A Caroline precedent - Macleans.ca
 

A Caroline precedent


 

Opposition proposals to restrict the power to prorogue without Parliament’s consent have met with some skepticism. Critics deride the idea as unconstitutional and unprecedented. Unprecedented, that is, unless you count 369 years of precedent

An Act to prevent inconveniences which may happen by the untimely adjourning proroguing or dissolving of this present Parliament, May 10, 1641. 17 Car. I. cap. 7. Statutes of the Realm, Vol. 103

Whereas great sums of money must of necessity be speedily advanced and provided for the relief of His Majesty’s army and people in the northern parts of this realm, and for preventing the imminent danger it is in, and for supply of other His Majesty’s present and urgent occasions, which cannot be so timely effected as is requisite without credit for raising the laid monies; which credit cannot be obtained until such obstacles be first removed as are occasioned by fears, jealousies and apprehensions of divers His Majesty’s loyal subjects, that this present Parliament may be adjourned, prorogued, or dissolved, before justice shall be duly executed upon delinquents, public grievances redressed, a firm peace between the two nations of England and Scotland concluded, and before sufficient provision be made for the re-payment of the said monies so to be raised; all which the Commons in this present Parliament assembled, having duly considered, do therefore most humbly beseech your Majesty that it may be declared and enacted.

And be it declared and enacted by the King, our Sovereign Lord, with the assent of the Lords and Commons in this present Parliament assembled, and by the authority of the same, that this present Parliament now assembled shall not be dissolved unless it be by Act of Parliament to be passed for that purpose; nor shall be, at any time or times, during the continuance thereof, prorogued or adjourned, unless it be by Act of Parliament to be likewise passed for that purpose; and that the House of Peers shall not at any time or times during this present Parliament be adjourned, unless it be by themselves or by their own order; and in like manner, that the House of Commons shall not, at any time or times, during this present Parliament, be adjourned, unless it be by themselves or by their own order; and that all and every thing or things whatsoever done, or to be done for the adjournment, proroguing, or dissolving of this present Parliament, contrary to this Act, shall be utterly void and of none effect.


 

A Caroline precedent

  1. Whoa, Finnegan's Wake, much?

    Point taken, though, "That this present Parliament now assembled shall not be dissolved unlesse it be by Act of Parliament to be passed for that purpose"

  2. That was enacted of course as a briliant plot to lay the ground work for the diasterous coalition of 1642.

  3. I think the point is that such a law would have no teeth in the absence of a constitutional amendment, not that it can't or hasn't been done. (Rather like fixed election dates.)

  4. Perhaps the Prime Minister should consider convening the provincial Premiers to discuss a new constitutional accord dealing with such issues as the senate, powers of the PM, etc.

    That, would change the channel.

  5. We probably only need a leash on this particular PM, anyway. :)

    • That's what they said about Chretien (and before him, Mulroney, and Trudeau, and – well, MAYBE not Pearson – and the Chief, and King, and … well, you get the idea. And so it goes, this thing of ours…

  6. I don't want someone who's gone on the record calling Canada a "second tier socialist country" leading the charge on Constitutional Change.

    But I agree, it would sure change the channel.

  7. It would seem I share Coyne's flair for satire. :)

  8. Also, as per the Triennial Act, it could reconvene itself:

    Be it enacted by the King's Most Excellent Majesty, with the consent of the Lord's spiritual and temporal, and the Commons in this present Parliament assembled, that the said laws and statutes be from henceforth duly kept and observed; and your Majesty's loyal and obedient subjects, in this present Parliament now assembled, do humbly pray that it be enacted: and be it enacted accordingly, by the authority of this present Parliament, that in case there be not a Parliament summoned by writ under the Great Seal of England, and assembled and held before the 10th of September, which shall be in the third year next after the last day of the last meeting and sitting in this present Parliament, the beginning of the first year to be accounted from the said last day of the last meeting and sitting in Parliament; and so from time to time, and in all times hereafter, if there shall not be a Parliament assembled and held before the 10th day of September, which shall be in the third year next after the last day of the last meeting and sitting in Parliament before the time assembled and held; the beginning of the first year to be accounted from the said last day of the last meeting and sitting in Parliament; that then in every such case as aforesaid, the Parliament shall assemble and be held in the usual place at Westminster, in such manner, and by such means only, as is hereafter in this present Act declared and enacted, and not otherwise, on the second Monday, which shall be in the month of November, then next ensuing . . .

    Tell me, somebody, that the Opposition is reading into this stuff. Or let us have Mr. Coyne as Speaker.

    • Coyne wouldn't make a good speaker as it would go something like this

      speaker (Coyne): Member for backa55water Nova Scotia

      Mr Hack: When is the Prime Minister going take action on this file, is he lying or is he incompetent!

      members: hear hear 9harumph harumph)

      Speaker: Oh Puhleeeese, no substance…anyway…the right honorable Prime Minister

      PM: Blah Blah Blah Blah, and that is the list of things the opposition members party didnt do when they wehre in office

      Members: Arf Arf

      Speaker: Bull5h1t, oh excuse me I sneezed….

  9. So the complaint isnt actually prorogument but the length of time that Parliament is Prorogued. Remember any government now has to come back with a Throne Speech (agenda) and a budget to back that up, Both of which present the classic and core cases of confidence.

    So in the UK, I understand the Prorogue in October annually for a new throne speech 3 weeks later. Seems reasonable to me. Once the time limit Parliament is shortened, really whats left of the objections. Tempest in a teapot…but badly played by the Cons.

