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Reforming Prorogation While the House of Commons could un- doubtedly amend its Standing Orders on mat- Reforming ters like the structure of Question Period, elec- tronic voting, or limiting the use of omnibus bills, the House of Commons alone does not Prorogation: possess the authority to regulate the exercise of the prime minister’s authority over prorogation. The Commons doesn’t have Regulating Prorogation the authority to regulate Prorogation ends a session of Parliament and thereby clears all business from the Order the exercise of the prime Paper as if it never existed (apart, since 2003, from Private Members’ Bills) and terminates minister’s authority over all committee business. The period between sessions of Parliament, the duration of the pro- prorogation — writes rogation, is called the intersession. The execu- tive authority over prorogation ultimately flows from the Constitution Act, 1867; section 9 vests James W. J. Bowden the general “executive authority in and over Canada” in the Queen, and section 38 vests in the Governor General the authority to sum- he federal Liberal Party pledged in their mon, and therefore by necessity, to prorogue, Telection platform from 2015 that they Parliament. The Prime Minister alone advises would never use prorogation for purely politi- the Governor General to prorogue a session of cal purposes or tactical considerations if they Parliament, either through an instrument of formed government. Instead, they would use advice or by telephone. The prorogation is pro- prorogation in a perfunctory way and end a ses- mulgated into force either by a set of two proc- sion once Parliament had passed their legisla- lamations published in the Canada Gazette or tive commitments that flowed from the Speech by the Governor General’s speech in the Senate. from the Throne. They added: “Harper has used The first proclamation, or the speech in the Sen- prorogation to avoid difficult political circum- ate, prorogues the session of parliament, and stances. We will not.” the second proclamation summons the next After being sworn in on Nov. 4, 2015 Prime session of parliament for “dispatch of business”, Minister Trudeau instructed his House Leader usually within 40 days, at a date named therein. through the mandate letter to “Change the The prime minister may, however, advise the House of Commons Standing Orders to end Governor General to issue additional procla- the improper use of omnibus bills and proro- mations extending the intersession, normally gation.” On the afternoon of Friday, Mar. 10, in increments of 40 days. In theory, the only 2017 Bardish Chagger, the Government House hard limit to the duration of an intersession is Leader, released a paper entitled “Reforming section 5 of the Constitution Act, 1982, which the Standing Orders of the House of Commons: states that parliament must meet at least once Modernization of the Standing Orders of the every 12 months, but the practical constraints House of Commons,” which includes a propos- of the budgetary cycle and government legisla- al on “discouraging governments from abus- tion flowing from the Speech from the Throne ing prorogation.” Finally, on Mar. 21, 2017 the render this maximum intersession of 364 days Trudeau government moved, over the objec- a logistical impossibility. So, too, does the fact tions of the opposition, that the Standing Com- that since 1997, the Financial Administration mittee on Procedure and House Affairs study its Act has limited the issuance of Special War- proposed amendments to the Standing Orders rants to when Parliament is dissolved and only and report back to the House by June. for up to 60 days. 64 The Dorchester Review Spring/Summer 2017 Reform Prorogation? have prorogued early in the session to avoid he Standing Orders currently contain a few politically difficult situations. The Government Tprovisions that describe how a prorogation committed to Canadians to not abuse proroga- affects the business of the House of Commons, tion in such a manner. but they do not attempt to regulate in any way how the Prime Minister exercises his authority One option would be to require that the over prorogation. For instance, Standing Order Government table a document early in the 49 states, “A prorogation of the House shall not following session that sets out the reasons have the effect of nullifying an Order of Address for proroguing Parliament. The report could of the House for returns or papers …” Standing be automatically referred to committee for Order 55 pertains to how the Speaker of the study and could be the subject of debates House deals with preparing the Order Paper on Supply Days. Another approach could be when Parliament is prorogued or dissolved and to reinstate the prorogation ceremony that about to be summoned back. Finally, Standing would resemble the approach used in the Orders 81.6 and 86.2 declare that private mem- Speech from the Throne but would occur at