It’s the Motivation and Impact That Matter When Government Requests Prorogation of Parliament

Prime Minister Boris Johnson’s decision to prorogue the UK Parliament last week reminded us of Prime Minister Stephen Harper’s twice-proroguing of the Canadian Parliament in the space of about a year. It is, say supporters, just like any other quite regular prorogations; not so, say opponents, they undermine the nation’s constitutional structure. What makes the difference? The reason, the motivations, for the disruption of the parliamentary sitting in each case. What can be done about unconstitutional proroguing of Parliament? I discuss three responses.

As we have seen in the United States, constitutional structures are effective as protections against arbitrary actions by the executive only when all actors play their parts and when they are so deeply embedded in political culture that the public will not tolerate significant deviations. When this does not occur, what might have been considered abnormal, even outrageous, becomes “normalized” and the constitutional arrangements and administrative by products shift. Similarly, by agreeing to the requests, in the UK, the Queen’s and in Canada, the Governor-General’s approval of especially the 2008 request, some would say “acquiescence”, lent an air of normal constitutional practice to these prorogations (the UK’s will occur soon).

As far as parliamentary systems go, the executive in parliament is to respect the authority of parliament and the head of the executive, the monarch or representative, is meant to ensure that deviations from that are controlled. (Section 9 of the Constitution Act, 1867 declares, “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen” and section 10 refers to the Governor General “carrying on the Government of Canada on behalf and in the Name of the Queen”.)

The issue of appropriate prorogations of Parliament fall within the constitutional principle of responsible government, which governs the relationship between the executive and the legislature, thus linking the governing party’s status with support in the House of Commons. Despite considering the prime minister as somehow gaining their status from their position in parliament, it derives from their position as head of the governing party, not independently. It is part of our unwritten constitution that the executive in parliament respects the will of Parliament.

When the will of Parliament is, through a vote of non-confidence, no longer no longer in support of the governing party, it is appropriate, if there is no other party or combination of parties that can attract the support of Parliament, to dissolve the House, with an election to follow. Even this requires the agreement of the Queen in the UK and, by virtue of section 50 of the Constitution Act, 1867, the Governor General in Canada (“Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer.”)

It is also possible, however, that the prime minister will request that the monarch/governor general prorogue parliament for a specific time period, with no election to necessarily follow.

(A short detour: In Canada, the federal Elections Act provides for fixed-date elections every four years, while preserving the Governor General’s discretion to dissolve Parliament. This approach is more in keeping with the presidential system in, for example, the United States, and not consistent with the Westminster form of government, in which an election can occur at any time, with the approval of the Governor General. Nevertheless, despite the fixed-date, the Governor General must still authorize dissolution, government can lose power through non-confidence at any time and the prime minister might call an election within the four years (as did Prime Minister Harper soon after the fixed-date legislation was enacted). The Federal Court of Appeal has held that legislation cannot affect either the Governor General’s or the prime minister’s discretion in calling an election prior to the end of the four year period (appeal to the Supreme Court of Canada denied).

Under section 1 of the Fixed-term Parliaments Act 2011, the UK Parliament has fixed terms of five years. The Act provides for earlier elections, but they must meet certain conditions. And the Act “does not affect Her Majesty’s power to prorogue Parliament”.)

There is an important difference between recess or adjournment and prorogation and between dissolution and prorogation: in the case of recess or adjournment, parliamentary business continues, while in the case of prorogation and dissolution, business ends and any matters still on the order paper die, including bills that have been enacted but have not received royal assent, and neither committees nor members can engage in parliamentary business. Dissolution precedes an election, after which the new parliament begins on a pre-determined date; when parliament is prorogued, it returns on a predetermined date without an election in the interval. (However, there are exceptions when bills can be reinstated at the start of the new session: Marc Bosc and André Gagnon, eds., House of Commons Procedure and Practice, “Parliamentary Cycle”).

It is also important that in both cases, the government continues in authority when Parliament resumes. The cessation of parliamentary business and the continuation of government authority during prorogation are particularly important factors in the Johnson prorogation of the UK Parliament.

A reminder before I go on about our own “proroguing” experiences in 2008 and 2009. I take some of this from an article I wrote on “Canada: The Rule of Law” in the October 2013 issue of the Journal of Parliamentary and Political Law, a compilation of articles on the rule of law. I addressed the prorogation issue in that article, which considered the rule of law in Canada more broadly, as it related to governance and parliamentary sovereignty. Of course, parliamentary sovereignty has been limited by the introduction of the Canadian Charter of Rights and Freedoms, giving the courts the obligation to consider the constitutionality of legislation beyond whether it is within jurdisction and whether it meets unwritten principles. However, it is not restricted as far as the relationship between the executive and the legislature are concerned.