  10. Poilievre, is that you?

  11. "An Act to prevent inconveniences which may happen by the untimely adjourning proroguing or dissolving of this present Parliament, May 10, 1641. 17 Car. I. cap. 7. Statutes of the Realm, Vol. 103"

    What are the chances Ignatieff's great, great, great…grandpappy wrote it? One thing's for sure, Shakespeare didn't get anywhere near it.

  12. I could be wrong, but I thought Ignatieff's ancestry was Russian.

    And you're right, Shakespeare was long dead before this was made law. This looks more like Restoration English (though it predates the era by about 15 years)

  13. Oh, just come out with it.
    The LibDippers want to get rid of the only thing between them and power, prorogation.

    Prorogation stopped the Coalition of Losers from seizing govt,
    and prorogation paved the way for a Conservative majority in the Senate.
    And yah all hate it, and Harper.

  14. "Remember any government now has to come back with a Throne Speech"

    As a result of a prorogue? Nope. However, the house must consent for all government bills to be resumed where they left off (but even that's not necessarily a confidence issue).

  15. Does anyone other than a New Democrat truly believe that the Dec 2008 prorogation was a bad thing?

    Certainly not Michael Ignatieff, who was a major beneficiary of the Dec 2008 move, since Harper saved his party from extinction..

    The Liberals have no intention of introducing new rules for prorogation. They are simply milking a good thing when they see one. That's good politics, but not necessarily a sign of change.

    • It's that kind of cynicism that made the facebook protest necessary.

    • Depends upon what you mean by "bad thing".

      I think one can believe that the coalition would have been "bad" (heck one can even believe that the coalition would have been "undemocratic") and still simultaneously believe that a Prime Minister proroguing Parliament specifically and explicitly to avoid facing a vote of confidence on the floor of the House of Commons that his government was about to lose, is worse.

      • And yet they faced a vote a few weeks later and won. Without floor crossing…..the prorogation was not a bad thing, it left all options on the table and left time for things to reveal themselves politically, ie the public support for the coalition just wasnt there……so hard to argue any damage was done. My preference was still an election, given how fluid the situation was, the people's judgement is never a bad thing.

    • The 2008 prorogation was a horrible thing… sure it was the least objectionable outcome of the mess that started with an Economic Statement designed to buy the Conservative power and then confounded by a ill-conceived coalition. No doubt amputations can save lives, but amputations are still horrible things.

  16. But the Opposition was hammering away on the question of whether Peter Mackay misled the House. It's not just the prorogation, it's what prorogation is being used to avoid. We cannot have Ministers of the Crown lying to the House (if that's what Mackay did): if there's one thing that accountability depends on, it's the idea that people are obliged to tell the truth.

  17. What? That doesn't make a lick of sense.

    There's about 10 percentage points, an election, and 15 million Canadians standing between the Liberals and "power", first of all.

    Prorogation didn't stop the coalition from "seizing" government. Not being able to convince the GG that the coalition had the support of the House (and of Canadians) did.

    And Harper doesn't need to prorogue in order to appoint Senators. He has that power whether the lights are on in the House or not.

    • And Harper doesn't need to prorogue in order to appoint Senators. He has that power whether the lights are on in the House or not.

      But to change the face of the Liberal led Senate Committee's with the new Senate appointments giving the Conservatives a majority DOES require prorogation! But I guess you all KNEW THAT!

  18. I'll just come out with it:

    Parliament is, in our system of governance, the sole source of a mandate to govern.
    Governments are formed with the consent of our Parliament of 308 democratically elected MPs.
    They may also revoke their consent.
    That Harper and his ilk have ditched 20 years of their own political beliefs … that Parliament is supreme, not the parties, not the PM, not the PMO … as well as centuries of Westminster tradition, is indicative of their lack of virtue.

    • Why does Wison hate our Parliament?

  19. I believe they do….start of a new session means new throne speech…..perhaps there is some loophole that means they do not. However, I believe a throne Speech is what is done, and that means a confidence motion. Once again I think that means the issue isnt Prorogation but the length of time.

    That being said, sometimes a couple of weeks or less is all a government needs to manouver, see Paul martin bringing the MInister of Complex files over after losing a vote in the House. I dont think you can ultimately eliminate politics from the political arena

    • I think you are right about the Throne Speech and would add to your length of time statement re prorogation that the timing was also an issue.

  20. But once again, isnt this about the time passed. If the house was reconstituted 3 weeks later Mackay would still have to answer questions. And as I indicated Prorougation means some set confidence votes, generally a dangerous time for a minority governments. Mackay wouldnt be allowed to run, assuming he needed to.

    I am just trying to identify the problem, largely because I remain suspicious of monkeying around with things like Fixed election dates and Opposition votes on what are traditionally crown issues. Unintended consequences etc etc. Generally i think the UK does this better than we do, and we could do worse by following their example. Put too much power in hands of the oppsoition and it ceases to be about tools for pricipled delay and scrutiny but becomes the seperation of power and responsibility.

    So solving the time of Prorogation is more important than stopping Proragtion. It involves broader issues, role of senators, committees, parliamentary officers, etc. Changing things based on the last perceived offence is usually unwise, but this is just part of the larger for ongoing parliamentary reform..

  21. Some of you here may recall a RadCan documentary on the 1995 referendum. Seeing that the polls were going bad for the NO side, Preston Manning and some Liberals met and agreed that in the event of a win by the separatists a motion would be tabled in parliament stating that the House had lost confidence in the Member of Parliament for Shawinigan. Hence, Chrétien would have been fired an a Lib MP from outside of Quebec would have become prime minister.

    Should a PM break rules of prorogation adopted by parliament, he could be found in contempt and parliament could vote on firing the prime minister without triggering an election.