bers’ bills now survive prorogation intact, unlike the end of the session. government bills (and presumably also private bills), which die on the Order Paper. These pro- The first paragraph presents something of visions, which the House of Commons adopted an ideal type of prorogation and does not take in 2003, represent the most significant shift in into account even prorogation under circum- practice on prorogation of recent years. Inter- stances that the Liberals do not admonish, such estingly, the Rules of the Senate do not mention as, for instance, intra-parliamentary changes of prorogation at all, except in the glossary’s entry government and transition of power from one for “Royal Prerogative.” ministry to another. Depending on precisely how the Trudeau The second paragraph seems like an oblique government words its proposed amendments allusion to Harper, but that category should to the Standing Orders, such changes would also include Chretien’s tactical prorogation of either be ineffectual or unconstitutional as a Nov. 12, 2003 which prevented Auditor General means of regulating how the Prime Minister ex- Sheila Fraser from tabling her report on the ercises his authority over prorogation. Relating Sponsorship Program until after the interses- the exercise of prorogation is simply beyond the sion. By the time the 3rd session of the 38th Par- authority of the House of Commons. liament convened on Feb. 2, 2004 Paul Martin The discussion paper did not delve into great had become prime minister. It would defy all detail on how it proposes to amend the Standing credibility to suggest that Prime Minister Chré- Orders to “discourage governments from abus- tien did not know that Auditor General Fraser’s ing prorogation.” It defines what prorogation report scheduled for November 2003 would re- is, admonishes the Harper government by im- veal what became known as the Sponsorship plication for having used prorogation tactically Scandal. In his memoirs, Chrétien insists: in 2008 and 2009, and then offers two potential Though I had neither seen Sheila Fraser’s report solutions to remedy that supposed problem: nor been briefed about it, I knew, like everyone else in Ottawa, that it was going to be tough. Prorogation signifies the end of a session within But I didn’t prorogue Parliament because I was a Parliament. At the beginning of a session, the afraid to face it or wanted to pass it like a kiss of Governor General sets out the Government’s death to my successor. agenda for the session in the Speech from the Throne. When the Government has delivered Curiously, in the preceding paragraph, Chre- on its commitments in the Speech, the Prime tien explained that he advised Governor Gener- Minister recommends to the Governor General al Clarkson to prorogue Parliament in Novem- to end the session through prorogation. ber 2003 precisely because “there was nothing urgent on the agenda, nor was there any point There have been instances where Governments in asking Liberal MPs and senators, most of Spring/Summer 2017 The Dorchester Review 65 Reform Prorogation? whom were heavily involved in the leadership sion to prorogue for tactical reasons. As to race, to stick around for routine matters such as the first, the Standing Orders probably could the tabling of the auditor general’s latest report compel the government to table a document on the sponsorship program.” So which was it? at the beginning of a new session which out- Was Auditor General Fraser’s report going to be lines the rationale for the Prime Minister’s de- nothing more than a “routine matter” or was cision to have prorogued in the previous ses- her report “going to be tough”? In these two pas- sion. The Standing Committee on Procedure sages, Chrétien acknowledges that he made the and House Affairs could study it. But to what decision to prorogue knowing full well that the end? The prorogation would already have hap- Auditor General was poised to pened, and it would remain table her report. the Prime Minister’s decision As Paul Martin points out in and responsibility. It would his memoirs, Chrétien’s expla- Proposed amend- be a waste of House time. nation strains credibility to the ments to the Stand- Worse still, the discussion breaking point. Chrétien insists paper suggests that the com- that his original plan involved ing Orders would mittee’s report could then be staying on as Prime Minister either be ineffectual debated on a Supply Day — months after he would cease to or unconstitutional in other words that an exec- be leader of the Liberal Party, utive decision which ended develop the language for a new as a means of regu- the previous session should Speech from the Throne, pres- lating the Prime take up one of the 22 allotted ent himself as Prime Minister Minister’s preroga- days per calendar year when in early 2004 at the start of the the Opposition controls the 3rd session of the 38th Parlia- tive over prorogation debate.
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