The Westminster approach to prorogation, dissolution and fixed date elections.

Author:Hicks, Bruce M.
 
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The Queen has various reserve powers, or personal prerogatives, including prorogation, dissolution and summoning of parliament, and dismissing and appointing a prime minister. The use of these powers is pursuant to unwritten constitutional conventions and are, in theory, the same for all Commonwealth countries that have retained the Queen as head of state. Yet in practice they operate differently--far more democratically--in England, where the Queen is present, than in Canada, where a governor general has been appointed to represent the Queen and manage these powers on Her behalf. This paper examines the British approach, contrasts it with the Canadian, and shows how Canada could improve its democracy by adopting the British practices.

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All of governance in Britain was originally the product of Royal prerogative. In any monarchical system, the King owns all the land, makes all laws, raises armies to defend the people (and conquer new territories so the wealth of the kingdom grows), enforces laws and metes out justice.

Over time, Parliament extinguished many Royal prerogatives of the English King by enacting laws to authorize or limit His power and the activities of His officials. (1) The Crown accepted these limits on its power over time due to a growing belief, beginning with the English Parliament in the 17th century and reaching a legal and popular norm throughout the United Kingdom by the 19th century, that democratic principles must inform all aspects of the constitution.

Most of the Royal prerogatives that Parliament did not extinguish have come to be exercised by ministers, collectively or individually. The reason for this devolution rests on the fact that a minister must be a member of Parliament, where he or she can be held to account for the use of these prerogatives. (2)

There are, however, a number of 'reserve powers', so named because they were held in reserve and not turned over to ministers, the PM or the cabinet in the era of democratization. Also called 'personal prerogatives', they were left in the hands of the Queen because no democratic case could be made for ministers to have control of these powers and a strong case could be made that if the Cabinet or the Prime Minister had unfettered access to these powers he or they could use them to undermine Parliament's ability to represent the people and hold the executive branch to account. After all, Parliament has the only body which the people directly elect, the House of Commons; the PM, the Cabinet, the Senate and the courts are all appointed.

The personal prerogatives include: "prorogation', which ends a session of parliament; 'dissolution', which ends the parliament altogether thus requiring an election; summoning a new 'parliament' or session; and appointing and dismissing a prime minister. Because these powers mediate the relationship between parliament and the government--between the legislative and executive branches--they have been denied to the head of government, the prime minister. That being said, PMs in Canada have long coveted these powers and have occasionally tried, successfully and unsuccessfully, to use them for partisan advantage against Parliament.

In theory the constitutional conventions which govern the use of these powers are identical in each of the Commonwealth countries which still rely on conventions, as they are the personal powers of the Queen. But recent events in Canada have caused many constitutional experts to debate what the conventions are and even to wonder whether the ambiguity surrounding conventions has given the Canadian PM a degree of influence that undermines the democratic principles of responsible government. This concern does not exist in England, where recent developments there have caused politicians to work together to reduce ambiguity and to further democratize their parliamentary government.

This paper looks at the British practices and developments, beginning with the most public of the Royal obligations to Parliament, the reading of the Queen's speeches. While these speeches are written by the government, the traditions surrounding these speeches are inextricably tied to the successful exercise of the reserve powers. They symbolize that parliament has been (i) prorogued or dissolved and an election will be held or that it has been then (ii) summoned and a new PM appointed and a government formed (if appropriate).

Following on from the Queen's speeches, the British examples of how they prorogue and dissolve Parliament is discussed, included the 'wash-up' period of a parliament prior to an election and the recent move to fixed election dates. This is then contrasted with the Canadian experience, concluding with possible lessons Canada can take from Britain.

United Kingdom Conventions

In England there are two 'Queen's speeches' in every session of a parliament. They were both originally delivered by Her Majesty sitting on the Throne in the House of Lords at the Palace of Westminster, home of the British Parliament. In Canada, where the Queen is not present, they came to be known as the 'Speeches from the Throne' and were originally both delivered by the governor general in the federal Senate. While the Queen's representative reads there, they have also been read by the King or Queen when present in Canada.

The first 'Speech from the Throne' opens a session of parliament. In it the Queen or governor general lays out the cause for summoning a parliament. It is a blue print for what the government of the day intends to place before the legislature.

Queen Elizabeth II has personally read the speech from the throne opening sessions of the Canadian Parliament in 1957 and in 1977.

The second 'Queen's Speech' ends a session of parliament. It was the way prorogation is supposed to be accomplished. The speech reported on the legislature's accomplishments and then prorogued the parliament. No proclamation was needed as this speech was sufficient to end the session.

In 1939, it had been agreed that King George VI would read the speech from the throne proroguing the Canadian Parliament, but the legislative agenda was not sufficiently advanced, so he only gave Royal Assent to bills.

Pre-Confederation, a legislative assembly in British North American provinces would run for four years. There would be four sessions in each parliament. A session would run for several months. The day it would end and start would be up to the governor, on the recommendation of the Cabinet, but the variation between lengths of each session was minimal as the practice was to prorogue the session after only a few months to allow legislators to return to their ridings and manage their farms and businesses.

The last time a monarch delivered her own speech at the moment of prorogation in the United Kingdom was Queen Victoria in 1854. Her decision to absent herself from the prorogation ceremony the following year was due to the Peelite Whigs losing the confidence of the Commons over its handling of the Crimean War; and her lack of affection for the Liberal government of Lord Palmerston, who she was forced to make her prime minister. So reluctant to have Palmerston as PM was Victoria that she exhausted all other options for government formation before she called on the former foreign minister. (3)

Since 1855, the Queen has appointed a person by commission under the great seal to read the 'Queen's Speech' at the end of each session. If there are any bills awaiting Royal Assent, a clause is put in the commission authorizing it to be signified. (4) At the end of the speech, the Queen's representative prorogues the U.K. Parliament to the date named in the commission.

It is customary for a parliament to be always on summons, so Parliament must be prorogued to a specific date, even if there is no intention of convening it on that day. Historically, if no date for meeting is selected, it was customary to prorogue it pro forma for 40 days. The period of prorogation could be extended by proclamations for periods of 40 days. The 40 day custom is based on the Magna Carta of King John, which agreed to give a minimum of 40 days' notice for the summoning of Parliament. In 1867, the British Parliament set the prorogation period by which the Queen can extend...

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