more permanent body, instead of summoning a new Parliament each ‘year’. Of course keeping a Parliament in session continuously, even if the membership was positively predisposed towards the Monarch, was a risky undertaking. Invariably members would want to propose legislation of their own. So, around 1530, Henry invented ‘prorogation’, whereby he would send the Parliament away without dissolving it and then simply call it back into session when he needed it again, with the same members as had met the previous ‘year’. Here again we see that prorogation, like summoning and dissolution, was nothing more than a mechanism for the Crown to avoid accountability and to restrain the legislative and governing impulses of competing political interests.
Henry’s breaking with the Catholic Church and his need to establish succession among his children from different spouses laid the foundation for Parliamentary supremacy ironically in the very era when the King is seen as the closest the British ever had to an absolute monarchy. While the Tudors had discovered that the Crown in Parliament could be more powerful and more legitimate than the Crown acting alone, these longer Parliaments, in spite of periodic prorogation, were becoming self-aware. Demands emerged that they be permitted to deal with matters outside of the things laid before Parliament by the Queen, including grievances on behalf of the people.2
The most dramatic changes occurred under Charles I, who tried to rule for 11 years without convening a Parliament, and when he finally did summon a Parliament, he dissolved it within three weeks. Still needing money, he was forced to summon another Parliament, and this one forced him to assent to the Dissolution Act 1641.3 This Act allowed for the Lord Chancellor or, in his absence, the House of Lords to issue writs of election for the Commons if the King failed or refused to summon Parliament for at least one session every three years (the session had to last a minimum of 50 days). This Act also placed a limit on the Royal prerogative to give or withhold Royal assent.4
Three weeks later, the two Houses of Parliament put before the King An Act against Dissolving the Long Parliament without its own Consent 1641, which did exactly what the title states. This provided the legal legitimacy for the ‘Long Parliament’, which continued to sit through the civil war, the King’s execution, and was reconvened at the end of the interregnum so as to maintain the constitutional continuity needed to restore the ‘unbroken’ monarchy.5
Upon restoration, Parliament repealed all laws from this period in a wave of anti-republican sentiment. And while Parliament repealed the Dissolution Act, it subsequently enacted the Triennial Parliaments Act 16646 to maintain the requirement that Parliament be convened at least once every three years. Since this law did not have a mechanism by which Parliament could summon itself, the restored monarch, Charles II, was able to ignore this law to which he had assented and govern for the last four years of his reign without a Parliament.
The Bill of Rights 1688 states that parliaments ought to be held frequently, though this vague wording has proven unenforceable, and this Act along with the Act of Settlement 1700 and the Succession to the Crown Act 1707 firmly established Parliamentary supremacy by the end of the reign of the Stuart line.
Even though Parliamentary supremacy had been established, the continued use by the monarch of Royal prerogative to summon, dissolve and prorogue Parliaments he was dissatisfied with made it necessary to occasionally pass legislation to circumscribe these personal prerogatives. For example, the Meeting of Parliament Act 1694 set a maximum duration for a Parliament at three years, as well as restating the requirement that a Parliament must be summoned at least once every three years.
It is noteworthy that during this period, 200 years after Henry VIII had invented prorogation, there continued to be public debate over whether prorogation should be ended and a return to the legislative requirement that the King summon a new Parliament every year. This debate became even more fevered when the Hanoverian George I, and his Whig supporters in Parliament, claimed that elections every three years were too costly and introduced the Septennial Act 1715, thereby increasing the length of a single Parliament to seven years to deny Tories who supported the Stuarts electoral opportunities. For their part, the Chartists argued that these longer Parliaments enabled the Crown to manipulating elections using money, something they felt would not be as easy to do with annual elections.7
More recently, the Meeting of Parliament Act 1797 ordered that 14 days needed to elapse from the proclamation of a new Parliament until it meets so that the Crown could not quickly convene a Parliament before all the results could be certified and the members could travel to London. This law also allowed for Parliament to meet in the event of the demise of the Crown (otherwise Parliament would dissolve upon the death of the monarch who summed it). Prorogation was also altered to ensure members had adequate time to learn of any change to the start date of a session via the Prorogation Act 1867 and the Representation of the People Act 1918. The Parliament Act 1911 split the difference between triennial and septennial and set the maximum lengths for a Parliament at five years, whereupon it is automatically dissolved without the need for any Royal action.8
While the British experience has been one of necessary Parliamentary limits on the Royal prerogatives in response to heavy handed monarchs, it is noteworthy that in the modern democratic era, British prime ministers and cabinets have been largely respectful of both (i) parliamentary supremacy and (ii) the independence of the monarch in the exercise of her personal prerogatives. Even Stanley Baldwin, who presided over the largest single power grab by any British prime minister, limited his designs on the personal prerogatives to simply the right to make a personal recommendation to the monarch on the use of these powers.9 But, as Prime Minister Harold Macmillan noted with respect to the power of dissolution, the Royal prerogatives that manage Parliament must remain singularly in the hands of Her Majesty and a prime minister should never go beyond making a recommendation to giving Her Majesty ‘advice’. “This, the last great prerogative of the Crown, must be preserved. It might be of vital importance at a time of crisis”.10
The lesson from British history that Canada should have taken when it imported the Westminster model and its constitution conventions in 1867 was that the Royal prerogatives that manage Parliament can be used to advantage the Crown and, thus, in the spirit of democracy the access of the PM to them should be circumspect for, when they are misused, Parliament can legislate limits.