    • 1. Involving all of Parliament would not have been the most efficient (if even possible) way of going about removing Chretien in these circumstances (as various comments indicate). It would have been far more possible and expedient for the Liberal Party to hold an emergency leadership vote and remove Chretien and leader and install a new MP as Leader who would then have become Prime Minister.
      2. Its not really possible to use something that didn't happen as a precedent for anything, not least because…
      2.A. if the Yes side had won, this would have only been one of dozens of constitution/legal/parliamenty crises that would have been precipitated.

  22. About time to prorogue Milliken – permanently?

  23. I see your point, and like you I'm reluctant to meddle with tradition. Nevertheless, wouldn't you say that accountability delayed is, in some measure, accountability denied? In the old days, say c. 1641, accountability (first demanded by the Long Parliament, incidentally) was immediate, in that the confidence of the House was very much the confidence of individual members; nowadays, what with the media, the Opposition demands accountability not only to itself but to the whole of the nation. (The Opposition is thus constituted by individual MP's, who represent their constituents, but collectively has a further constitutional function as Her Majesty's Loyal Opposition.) So when Opposition questioning is delayed via prorogation, the public's short attention span is exploited and the Opposition is prevented from discharging its duty as the mechanism for accountability to the public.

  24. I keep remembering Dot's prophecy, here at Maclean's, that the reelection of Milliken would spell disaster. Dot is rarely wrong.

  25. LynnTO – why are you expecting sense from wilson? Surely, you have been posting here long enough to recognize conbot-babble?
    wilson never could count – the losers add up to 65% – his mob barely 35%. the fact that the Opposition is divided into four is what makes his G*d into a dictator. Once they get it – that the enemy of their enemy is their friend – it will be a breeze…
    Treat that with the contempt that your leader uses wilson, and it will come back to bite your ugly rear!

    • This four-faced opposition that you speak off is difficult for me to comprehend how they would be compatible. I can see some policy similarities between the NDP, the Liberals, and the Greens but I`m assuming the fourth face is the Bloc. How is the vision of the Bloc Quebecois similar to the other 3 parties in your coalition ?

  26. Interesting bit of history! I'm not sure it would work quite like that, though. As I understand it, you can't lose confidence in ministers (or a Prime Minister) selectively: the Cabinet stands or falls as one, as per the doctrine of collective responsibility. In the event of a vote of non-confidence in the Government as a whole, conceivably Harper could resign as PM and the GG could appoint a new Prime Minister; but I think that could only happen without Harper's agreement in the early days of a new Parliament: otherwise the GG would be bound to follow Harper's advice, which would presumably be to dissolve Parliament.

  27. I like it. Maybe we could have Coyne control Milliken remotely, like in Avatar.

  28. I don't think there's any question that parliament can limit the Prime Minister's power to advise prorogation–parliaments pass laws that are binding on the Prime Minister everyday. The question I'm waiting for someone to address is whether the House of Commons can do that just changing its standing orders?

    The Standing Orders of the House of Commons govern the operations of the House of Commons; they are not laws. How can they be used to bind the Prime Minister in his job outside the House?

    (On issues related to matters of confidence, I can see standing orders playing a large role–as there the question at hand is whether the House has confidence in the government and the House can certain dictate the manner in which it expresses itself on that question–but that is not the case with prorogation.)

    • While the press release part proper didn't say it, apparently the backgrounder had this addition: "The Liberal Party of Canada will present Motions in the House of Commons to amend the Standing Orders of the House and, if necessary, propose legislation to achieve the following:" (then all the points from the press release).

      I can only assume they haven't gotten a legal opinion (as of the press release) as to whether changes to the standing orders would be sufficient.

  29. Coyne, keep on digging. I'm sure if you go back far enough, you may be able to find authority for your position in cave paintings somewhere.

  30. I was taking a liberty with the Ignatieff ancestry yes.Merely a little teasing of the man with a famous lineage. And my Shakespeare comment was a little jab at the language. But judging by the thumbs down [ not you ladies i'm sure] someone needs to lighten up. A lame joke maybe. But nevertheless a joke.

    • I thumbed up you, on each post, to make up for it. And since we can only vote once, for sure it wasn't me!

      • You're a sweetheart.

  31. It's been a while, and it may not have been a confidence vote per se, but there was an agreement to vote on the firing of Chrétien in the event of a separatist win. With Chrétien out of the way, the ministers ould have been tossed out.

    The documentary was called Point de rupture and was aired in 2005 on Radio-Canada. It was also presented in English (Breaking Point)

    Liberal ministers from outside Québec, including Brian Tobin who was interviewed in the documentary, had met (in Hull!) and concluded that in the event of a separatist victory, Quebec ministers should not negotiate on behalf of Canada.

    • If Chretien didnt resign on his own his position would have been untentable. You likely would have seen a reshuffling of the house, in that Lib Mp's either would have joined Manning's Party OR a new party would have formed.

      I just find it funny that just like the NDP Lib coalition talks the Libs first point is, yes and the PM will come from the Liberal caucus. They are nothing if not consistent.

  32. I meant to write that with Chrétien out of the way, the Quebec ministers would have been tossed out.

  33. Chretien had a majority. But I take your point.

  34. Are you suggesting if this precendent had suggested the opposite, someone like Taylor wouldn't already have it splashed all over his blog? Not that i'm equating AC's credibility with STs.

  35. *Sigh* I am among the ones who argued against feeding the trolls, but I can't resist the urge to attempt to counter them myself.

    I don't really have a leader, my post history will probably indicate I'm rather all over the place, ideologically speaking.