In November 2008, the Liberals and the NDP agreed to form an executive coaltion (to share cabinet positions), with a promise by the Bloc Québécois not to move non-confidence for 18 months, if the Conservatives lost an expected non-confidence vote (non-confidence in the Prime Minister’s economic plan). In December, only six weeks after the previous election and after Parliament had sat for only 13 days, Prime Minister Harper requested the Governor General to prorogue Parliament before opposition day, thereby avoiding the non-confidence vote. Parliament resumed sitting near the end of January 2009, by which time the coalition had dissolved. In this instance, the Prime Minister had used prorogation to avoid what was sure to be the loss of confidence of the House, thereby circumventing the operation of responsible government.

The second questionable instance of Prime MInister Harper’s using prorogation to avoid the will of Parliament occured about a year later in December 2009 in order to avoid the Speaker’s order to produce to parliamentarians documents related to the handover by Canadian military of Afghan prisoners to the Afghan government. He was certainly not the first to request prorogation under these circumstances. Prime Minister Jean Chrétien did the same in 2002 to avoid tabling a report about the Liberal ad scandal and Canada’s first prime minister, Sir John A. Macdonald sought prorogation to avoid a committee’s investigation of corruption related to the proposed Pacific Railway. (For the history of prorogations, see Nicholas A. MacDonald and James W.J. Bowden in Canadian Parliamentary Review.)

When prime ministers determine that it is for their own benefit to seek to prorogue Parliament or when prime ministers decide to do so because what they want is in opposition to what Parliament has already indicated is its decision, the legitimacy of prorogation is thrown in doubt. It is then that we turn to the monarch or her representative to ensure constitutional practice is observed. However, it is in fact here that we see a problem.

To the extent that a prime minister’s recourse to prorogation may seem to be contrary to constitutional principles because it undermines democracy, that is, the sovereignty of parliament, there are several ways in which it can be addressed: at the outset, by the monarch or governor general refusing the prime minister’s request; through judicial review to prevent it when approved by the monarch/governor general; when there is the opportunity, a vote of non-confidence by the other parties; or by loss of the prime minister’s party’s power in a subsequent election.

The monarch/governor general has the reserve power to deny the prime minister’s request for prorogation. On the one hand, there are those who argue this should have happened when Prime Minister Harper requested the Governor General to prorogue Parliament in 2008 and 2009 and when Prime Minister Johnson requested the Queen to do so last week, in both cases because these requests were motivated by a desire to circumvent legitimate actions by Parliament. On the other hand, others argue that the refusals would be sure to elicit a constitutional crisis, since the monarch/governor general takes the advice of the prime minister, with the reserve power having fallen into disuse.

In Canada, constitutional scholars’ views about the use of the reserve power to deny a request for prorogation cover the spectrum and are succinctly summarized by MacDonald and Bowden:

Of the scholarship on the Harper-Jean prorogation of 2008, Andrew Heard occupies one extreme in his support for the use of the reserve power in matters of prorogation and the argument that Governor General Michaëlle Jean should have rejected Prime Minister Stephen Harper’s advice to prorogue in 2008. In the middle, C.E.S. Franks also acknowledges the applicability of the reserve power to prorogation but reluctantly concludes that “the governor general made the right decision.” Peter Hogg, Adam Dodek and Barbara Messamore accept that the reserve power still applies to prorogation but believe that the governor general wisely accepted the prime minister’s advice for various reasons more emphatic than those of Professor Franks. Professor Hogg, for instance, believes that an imminent vote of confidence suffices to activate the reserve power that allows a governor general to reject a prime minister’s advice. At the other extreme, Henri Brun argues that the governor general possessed no personal discretion because the reserve power does not apply to prorogation; he supports a more narrow interpretation of the power and would sanction it only in the gravest emergency. Guy Tremblay agrees with Professor Brun and believes that “the governor general must accede to a request of prorogation or dissolution.” Finally, based on the writings of the late Professor Robert MacGregor Dawson, the Harper-Jean prorogation of 2008 did not meet the constitutional test on the acceptable use of the reserve power. (citations omitted)

MacDonald and Bowden state, “Responsible government means that when the political executive commands the formal confidence of the House of Commons, the monarch or his or her representative is bound by constitutional convention to follow and carry out the advice of the prime minister or cabinet in all matters” and that “[t]he governor general should only invoke the reserve power in order to safeguard parliamentary democracy from collapse”. They quote Professor David Smith: “‘the problem with the reserve power today is not so much how to check the Crown’s use of it as how to prevent the prime minister from abusing it.'”

