Pro forma bills and parliamentary independence from the Crown.

• Author: Hicks, Bruce M.
• Position: Essay

Historically, before the Speech from the Throne may be tabled, let alone debated, in each chamber of Parliament a private members' public bill was introduced 'pro forma' (meaning for form's sake). This tradition goes back 400 years in Britain and like many ancient traditions some of its significance has been forgotten over time. In 2008, the Canadian Government broke with that tradition and introduced government bills summarizing the claim of privilege it identified as being enjoyed by each chamber. This paper reviews the history of 'pro forma' bills, placing them in their original context so as to show that the claim of privileges and rights, all of which were fought for and obtained before the advent of responsible government and are the cornerstones of the legislative branch of government, are more multilayered than is described in these two new bills. It notes that the very act of substituting these new bills is reflective of the increasing domination of the legislative agenda by the Crown. It concludes by recommending that the new format be modified and that MPs and Senators who are not Ministers or Parliamentary Secretaries be selected as movers for the 'pro forma' bill, and that bills be chosen that better embrace the full breadth of rights and privileges claimed by the Commons, the Senate and members of Parliament.

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The following exchange took place when the House of Commons met for the first time following the 2008 election and the Prime Minister moved for leave to introduce Bill C-1, respecting the administration of oaths of office.

Mr. Harper: Mr. Speaker, it is a long-standing parliamentary tradition for the Prime Minister to present pro forma legislation that asserts the right of the House of Commons to present legislation and, following in the practices adopted in some legislatures and in some of our provincial assemblies, I am proposing today to actually table an actual document that asserts that right.

Mr. Goodale: Mr. Speaker, dealing with Bill C-1 in the proceedings at the opening of a Parliament is largely a symbolic gesture, as described in Marleau and Montpetit, to assert Parliament's right to act as it sees fit quite apart from what may or may not be in any Speech from the Throne.

While the process that the Prime Minister is now proposing may not change anything in substance, I would on this occasion like to ask for the assurance of the Prime Minister and, indeed, from the Chair, that this gesture does not change anything in substance.

Mr. Harper: Mr. Speaker, I can certainly give all assurances that this does not change any of our practices. In fact, it merely provides an actual hard copy documentation of our long established practices as is done elsewhere. (1)

Was the Prime Minister correct? Or could the summarization of a set of constitutional rights and privileges that had developed over centuries restrict the very rights and privileges being asserted? It is, after all, a central precept of constitutional law that once you define you limit.

One also cannot escape the irony that the pro forma bill asserting independence from the Crown was being changed by the person who most directly acts for the Crown and who almost singularly manages its prerogatives: the Prime Minister. In the Canadian Senate, simultaneous with this change, an identical change was being made also by a Minister of the very Crown from which that chamber's pro forma bill was equally intended to claim independence.

To fully understand the logic behind the pro forma bill, and thus the relevance, significance and possible consequence of these changes, we must first review the traditional English practice relating to pro forma bills.

The English Background

All matters were at one time Royal prerogative, though the authority of the English King had been challenged from the outset by the nobility and the church, to an even greater extent than occurred with his European cousins. In response, the English King began to convene great assemblies of magnates to give advice and to hear his decisions, a practice which legitimized Royal authority and co-opted competing interests. Concessions were sometimes necessary, and these concessions form the foundation for both the demand and grant of rights to the people and rights to Parliament, beginning with the first Magna Carta. The Tudors were perhaps the most effective at this management of competing interests, and were able to make the 'King-in-Parliament' far more powerful than the 'King' alone. As a result, the Tudor Kings and Queens are considered the most powerful monarchs in English history and the closest England ever had to an absolute monarch ruling by divine right.

By the end of the Tudor line, though, the House of Lords and the House of Commons were becoming self-aware. The break with the Roman Catholic Church under Henry VIII had created fault lines so that, with the Catholic Queen Mary I claiming the throne and marrying Philip II of Spain, claims of freedom of speech in debate, the right to express grievances against the Crown and the right to debate any matter, not just what the Queen told Parliament to deal with, began to emerge. It was in support of these claims (plural) that, during the first Parliament of Elizabeth I in 1558, the introduction of what we would today call a 'private member's public bill' came to be moved before any other matter in the House of Commons, even the matters that had caused Queen Elizabeth to summon Parliament.

This gesture was not simply a claim on the part of the Commons to determine its own priorities, as is now suggested. The Crown had been consistent in its rejection on principle suggestions that Parliament could legislate with respect to governance, which it still claimed to be Royal prerogative, and as for matters the Crown placed before Parliament, it was argued by the Crown that Parliamentary freedom only extended to the right to "say yea or no" and certainly not to raise grievances against the Crown which interpreted them as treasonous attacks on the Queen's person. (2)

In 1604, Parliament again tested the limits of a new King, the first of the Stuart line, who as James VI of Scotland had just become James I of England. During his first Parliament, the Commons not only introduced a bill that had not been sanctioned by the Crown, but it formalized this as a claim of 'right' by adopting a resolution stating "that the first day of sitting in every Parliament, some one bill and no more receiveth a first reading for form sake". (3) These early bills chosen to be moved first were proposed legislation introduced by members of the Commons who hoped that they would be adopted by both chambers of Parliament and assented to by the Crown, even if they knew the likelihood was small and that the very act of introducing this legislation would be seen as defiance. Some of these bills made genuine progress through Parliament.

So while the label pro forma reflects the symbolic act of introducing these bills before all others--for form sake--as a gesture of defiance against the Crown, it should not be confused with a directive (at least in the early days) that these not proceed beyond first reading. These were actual private members' public bills. That being said, the decision to limit this gesture to only one private members' bill on the first day, and to formalize the practice by resolution, was an attempt to placate the Crown, even as it was asserting a claim to rights the Crown was rejecting. This also was intended to insulate the member who had introduced the bill from the King's wrath through the cover of a formal resolution of a united House of Commons.

Throughout this era, Parliament found itself in constant conflict with the King over this right to deal with public legislation, and this repeatedly led to Parliament's prorogation and dissolution. James' son, Charles I, for example, refused to call Parliament for 11 years after his initial experience with this body and, when he finally summoned it in April 1640, he dissolved it three weeks later because it had failed to deal exclusively with the issue of supply which he had laid before it. This is the so-called 'Short Parliament'.

As the Crown was arresting members of Parliament for these 'Acts' of defiance, and not wanting to place any one member of Parliament in direct danger, the practice emerged of choosing a bill for this first symbolic gesture that had already been under consideration in a previous Parliament. By 1661 this practice became routine as it had the additional benefit of supporting the legal claim of Parliamentary continuity; as each Parliament summoned was a new legal entity created by the Crown under its Royal authority, the reintroduction of a previously considered private member's public bill created a claim to the rights asserted by the earlier Parliament, even if that body had been dissolved by an angry King rejecting that right.

The relationship between Parliament, which was emerging as what Montesquieu would later define as the legislative branch, and the Crown, which was then (and is again now) solely interested in the executive branch, was its most adversarial under the Stuarts. The Crown only summoned Parliament because it needed money to operate the executive branch; whereas legislators felt that their primary role was to put grievances and petitions on behalf of the people before the King and to propose laws for better governance (of which the latter consumed a smaller portion of Parliament's agenda than the former). The conflict between Parliament and the Crown over what should be Parliament's duty was summed up by Sir Thomas Less during a debate over the pro forma bill in 1676 when he said "the Kings Speech is usually about Supply and that ought to be the last thing considered here". (4)

The Outlawries Bill and The Vestries Bill

In 1727, the Outlawries Bill was chosen by the British House of Commons as the pro forma bill to be used at...