  36. The Act refers to the “present” Parliament, i.e. the one known in English history as the Long Parliament.

    The Long Parliament is the name of the English Parliament called by Charles I, on 3 November 1640, following the Bishops’ Wars. It received its name from the fact that through an Act of Parliament, it could only be dissolved with the agreement of the members,and those members did not agree to its dissolution until after the English Civil War and at the end of Interregnum in 1660. This was to prevent the King from disolving or proroguing. The King reacted of course by marching into the Chamber with his troops and taking control from the Speakers Chair on 4 January 1642 in order to arrest 5 MPs. The MPs were not in the House causing the King to make his famous remark to the Speaker “I see the birds have flown.”

    The Long Parliamnent sat from 1640 until 1649, when it was purged, by Oliver Cromwell’s New Model Army, of those who were not sympathetic to the Army’s concerns. Those members who remained after the Army’s purge became known as the Rump Parliament.

    The Long Parliament is unique in parliamentary history and hardly sets a 369 year precedent.

    • Another reason it doesn't set a 369 year precedent is that it is no longer on the books.

      It would be more accurate to describe it as a law that has been replaced by 360 years of precedents that along the way crystallized into the convention that we now have, and have had, since we were given a constitution similar in principle to that of the UK

    • On the other hand, Orval, innovations in Parliamentary custom and procedure during the Civil Wars and their aftermath very much set the stage for modern Parliamentary democracy, and there's an argument to be made that this Act was the turning point. Up to this point, Parliament truly did serve at the Crown's pleasure, to be called – and dismissed – as suited the king. Parliament's refusal to either (a) pass the Crown's revenue requests or (b) go away triggered the constitutional crisis that led directly to the English Civil War. As you say, the Long Parliament soured with the ascent of Cromwell. But it was (I believe) a reconstituted Long Parliament, rather than the Rump, that cleared the way for the Restoration in the early 1660s; and despite the rejection of quasi-republican tyranny and the re-embrace of monarchism, the principle of Parliamentary supremacy had been established. Parliament again asserted its power as against the executive in the Glorious Revolution; the Crown under William of Orange was a much weaker institution relative to the Crown under Charles I.

      The seventeenth century was a watershed for the cause of representative government, and it would be a great oversimplification to say that the highlighted Act was the key historical occurrence. But It was certainly _a_ key historical occurrence, and I think Andrew can fairly cite it as a precedent of at least some lasting authority.

      (My own quibble is that the highlighted Act was designed to correct an imbalance between Parliament and the Crown – that is, legislature and (separate) executive – whereas the current fracas is at least partly the result of the combination of legislative and executive power. Stripping the executive of the power to prorogue, and vesting it in a Parliamentary majority, will have effect in a minority Parliament – but will lose its meaning when the executive power is held by a majority leader in Commons.)

      • I always understood the Glorious Revolution in 1688 to be of far greater importance, historically speaking, in permanently enshrining the principle of Parliamentary supremacy.

        BTW an interesting take on its significance, seen through the lens of the Anglo-French rivalry, is explained in this book, which I highly recommend for the serious Anglophile:

        http://www.guardian.co.uk/books/2006/mar/26/histo

  37. Loraine, they could take action to reprimand Chretien, including rebuking him by making clear that they saw him as incompetent, but the Westminster system does not allow for firing individual ministers.

    • No, but I expect the Liberal bylaws have/had something in there that would have done the trick.

      • Jenn. she was talking about MPs in Parliament… the Lib bylaws would not have applied.

        But, as I am sure you will find in your new endeavor to become a (more?) active partisan, most parties don't have strong recall mechanisms for their leaders. Party leader have incredible power in Canada these days and there are few party mechanisms to reign them in.

  38. The lesser of evils apparently. Not that i buy it. It may not have been strictly legitimate democracitcally. But the coalition would still have been legitimate constitutionally. The voters would have had their say in due course. But i take your point. Harper's not off the hook either way in my book. He violated both the spirit and the letter of the law.

  39. LynnTO…it was a joke. Nothing more, nothing less. Why on earth is any one bothered? Thanks for the info though…

  40. I wasn't meaning to make a partisan point. Just trying to wind Coyne up re his obsession with this topic. But having said that, as someone who studied the English Civil War in university, I think orval's comments below are important to note, just for historical context.

    Personally, for the record, I don't agree with Harper's decision to prorogue.

    Further on the historical angle, I'm sure the hard-core Liberal partisans think that the fate of Charles I would be fitting for Harper. Maybe someone has already posted a pictoral representation of that fateful event on the LPC website . . .

    • Sorry to spoil your Coyne windup – which i heartily approve of. I hope no -one is carrying out an online reenactment…partisanship is ok, but rank tasteless partisanship is contemptible.

  41. S&M I think you are right, and there may be other ways other than outright firing that the House of Commons can punish a Minister other than "firing" him or her. What about a vote censuring them for their behaviour? Or a vote to reduce to $1 their department's budget? Refusing to pass any legislation they propose? Why go nuclear when you can kill by a thousand cuts?

  42. lol. reduce budget their department's budget to $1!

    i totally agree with your point: creativity is required. and a fierce opposition. I listened to MLK jr's 1968 "I've Been to the Mountaintop" speech today while i was working. While the issues at hand don't serve a useful comparison, but his resistance applied both. he rejected the obvious (i.e., violence) and he took on the fights he knew he would lose. he used tough language, without yelling or cursing at the other team. he drew lines in the sand and propelled all his energy to opposing their breaches! we need more of this in Canadian politics.

  43. The above Act only applied to "this present Parliament now assembled" in 1641, not to all future Parliaments.

  44. Not bothered. Caught the joke. Decided to respond like the dork that I am.

    • that's ok, i believe it's a dork friendly blog…at least i'm here.

  45. Has Parliament, either here or in another Westminster system, ever attempted to legislate its own duration and been rebuffed by the Crown? If not, I don't see what "precedents" apply.