Johannes Wheeldon, in a letter to Canadian Parliamentary Review criticizing the MacDonald and Bowden analysis, described the 2008 prorogation as “‘a constitutional harm which prevented Parliament from perorming what Eugene Forsey called ‘its most essential funciton’ — deciding who shall govern'” (quoted from my article in Journal of Parliamentary and Political Law). He maintained, “[b]y agreeing to prorogue, she upended core principles of responsible government, and the legitimacy of Canada’s democracy became contested.” The governor general’s “overriding mandate to uphold the basic principle that the government must retain the confidence of the House” supercedes the erosion of the Crown prerogative and the convention that the governor general will accept the advice of the prime minister.

As Errol Mendes has written in the Globe and Mail,

There are major constitutional lessons to be learned from this Brexit crisis, not only for Britain but also for the many parliamentary systems that have been derived from the British model. The reserve powers of the Queen in Britain or the Queen’s representatives in Canada should be regarded as a safety valve for protecting the foundations of constitutional democracy.

However, as now seen both in Canada and in the Mother Parliament, there seems to be an extreme reluctance to go against the advice given by prime ministers on the use of the reserve powers, even when there is ample evidence that its use could undermine the majority of elected members of Parliament. This strikes a dagger at the heart of parliamentary democracy.

It would be normal for the UK Parliament to recess — for three weeks — at this time, since the parties have their meetings; a five week prorogation is unusual. There are those in the UK who believe that the Queen should have refused to grant Prime Minister Johnson’s request to prorogue Parliament. Commentators have suggested that judicial review may be an appropriate way to address the crisis in Britain now and there are three proceedings for judicial review underway. Indeed, in the hope of preventing the request for prorogation, 75 anti-Brexit MPs and peers in the UK brought an application prior to Johnson’s request to the Queen; however, a judge refused to issue a temporary injunction against the prorogation, but said that the full case needed to be heard “urgently”.

It is not at all clear that judicial review is available in these circumstances, but there are strong arguments that the constitutional principle at stake is sufficiently foundational that the decision to prorogue warrants judicial review.

Referring to case law from the seventeenth century on, Paul Craig writes on the Oxford Human Rights Hub blog that these cases all place “constraints on prerogative power” and “protect parliamentary sovereignty”:

Parliament is the legitimate legislator within the UK and the case law protects that authority from being undermined. If the executive could change the law of its own volition, it could thereby bypass legislation without amendment or repeal, hence the principle in Proclamations. If the executive could use the prerogative where Parliament had already addressed the issue in an existing statute it could then avoid the legislation crafted by Parliament, hence the principle in De Keyser, and its extension to cases where the prerogative would frustrate the legislation. If the executive could render a constitutional statute devoid of effect through recourse to the prerogative, the statute would not be worthy of that appellation, hence the reasoning on this issue in Miller, drawing on that in HS2.

Johnson’s use of prorogation of Parliament, Craig argues,

constitutes a pre-emptive strike that takes Parliament out of the entire game for the crucial period during which it is prorogued. It affects not merely one piece of legislation, but its capacity to exercise the totality of its legislative authority, thereby severely curtailing the opportunity for parliamentary voice on an issue that, whatsoever one’s views about Brexit, is of major importance for the UK’s future. This is, moreover, the reason why judicial intervention in this instance would not signal some general judicial intrusion in this terrain. The use of prorogation in this instance is singular, and warrants judicial intervention.

Furthermore, Prime Minister Johnson had indicated that his recourse to prorogation was to bypass a “recalcitrant Parliament” (in Craig’s words) and “[t]his is not and cannot be constitutionally correct” because it stands the foundational principle of parliamentary sovereignty on its head.

Craig dismisses the claim that prorogation is necessary to permit the government to present a new throne speech and legislative agenda, and therefore legitimate, since in practice, prorogation results in Parliament’s being unable to enact necessary Brexit-related legislation during that period and that there is nothing to prevent the government from “kickstarting [the PM’s] new agenda now”.

A Canadian academic in administative law, Paul Daly, writes on his own blog that while there may be grounds for judicial review of the use of the prerogative in the form of the prorogation power, “Prorogation can … be characterized as a high policy matter which should not be subject to judicial interference. Canadian courts have, when asked to review exercises of prerogative power, been extremely reluctant to intervene.” He also suggests that even if Johnson has “ulterior motives” (related to pushing through an actual or threatened no-deal Brexit), these are “rather perfectly plausible (though of course politically contestable) justifications for prorogation”.