The Canadian Responsible Government Model
The Canadian experience has been much different than the British experience. Where England went through the early battles between the Crown and Parliament over the personal prerogatives, in Canada these powers have been a battle between prime ministers and governors general. This reason for this difference can best be understood as a combination of temporal, cultural and political factors.
From a temporal perspective, Canada’s much shorter history has meant that the struggle for democracy has been about governance and not about representation. This defines all aspects of its constitution. As noted in the previous section, the British experienced battles between the Crown and Parliament and it learned from these battles. The historical memory that most defines their democracy is the product of a civil war, a glorious revolution and the establishment of Parliamentary supremacy. This principle, in turn, informs every aspect of its constitution.
What was occurring at the time of Canada’s formation was the devolution of Royal prerogatives in favour of ministers who would be responsible for them before Parliament, i.e. responsible government. In the colonies of British North America, the settlers had brought with them a British constitutional right to an elected assembly. Not only was a struggle for representation not central to the colonial experience, the electoral franchise in colonized and conquered Canada had made its assemblies more ‘democratic’ than those in free and democratic imperial England due to the abundance of land in the new territories and the property requirement that was believed to be necessary for voting. So the struggle for democracy in Canada was taking decision making away from the representative of the imperial government, the governor, and vesting it in the hands of Canadian politicians.
It is no coincidence that the milestone achievement of responsible government in 1848 continues to this day to be acknowledged in Canada the way that Parliamentary supremacy is honoured in England. These two separate, and sometimes contradictory, ideals in turn inform each of the political systems.
Put simply, formative historical events manifest themselves in the institutions they create and thus in the political culture that these institutions constrain, shape and create.
Turning specifically to the cultural dimension, that British politicians and the British people have a different relationship with their monarch than Canadian politicians and people have with their governors, and that this would colour the use of Royal prerogative, should not be surprising. For millennia, monarchs have strategically cloaked themselves in quasi-religious symbols of authority in order to transform themselves into the personification of their people’s national identity. British politicians of most stripes have learned the benefits of cloaking public authority in this same mantle. Prime ministers come and go as temporary custodians of deputed power while the monarch stays. But this culture of deference to the symbol of authority does not exist in a colony.
Early colonial governors in Canada were charged with overseeing day-to-day governance. As members of the British aristocracy, they brought both experience and a paternal attitude to the new country along with proconsul powers. For example, in the letter Lord Elgin wrote to the British Secretary of State for the Colonies recommending that the British government grant responsible government to the province of Canada he noted that Canadian politics was more partisan and Canadian politicians more self-serving than their British cousins, a defect he was optimistic he and future governors would correct. What would become a culture of prime ministerial and gubernatorial conflict was evident in the very manner responsible government was proposed for the colony from the outset.
Canada’s first prime minister, John A. Macdonald, had his recommendation that Parliament be prorogued challenged by the governor general in 1873. As Macdonald was trying to avoid facing a Parliament that was upset about the Pacific Railway Scandal, Lord Dufferin insisted that Parliament only be prorogued for 10 weeks during which time a Royal Commission would inquire into the scandal and report upon Parliament’s return, which it did, resulting in Macdonald’s resignation. When Macdonald returned to power, we see the first order-in-council passed by a Canadian Cabinet, in 1896 (well before Baldwin had a similar idea in England), proposing that the prime minister provide recommendations to the Governor General on a large number of His Excellency’s constitutional prerogatives, including the dissolution or convocation of Parliament.