  46. Either that or an Act of Attainder : )

  47. The so-called "Long Parliament" received its name from this very Act. Prorogation or Dissolution could only be accomplished with the agreement of the members, and indeed those members did not agree to its dissolution until after the Civil War and Inter-regnum, that is until1660.
    So, if we follow the Opposition's lead in the current prorogation debate and Mr Coyne's may we then look forward (so joyfully) to this Parliament lasting for another 19 years? No doubt Iggy will appoint himself Lord Protector somewhere along the way. Now that is democracy in action!!

  48. "of the worst kind" no less.

  49. I was just watching the Jan. 5 Coyne vs. Wells where you discussed the need for such rules and encouraged people to not accept the abuse of prorogation. Well, we didn't, and here we are with concrete proposals and opposition parties willing to implement them. This is, actually, democracy in action: a grassroots movement motivating politicians to make changes. 64 percent in the polls, 218,000 members on Facebook, 25,000 protestors on the streets, and countless e-mails, letters, phone calls, blogs, and comments. And yet the media and the pundits seem to be glossing over this. They kept saying we would have to put feet on the street and top the 9,600 of the anti-coalitions rallies to prove ourselves. And even though we passed that test with flying colours and have seen very real results in the form of these new proposed rules for prorogation, many refuse to acknowledge this–perhaps because they expressed skepticism about our movement before and are unwilling to revise their opinion. I know however that you are not like that. Can we not get an atta-boy?

  50. to Loyal Subject:

    Just because something has a 369-year-old precedent doesn't mean everything magically time travels back to the way things were 369 years ago. Of course Parliament isn't gong to sit for 19 years and no one's going to declare themselves Lord Protector. It just means there is a precedent that legitimizing new (modern) rules to ensure prorogation will no longer be abused. It doesn't mean all our cars turn into horse-drawn carriages.

  51. Since 1848 in Canada no government has defied an Order of Parliament. I don't recall any such successful defiance of Parliament since 1649 in the UK, when the matter was decided (Jan 4 Declaration of Popular Sovereignty & Parliamentary Supremacy for my part, others may prefer Charles I's convictions of the 25th or 27th, or execution of the 30th). That fight came about because the fundamental question was of legitimacy, royal vs. popular-parliamentary. Exceptional times call for exceptional measures. It was because of Charles' intransigence that the Long Parliament came about, and denied any outside power could dissolve or PROROGUE it. Consequently, conventions grew up over use of such prorogations. Since Harper seems determined to break those conventions, breaking our law, we are again in exceptional times, needing exceptional measures.

  52. It is now 46 days & counting since the Govt declared it would defy the House Order. 19 days after declaring it would defy House, Harper prorogued Parliament. The Harper Precedent has been set, the Parliamentary Reply must bury it, if we are to remain a democracy. Since the executive has now demonstrated its willingness to ignore convention, unfortunately, a new set of rules must be written down.

  53. Orders is a better term, as in Standing Orders. And that's why Lib proposal is best. For the Crown to ignore them would delegitimise the Crown: she could and would not, unless she was some republican plant, hoping to force Canada to become a republic (even then, Parliament could appeal to Crown in UK to replace her disloyal GG in Canada before passing into republicanism). Parliament has the power, it has had it since 1641, since Parliament went on to win and its version is accepted. We don't need a "constitutional amendment", in the Franco-American sense. Our constitution is a mix of British "unwritten" constitution & Franco-American "written" (although a lot of British is written, and Fr-USA unwritten, in fact). When Parliament reiterates its supremacy and rewrites or makes explicit the rules, that is indeed as much a constitutional amendment as changing the 1867 & 1982 constitutional acts. Parliament has all power it needs. It must have the clarity & determination to proceed.

  54. " No doubt Iggy will appoint himself Lord Protector somewhere along the way. Now that is democracy in action!!"

    I doubt it. I just can't see Ignatieff as the roundhead type. Now Harper as Cromwell…now we're talking.:)

  55. Only on one side.

  56. Like many things there is a point at which the invisible line is crossed, but the line is nonetheless invisible. Which is why I prefer priciple based regulation to hard and fast laws. While I agree with in the abstract it doesnt apply on a sufficiently short time frame, depending on the issue. One hour might too much in some cases (although hard to think of one, while 4 weeks is probably not too long. Of course the government regularly recesses for holidays etc that often exceed a month, so questioning doesnt happen.

    I admit my bias, that I think that this is an issue it is not deserving of the hand wringing it is getting. The most extreme Canadian example I am aware of was Ralph Klein not facing his legislature (was it like 2 opposition members) for almost a year. throne speech, bidget, vote then prorogue. That was bad! But Albertans survived. So this too shall pass, as long as stuff is getting done. Just the opposition has to ensure they do not overplay, since they of course have a couple of non confidence votes coming and if its that bad……well they will only have themselves to blame.

    • One observation I would make is that from what I can tell, their adjournments for summer, Christmas, and otherwise are all on a calendar. In other words, they are predictable. Arbitrary prorogations are by nature unpredictable. So all sides know, leading up to summer, what the timeframe is they have to play with. Using prorogation as a privileged timeout when accountability is getting hot is a cynical use of the rules, it seems.

      • And you have a point. Which is why I point to the UK model where even the end of session (prorogation) is known by all parties. However, I still like the flexibility inherent with crown powers, and the advice to exercise those powers is ultimately a political question that should be judged by the voters, in my way of thinking. I think the oppo parties did the appropriate thing is leading (following their groups) on this file….yet I think they are in danger of over playing their hand, both for their own future and for misplacing priorities. The have opened the wound but this wont be the one to do the government in, particularly if they raise the level of rhetoric too high. They have options for traditional defeat of the government coming within 60 to 80 days (throne and budget votes). We have seen this movie played out before, one hopes they learned something.