Daly suggests that the Ontario Court of Appeal decision in Lalonde v Ontario might have some relevance here. Lalonde addressed the closing of a francophone hospital; although the decision by a tribunal was a discretionary one, the Court of Appeal quashed the decision because in failed to consider the unwritten principle of the protection of minorities, which as part of the structural underpinnings of the constitution, transcended the applicability of the specific guarantee of equality under section 15 of the Canadian Charter of Rights and Freedoms (which did not apply here). Its relevance, as far as Daly is concerned, is that

It might be said that prorogation interferes with a fundamental constitutional principle, the sovereignty of Parliament. By shutting down Parliament (and its committees) for several weeks at a critical juncture, the prorogation prevents Parliament from holding government to account and from legislating (inasmuch as this is possible) to prevent a No Deal Brexit.

Daly’s analysis understates the significance of parliamentary sovereignty’s status as a fundamental constitutional principle and its interplay with the use of prorogation. Proroguing parliament may be a normal aspect of the operation of parliament and thus of the constitutional order. However, it may also be abused when it is used to sidestep or circumvent parliamentary sovereignty and in that case, it is not consistent with the constitutional order. On this, Craig’s analysis is the stronger one in understanding the constitutional significance of usurping parliamentary sovereignty.

There are those who see the issue as at heart a political, rather than constitutional, one, simply a dispute over no deal Brexit. And there are political options to preventing the slide towards a no deal Brexit. I discuss them briefly because of their association with prorogation. To the extent that prorogation occurs immediately, there is no opportunity for the other parties to act, since parliament ceases to function until the date for its return. In the UK case, however, there is a gap between the monarch’s approval of prorogation and the prorogation. The UK Parliament will return today (September 3rd), will be prorogued sometime between September 9th and September 12th and will return on October 14th. The “crash out” date for Brexit is October 31st.

The House of Commons can pass a “humble address” to the Queen that expresses its dissatisfaction with prorogation; although it does not have practical impact, it is a way that MPs can voice their opposition. MPs can also vote “to take control of Parliament”, meaning that the executive has lost control of the actions of Parliament (this occurred while Theresa May was prime minister). [This is what MPs voted to do 328 to 301 after I had originally published this post; 21 Conservatives voted against the government and they had the whip withdrawn (that is, they were ejected from the party).]

The Conservatives no longer have a majority as of today as one of the party’s MPs joined the Liberal Democrats. It is possible for the other parties, to vote again against a no-deal Brexit (as they did earlier after rejecting Prime Minister Theresa May’s deal). MPs could vote no-confidence in the government, although this must be done while Parliament is in session and under the Fixed-term Parliaments Act 2011, there must be an opportunity “to take back” this show of no-confidence within fourteen days, a period not feasible before prorogation occurs. Were it possible, however, this could lead to an election (and dissolution of Parliament), meaning the UK would leave the EU without a deal and automatically on October 31st, or to a coaltion government that would seek an extension of the October 31st deadline for Brexit. Of interest, is whether this could lead to the new prime minister seeking the revocation of prorogation, although the timing makes all this unrealistic. The Guardian newspaper published a chart of the possibilities, complications and difficulty of working within the limited time before October 31st.

(On this point, Johnson has threatened an election himself instead of proroguing parliament Again, however, there are restrictions on calling an early election under the Fixed-term Parliaments Act 2011: to call an early election, Johnson must secure the support of 2/3 of the House.)

The other response, which I will mention briefly, to what is perceived an improper use of prorogation is through the ballot box. There have been occasions when the party responsible for prorogation has lost a subsequent election and occasions when it has not. Electoral dissatisfaction for an improperly motivated prorogation requires that the electorate appreciate the foundational principles of the Westminster constitutional arrangement, that an improperly motivated prorogation matters sufficiently to vote on that basis (even if perhaps otherwise supportive of the party’s agenda) and, to deliver an effective message, that it is possible to distinguish that reason from other reasons for voting against the party. Under the circumstances in the UK, even if an election were to occur (in conjunction with an extension of Brexit to later than October 31st or a dramatic development in Parliament to change the trajectory completely), it would be unlikely that any election would be based on prorogation rather than on Brexit itself.

The Harper prorogation in 2008 in particular was serious in constituting abuse of the relationship between the political executive and Parliament, that is avoidance of the non-confidence vote. The 2008 prorogation may be seen as a crass — and successful — attempt to circumvent parliamentary oversight. The UK situation may be considered far more serious, since, in addition to reflecting contempt for constitutional arrangements by Prime Minister Johnson, prorogation has been used as a tool in order to advance a course for the UK that it now appears a majority of people do not want and that Parliament has already voted against in its current form.