The third dimension that explains the difference between the way Canadian prime ministers and British prime ministers have behaved with respect to the person prerogatives is political. With the emergence of the Progressives by the 1920s, Canada has become a country of effective regional third parties, and thus began a long history of divided parliaments. Shortly after becoming Prime Minister, realizing that election timing would be necessary to stave off the loss of his Parliamentary majority, William Lyon Mackenzie King had the Cabinet pass an order-in-council specifically authorizing the prime minister to recommend when Parliament should be dissolved and an election held. The election he recommended be called the following year kept the Progressives and the Conservatives out of power.11 By the following Parliament, Mackenzie King was 23 seats short of a majority. It was this Parliament which, facing a motion of censure, Mackenzie King tried to get Lord Byng to dissolve, a request that was denied by the Governor General. The PM even tried to use an order-in-council passed by the Cabinet, a mechanism he had himself tried to eliminate with respect to dissolution, to bring added pressure on Byng; and he tried to convince the Governor General to wait for instructions from the British government. Byng did not give in, King was forced to resign, and Conservative Leader Arthur Meighen became PM.
As one of Canada’s leading constitutional experts, the late Senator Eugene Forsey, points out, the honourable thing – the British thing – for the Canadian prime minister to have done in these circumstances would have been to ‘recommend’ immediately following the election that Meighen be given an opportunity to try to form a government.12 Mackenzie King subsequently used the issue to vilify Byng, an otherwise popular Governor General, in the next election and, once re-elected, leverage this issue to force the British to surrender political authority over colonial governors and get the British Parliament to pass the Statute of Westminster effectively granting Canada independence.13 Running against a symbol of colonization had strategic merit. Sir Alan Lacelles, personal secretary to the King George VI, would later bemoan the damage this incident did to the monarchy in Canada and suggest that His Majesty and His governors general should never refuse a request for dissolution unless there was clearly a viable alternative government, in effect reducing the Crown’s discretion over the personal prerogatives.14
In 1957, as Liberal fortunes were waning after 22 years of unbroken rule, a Canadian prime minister again attempted to increase his personal influence over the personal prerogatives. Beginning that year, the prime minister’s recommendations to the governor general began to be submitted outside of even a minute in the Cabinet record and instead were delivered via a letter which has been given the lofty and entirely inappropriate label of an ‘instrument of advice’. As British Prime Minister Macmillan noted, a prime minister has “no right to advise a dissolution” as this is a personal prerogative of the monarch.
This change resulted in only one question being raised by the opposition in the House of Commons, a question which got the unchallenged response that Cabinet minutes were not the appropriate ways to make recommendations to the Governor General. There was no explanation as to why a private letter that would exclude input from other ministers and which was clearly intentionally mislabelled as ‘advice’ was a superior mechanism. And in 2009, when it was reported in the press that the prime minister had simply telephoned the governor general to get Parliament prorogued not a single question as to process was raised in the House.
In fact, in spite of a long history of disagreements between prime ministers and governors general, and a clear and ongoing power grab by the former, the Canadian Parliament appears to have consciously avoided legislating on the personal prerogative.15 Over the protest of a number of politicians and constitutional scholars at the time, provision was placed in the Canadian Charter of Rights and Freedoms to set the minimum requirements that no Canadian Parliament is allowed to run longer than five years, and that Parliament must sit at least once every twelve months (s.5).16 The Parliament of Canada Act allows for Parliament to meet in the event of the demise of the Crown, though it does so while protecting the powers of the governor general to prorogue or dissolve Parliament.
In 2007, the Canada Elections Act had a requirement for a fixed election date added to it, though it equally had a clause saving the personal prerogative over dissolution, which permitted the PM to by-pass his own legislative initiative on September 7, 2008 by recommending that the governor general dissolve the very Parliament that adopted the fixed election date.17 Even in response to the recent prorogations, Parliament opted not to legislate with respect to the personal prerogatives, choosing instead to pass a non-binding resolution on March 17, 2010 that suggests that the Prime Minister should not ‘advise’(sic) the governor general to prorogue Parliament for longer than seven days without a motion from the House. The prime minister should not be advising the governor general with respect to any of the personal prerogatives, irrespective of the number of days involved.