        • I don't disagree with aything you say. I do believe that in instances like this the political price is what should matter. That behooves politicians and electors alike to be more aware of and informed on the niceties of our form of government. I have learned an awful lot searching for answers on the Hosue of COmmons website – they have some really useful books on parliamentary procedure there – and otherwise reading what others have to say. In the end, the governemnt has only done something wrong if we so judge.

          • Now this leads to one more interesting scenario. While the Crown defers to the advice of its First Minister it says nowhere that the Crown must always follow the advice. One exception would be if the Crown felt that it was being brought into disrepute by follwoing the advice. So lets assume the PM advises prorgation 4 months from now….in my mind the GG would be reasonable toreject the advice and call an election. The key point being that it is time for the people to express an opinion…it would still cause a controversy but I think she would be consistent with that action….the point being the Crown will act to preserve itself and its powers, and abuse of those powers ultimately bring it in to disrepute. The system will work, we dont need new laws.

          • Now you're too deep into unwritten conventions and written law for me to have an opinion. Despite my concern about her decision a year ago, I believe it was the only one she could reach at that time. It was the least intrusive, determinitive at her disposal. She left it to the House of Commons to judge. Had she decided against the advice, she would have triggered the Prime Minister's resignation almost automatically, rather than letting the House make its own determination, while allowing the prorogation left that decision in its hands.

            How that would apply at this time, in the circumstances you describe is above my head.

          • Oh its purely speculative, but consistent with the GG's decision last year. Essentially the crown is to avoid politics, hence the reason for a single advisor. The problem coes if there is a percption that the perogatives are being abused and the crown is being dragged into something. In the scenario I described you the PM may go one bridge too far and really provoke a public reaction. This puts the GG in a vice between convention and the larger item of preventing the crown powers from being brought into disrepute. It would depend completely on the public reaction. My point is that the GG ultimately is there to preserve the system, so her job then would be to seek refuge in the peoples opinion. I still believe that had Harper sought disolution last year she would have been wise to grant it, not exercising her judgement but seeking the peoples was the safest course….another non standard prorogue request might, repeat might, be the bridge too far. Once again there is lots of room within the system for resolution….it is quite robust, more constraints add little.

          • Interesting. Just months following an election in full knowledge that a potential governing alternative existed in the House? Maybe now, almost a year and a half into the current parliament, but at that point she should at least see if there was a possibility of the new group managing to govern, no? The point in time and overall context really is subjective, isn't it? Hard to be definitive. Anyway, interesting line of chat, thanks.

    • While it's true that we do survive, the problem is that we survive every little cut to the democratic capacity of Parliament, until finally, Parliament's role becomes at best ceremonial. In large part, this has been an abrogation on the part of MPs, but it also has to do with the increasingly "presidential" role of the Prime Minister. While there has been some creep in this direction in the UK, over there, calling a PM "presidential" is still an insult. All in all, British MPs retain a good deal more independence both inside and outside caucus.

      I'd be happy if the prorogation issue finally woke Canadians up to the fact that we've spent the last forty years on a very slippery slope, our democratic institutions being undermined by a steady centralization of power. The PM's unique position as the principle adviser of the Crown has ceased to be a privilege, and is now simply a given. The Crown is still bound by its end of the deal worked out in large part after Charles II was thrown out, but the Government, having to some degree become detached from Parliament, is no longer keeping up its end of the bargain.

      At the end of the day, the solution to this, if there is any solution at all, is going to be MPs feeling sufficient pressure from their constituents, taking back what is supposed to be there's. They have become a little to addicted to the perks, like parties doling out money during elections for signs and advertising, with the understanding that their as good as bought when they get to Ottawa. MPs need to get back the sense of power that their forbearers did during the tumultuous showdowns between the Crown and Parliament in the 17th century.

      • MP's….yes….you raise a point that isnt discussed all that often in this. Is the problem at the level everyone is discussing or is the problem at the party structure level. The fact that party leaders have so much power over individual MP's is part of the problem, if not the majority of the problem.

        You can solve any one of a number of problems at the Parliamentary level, putting in new rules about prorogation etc but it doesnt change the issue that party leaders hold enormous sway over their MP's if they choose to use it. Not sure how the greater independence is maintained in the UK but there is something to be said for MP's electing leaders as opposed to the party members, and being able to depose them, a la Thatcher

  57. The Ignatieff proposals are absurd on so many levels it is hard to understand how AC and “experts” can give them any credence.

    Because prorogation involves Parliament, i.e. the Senate and the House of Commons, how can what the House want bind the Senate. Suppose the House votes to allow prorogation but the Senate refuses consent? What happens then?

    Prorogation and dissolution are, within the constitutional parameters, the Crown’s prerogative. The difference between 1640 when the Monarch was absolute and 2010 is that convention dictates that the Crown does so only on the advice of the PM. The PM can only give this advise if he/she commands the confidence of the House.

    If the PM has a majority government, he/she will always have House consent. If it is a minority, and the House refuses its consent, then the PM no longer commands the confidence of the House and must resign, triggering an election.

    “Reforms” as suggested by Liberals are illogical and absurd. Leaving aside the need for consent of the Senate, if the House doesn’t want to be prorogued, it’s only option is to vote non-confidence .

    • Hear, hear.

    • That's great, orval, except for a couple of things. First of all, what the House does binds the Senate all the time, currently. That's because the House is elected and the Senate is not, so the elected representatives trump the appointed. That would probably have to change if Senators become elected.

      The other part you've got mostly correct–with the exception of this little piece. "and the House refuses its consent," Since the Prime Minister didn't ask for the consent of the House, and since the House had no idea he wanted to prorogue, they were not given the opportunity to refuse its consent–which is exactly the part the Liberal proposals are designed to put in place.

