British and Canadian experience with the royal prerogative.

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

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.

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The 40th Parliament of Canada was summoned by Governor General Michaelle 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...