Unlike the British, the Canadian experience has been of Canadian prime ministers being confrontational with governors general in a seemingly increasingly successful play for the personal prerogatives, while the Canadian Parliament remains silent even as these powers have been used against it.
British scholars have long debated how constitutional convention might inform and restrain the personal prerogatives with respect to government formation were the British people to begin returning divided Parliaments.18 In anticipation of the May 6th British election, public opinion polls were suggesting that no political party could win a majority of seats. In Canada this has been the norm in many elections, but in England this is the exception and had not occurred since 1974, so the pre-election discourse centred on the potential for a ‘hung’ parliament. How the British prime minister responded to public and Parliamentary concern is illustrative of the differences between Britain and Canada.
In advance of the election, Prime Minister Gordon Brown asked the Cabinet Secretary to codify the unwritten constitutional ‘conventions’ – i.e. the rules of behaviour accepted as obligatory by all those concerned in the working of the constitution19 – into the Cabinet Office manual that would then govern the operations of the public service. A draft of the relevant section concerning elections, which includes discussion of a possible process by which the political parties in the Commons could explore alternative government configurations within a ‘hung’ parliament with the help of public servants, was submitted to a select committee of Parliament.20 The committee provided its recommended changes.21 All political parties made public commitments to ensuring that the Queen not be forced to take sides or be seen in the public’s eyes as supporting either the current government or any one political party, and to ensuring that Parliament be given an opportunity to fulfil its role as the ‘electoral college’ for the country.
The process offered by both the draft Cabinet Office manual and the Parliamentary response was about ensuring that Parliament would have sufficient time to choose a government, that opposition parties would get the necessary support of senior public servants to explore government formation options, including the possibility of forming a ‘coalition’ government to replace the Brown government, and of ensuring that the Brown government would remain limited by the ‘caretaker’ government limits and therefore not bind future governments not just during the election but until Parliament had an opportunity to express its confidence in either that government or in another.
Not only can one not imagine any Canadian prime minister committing, in advance of an election, to such open engagement with the other political parties in the hopes of fine tuning constitutional conventions that govern the transition of power out of his hands, but the Canadian experience is a chronology of prime ministers doing the opposite – of PMs, behind closed doors, using the tools of the executive branch to try to exploit ambiguity in constitutional conventions in order to hold onto power in the face of not having or likely being able to win a majority of seats in the House of Commons.
Put simply, while Canada and Britain share the same Westminster model of responsible parliamentary government, temporal, cultural and political circumstances have led to the system being operated in Canada as though it is singularly about government, whereas in Britain, it remains first and foremost about parliament.
1. The act of 1362 was repealed in 1863, and the act of 1330 was repealed in 1881 (44 and 45 Vic, c.59).
2. See my paper on pro forma bills in vol. 4, issue no.4 (2009) of this Journal.
3. These ancient acts did not have a short title, which is a recent development, so the labels applied are those of popular usage or those granted by Parliament ex post facto. This act is also sometimes referred to as the Triennial Act 1641. Until 1962, British Acts of Parliament are referenced by the year of the reign, monarch and chapter number in the statute book.
4. The Act required the King to give assent to this legislation before Parliament could be dissolved; a provision which ensured the law would come into force. Prior to this point, British monarchs chose whether or not to give assent to legislation after Parliament had been dissolved, free of any Parliamentary oversight, including the only real threat that Parliament has over the executive branch, the withholding of supply
5. While these laws are often derided by constitutional scholars for setting the stage for Parliament to wage war against the King, they vindicate themselves simply by allowing Parliament to restore the monarchy under the English constitution after the war. It is these laws that preserved Royal prerogative, rather than extinguished it. In France, for example, when the King used his prerogatives of prorogation and dissolution excessively to try to control the legislature, it simply announced in 1789 that it was no longer a parliament but a ‘national assembly’ with joint responsibility to govern and could not be dissolved without its consent. This led to revolution and the end of the monarchy.