      • Exactly. If the Ignatieff proposal was in place, and the PM had to have the House’s a priori consent before providing his/her adviced to the GG, and if the House then refused to give its consent, then the PM has lost a confidence vote and he/she must resign. Parliament is then dissolved by GG upon being imformed by the PM that he/she has lost the confidence of the House, and elections are called.

        The House of Commons does not bind the Upper Chamber .The Senate has its own Speaker and Rules, when and how to adjourn, etc. The H of C does not dictate or command the Senate. Laws are made by Parlaiment (passage in both House of Commons and Senate and then Royal Assent), not the elected House of Commons alone. So law is binding on all, including the Crown, except when expressly exempted in law.

        This is the key difference between adjournment and prorogation. Each of the Houses of Parliament can decide for its self when to adjourn, resume, etc. Only the Crown can prorogue Parfliament – the ending of the Parliamentary session which binds both Houses. The system can work only if the Crown can prorogue. Limitations on prorogation passed only in the House of Commons can bind the Commons, but not the Senate and certainly not the Crown.

        Again, if the House wishes to deny prorogation, then only option iks to defeat the government via non-confidence vote.

        • Agreed that what the House says is non-binding and prorogation is the Crown's prerogative (say that five times fast!); but that doesn't mean that the will of the House of Commons, our only elected body, is irrelevant. In other respects, for instance the requirement that the Government have the confidence of the House, the Crown is obliged to take the will of the House extremely seriously. Currently, the Crown takes advice on prorogation only from the PM, since the PM is the Crown's sole constitutional advisor; but the scope of what matters the Crown accepts constitutional advice on is not set in stone.

          What is proposed here is that the Crown exercise its power of prorogation in keeping with the will of the House, just as the Crown exercises its power of appointment to the Privy Council in keeping with the will of the House. The two matters are related. The abuse of prorogation we have seen recently has served to prevent the will of the House from being determined: spectacularly so in 2008, and potentially so in 2009. It has undermined the vital doctrine of the Government's accountability to the House, which is main way, along with actual confidence votes, that the Crown acknowledges that it will not appoint a Government contrary to the will of the House. So the argument here is that prorogation should no longer be considered, by the Crown, as a matter on which it will unconditionally accept the PM's constitutional Advice, so as to keep safe the fundamental doctrine of the supremacy of Parliament — the foundation of our representative democracy.

          • Correct.

      • Jenn_, the House voted to grant supply to the government for the remainder of the fiscal year, in the fall session. As such, there was no pecuniary imperative left for the government to pursue. The opposition voted confidence in the government's ways and means motions, their budget implementation bills, concurred in supplementary estimates, and passed the related supply (appropriation) bills.

        Seeing as in our system, the government must seek annual consent for its budgetary policy, its estimates and appropriations, Harper would not have been allowed to prorogue for much longer than he has done. Interim supply for the next fiscal year must be concurred in (or not) by March 26th of this year.

        Lastly, the House doesn't bind the Senate on anything. The only thing is that the House must initiate money bills, and while it's possible that the Senate could defeat one, if the Senate defeated a supply bill, we would instantly be in a constitutional crisis.

    • The Senate is irrelevant and has no legitimacy to do more than slightly amend or refine legislation passed by the Commons (not the "House"). Further, the PM does not govern by virtue of any kind of affirmative vote of confidence from the Commons, but rather in the absence of a successful vote of non-confidence. Especially in a minority situation, it's deeply questionable whether it is at all legitimate for the PM to exercise the Crown prerogative in order (1) to avoid certain votes of non-confidence (as in Dec. 2008) or (2) to shut down legitimately convened committee inquiries into government policy and, relatedly, to avoid consenting to assertions of parliamentary privilege.

      Incidentally, you have the outcome of a vote of non-confidence wrong. If a PM resigns, the GG must call on another leader to form a government. If the PM instead opts to ask for dissolution, he does not resign, and only does so in the event of a clear electoral defeat. Others have already pointed out the flaw in your argument recording a vote of non-confidence in the face of prorogation.

      • Saying the Senate is irrelevant is one thing, but the reality is another. The Senate is an integral component of Parliament. If prorogation requires the consent of Parliament, then both the House of Commons and the Senate must give their consent. Say one party has a majority in the House of Commons, and the opposition party has a majority in the Senate. If the PM advises the GG that he has the consent of the Commons to request prorogation, but not that of the Senate, what is the Crown to do? Custom and practice would say the GG will follow the PM's advice, but under the Liberal "reforms" the consent of Parliament is a priori required to give that advice. Thus the PM would be prevented from requesting prorogation, even if the House of Commons consents.

        Here you get the absurd result that a majority government falls because of non-confidence in the Senate.

        Ignatieff would have been wise to have just left the whole prorogation issue alone, and not make himself look silly and confused with half-baked non-solutions to a non-existent problem, all for no political result (Parliament is not going to be un-prorogued, and the Liberals are not voting non-confidence anytime soon anyway). The Liberals would have been far better off to continue to call for an independent inquiry into Afghan detainees (they might have succeeded) instead of being distracted by media-driven piffle. It's too bad because I'm sure Ignatieff knows better.

        • I was not aware that the Liberals were not calling for such an inquiry. And votes in the Senate are *never* considered matters of confidence. I don't necessarily think that prorogation (or election dates) should be controlled by Parliament much less the PM; they should be matters of statute, not arbitrary whim. The trick is writing proper legislation to remove such arbitrary powers from the PMO. It is long past the point where the PM should be able to exercise any kind of royal prerogative. If this requires constitutional change, so be it – I do not think it would be difficult to accomplish.