6. It was repealed by 50 & 51 Vic, c.59 as being unnecessary, due to the subsequent Meeting of Parliament Act 1694.
7. See, for example, the speech of Mr. Hutcheson to the House of Commons during the debate to repeal the Triennial Act [The History and Proceedings of the House of Commons: Volume 9: 1734-1737 (British History Online: www.british-history.ac.uk, 1742, accessed on January 29, 2010), p.1-32].
8. While a proclamation is not required to dissolve Parliament at the five year point (the point being five years to the day of its first meeting after a general election), a proclamation is still required to summon a new Parliament.
9. See, for e.g., A. Berriedale Keith, The King, the Constitution the Empire and Foreign Affairs: Letters and Essays 1936-7 (London: Oxford University Press, 1938), p.41. In addition to a power grab, this change was made due to a misreading of the expert opinion solicited from the King’s legal advisors concerning the right of an as yet un-appointed PM to make recommendations or give ‘advice’ to the monarch [Geoffrey Marshall, 986. Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford: Clarendon Press, 1986), p.49-51].
10. Harold Macmillan, Riding the Storm 1956-1959 (London: Macmillan, 1971), p.750.
11. Party loyalties fluctuated in this Parliament, so the Liberal claim to have had a majority of seats in the House of Commons is disputable, but as the Progressives had no interest in governing, there was no doubt that the King Government had obtained the electoral mandate to continue in power.
12. Eugene Forsey, The Royal Power of Dissolution in the British Commonwealth (Toronto: Oxford University Press, 1943).
13. Ironically, it was Prime Minister Mackenzie King who had recommended the Governor General wait for instructions from Britain. Lord Byng’s actions were solely as the representative of the Crown and thus they remain unchanged by the Balfour Decloration or the Statute of Westminster.
14. John Wheeler-Bennett, George VI: His Life and Reign (London: Macmillan.Wheeler-Bennett 1958), p.774.
15. That the Canadian Parliament could legislate with respect to the personal prerogatives is without question. It has legislated with respect to many Royal prerogatives, particularly those which govern the operations of the executive branch. It has also legislated, albeit marginally, with respect to the Queen by allowing for the abdication of King Edward VIII through the Succession to the Throne Act 1937 (1 Geo VI, c.16) and, in 1952, assigning separate titles for the Queen to use in Canada via the Royal Styles and Titles Act (RSC 1985, R-12). While it could not abolish the monarchy or the office of governor general pursuant to s.41(a) of the Constitution Act, 1982, and some might argue it could not fully extinguish a personal prerogatives pursuant to the Judicial Committee of the Privy Council decision in Re the Initiative and Referendum Act, it has the clear authority to reverse successive Canadian prime ministers’ attempts to co-opt these powers and in the process regulate the circumstances surrounding their operation.
16. Except in a time of war and insurrection as provided for in s.4.2.
17. Bill C-16, introduced early into Stephen Harper’s first term as PM, on May 30, 2009, during the 1st Session of the 39th Parliament, entitled An Act to Amend the Canada Elections Act was intended to illustrate the government’s commitment to democratic reform [it was given Royal assent on May 3, 2007, and is now SC 2007, c.10]. At the provincial level, the provinces of British Columbia, Ontario and Newfoundland and Labrador each have fixed election laws that equally save the lieutenant governors’ power to prorogue and dissolve the legislature, though these have been effective in achieving fixed election dates.
18. See, for e.g., Vernon Bogdanor, Multi-Party Politics and the Constitution (Cambridge: Cambridge University Press, 1982), ch.5-8; David Butler, Governing Without a Majority: Dilemmas for Hung Parliaments in Britain (London: Collins, 1983); Rodney Brazier, “Choosing a Prime Minister”, Public Law 395 (1982); and Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford: Oxford University Press), pp.33-35.
19. This is the most accepted definition of a convention, authored by Kenneth Clinton Wheare, Modern Constitutions (Oxford: Oxford University Press, 1951), p.179.
20. The chapter, number 6 in the manual, is entitled “Elections and Government Formations” and was provided to the ‘Justice Select Committee on the constitutional processes following a general election’ on February 24, 2010 and is available at http://www.cabinetoffice.gov.uk/newsroom/news_stories/100224-election.aspx (accessed on March 29, 2010).
21. The report of the Select Committee on the constitutional processes following a general election can be found at http://www.parliament.the-stationery-office.co.uk/pa/cm200910/cmselect/cmjust/396/39604.htm (accessed on March 29, 2010).