      • "Further, the PM does not govern by virtue of any kind of affirmative vote of confidence from the Commons, but rather in the absence of a successful vote of non-confidence."

        These are one and the same thing. Canada does not work in the negative parliamentarism style, but in the positive. As far as any "yeah, we voted for ya, but doesn't mean we like ya" mentality, our system doesn't do nuance. You either vote for/with the government, or you do not. Period.

        You're right on your point if the PM resigns. The GG must always have a first minister, even if it's one leading a caretaker gov't. See the case of the Pacific Scandal, and the accession of Alex Mackenzie as PM.

      • As for 2008, the Harper government had already won the confidence of the House on their Throne Speech (vote on Nov. 27th, AFTER the Economic Statement), meaning Harper was less than a week out from having won the confidence of the House when he requested a prorogation. This, without any intervening lost vote (vote, not letter to the GG, but a cold, hard vote in Parliament), such as a Motion to Adjourn, which was freely open to any of the combined opposition to put forward, and which if won (i.e. a loss for the gov't) would've called the gov'ts command, and hence confidence, of the House into question. This is simple How To Take Down A Sitting Government 101 stuff, and Dion either wouldn't do it, or knew that he couldn't pull it off (knowing that on the day of any vote, the Ignatieff cadre likely would've developed bad cases of the flu).

        A legitimate and serious alternative ministry in waiting would've hung tough and toppled the government on the subsequent budget vote of 2009. That The Coalition imploded within days of prorogation was all the evidence anyone needed that it was never a serious alternative ministry in waiting.

    • But conventions can change. Even actual Crown powers can be limited by statutes. Convention isn't a magic word that automatically means the Conservative talking points are right.

  58. I thought she was talking about the Prime Minister–who would have remained an MP no matter what the party did, but I *was* surmising the party could recall the leader.

    You know, it's not all that easy (so far) to find out stuff like that. Which is to say I haven't the faintest idea what the current rules are.

    • As S&M has indicated, the rules are those of the parties themselves. They should have their constitutions online. S&M is also correct about the relative powers of each party leader – they have vetos on condidates selected locally and, since all elections are decided primarily on the attractiveness of one leader over another, regardless of actual adherence to party ideology, party platforms or party history, MPs know upon which side of the bread their proverbial butter lies. As I have suggested elsewhere at other times, I believe our political parties play a vital role and need more attention than they currently get from the electors of our country.

  59. And I have previously suggested that having changed the Orders, the Standing Orders themselves should only be amendable by vote of at least 2/3 of the membership, just as, in QC, most of the Officers of Parliament must be approved by 2/3.

  60. I don't think this is a one-to-one mapping here. This is, constitutionally, one of the bills that set the groundwork for the Glorious Revolution, in that it removed the King's capacity to prorogue Parliament without seeking its advice. The problem is that what the Prime Minister fits well enough into that general constitutional construct. There are nearly four hundred years of constitutional development since then (remember, back then the King effectively governed via his power to appoint and dismiss ministers, Parliament's power was the formulation of law). Things were considerably more fluid prior to 1688, and it was only afterwards that we saw the development of notions of responsible government, of the executive branch more firmly and directly in the hands of a majority bloc in Parliament.

    I'm still not convinced, considering that our constitution, written and unwritten, is very clear that the Sovereign or Vice-regal representative only act on the advice of the Government. There's some real hairsplitting involved in what constitutes the Government. Maybe Iggy and Layton are pondering the possibility of loosening the definition up to essentially include the entire Parliament (not necessarily a bad thing), but one thing I don't think either one of those guys are is radical revolutionaries.

    • What hair-splitting is there? The Government is the Cabinet, period. Even some Ministers of State, if they are not fully within the Cabinet, I wouldn't consider as the Government, b/c they probably do not have the authority to be a signatory to any order-in-council, etc.

      You're correct in saying that the environments are not at all the same, since the King (the Government) and Parliament were very much seperate entities at that time. Even the King's ministers at that time were not parliamentarians, even though they would often be dispatched to "lean on" various parliamentarians to get the King's bills and supply through.

      Now, Responsible Government demands a parliamentary executive responsible to the wider Parliament.

  61. Andrew, Constitutions have precedent, but not how the Canadian constitution is stated, same different exist in different constitutional monarchies throughout the world. I beg you to read the following parliamentary website for information, and perhaps inform yourself next time instead of going off on some partisan or journalistic rant.

    "It is the prerogative of the Crown, on the advice of the Prime Minister, to determine which method to use for prorogation."
    http://www2.parl.gc.ca/MarleauMontpetit/DocumentV

  62. Andrew, seeing as this was but one bit in the struggle that led eventually to civil war, do you maybe think that it's regarded as not the best precedent out there?

    Seeing as the subsequent Restoration basically reconstituted the doctrine of Divine Right, I would think most constitutional scholars would consider your example a “discarded” precedent. Our constitutional progression (which we derived from the UK) would then start from there, through the Glorious Revolution, and beyond.

    • A constitutional precedent can be overturned or superceded, much like a legal precedent can be overturned or superceded. It then ceases to be a constitutional precedent.

      Before the lost supply vote of 1968, we still clung to the silly notion that a loss on any "financial" motion meant that the government HAD to resign right away. That Stanfield did not push for this, and that Pearson didn't regard it as an ironclad rule, was to their credit. At the same time, unlike in the period after the lost confidence vote of May 10th, 2005, Pearson and the Liberal gov't ground all discretionary gov't business to a halt and adjourned Parliament until a clear motion of confidence was presented to Parliament within the week, and with a full House voting. The House voted confidence in the government, and regular gov't business resumed.

      Thus a new Canadian constitutional precedent was born.