Categories: Andrew Coyne, Capital Read, Uncategorized

A Caroline precedent

by Andrew Coyne on Tuesday, January 26, 2010 10:44am - 112 Comments

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.

Tags: Charles I, precedent, prorogation

More by Andrew Coyne

http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

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.
http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

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

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.)

http://intensedebate.com/people/Jenn_ Jenn_

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.

http://intensedebate.com/people/VinceClortho VinceClortho

LOL…sure but not in 3D it would remind me too much of this

[youtube 6m2gl51J6lo&feature=related http://www.youtube.com/watch?v=6m2gl51J6lo&fe... youtube]
Orson Bean

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.
kcm

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.

http://intensedebate.com/people/Jenn_ Jenn_

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!

kcm

You're a sweetheart.

Loraine Lamontagne

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.

http://intensedebate.com/people/VinceClortho VinceClortho

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.

Loraine Lamontagne

I meant to write that with Chrétien out of the way, the Quebec ministers would have been tossed out.
http://intensedebate.com/people/SeanStok Sean

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

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.
http://intensedebate.com/people/LynnTO LynnTO

True. According to Wiki, his maternal lineage is English/Scottish. (http://en.wikipedia.org/wiki/Michael_Ignatieff, for those who are interested).

So…it's possible, but I still wouldn't call it probable.
http://intensedebate.com/people/LynnTO LynnTO

*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.
orval

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.

norman spector

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
http://intensedebate.com/people/Mader David Mader

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.)

Orson Bean

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…

http://intensedebate.com/people/sea_n_mountains sea_n_mountains

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.

http://intensedebate.com/people/Jenn_ Jenn_

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

http://intensedebate.com/people/sea_n_mountains sea_n_mountains

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.

kcm

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.
kcm

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

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 . . .

kcm

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.

http://intensedebate.com/people/Be_rad Be_rad

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?
http://intensedebate.com/people/sea_n_mountains sea_n_mountains

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.
http://intensedebate.com/people/LynnTO LynnTO

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

kcm

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

http://intensedebate.com/people/YSP YSP

The above Act only applied to "this present Parliament now assembled" in 1641, not to all future Parliaments.
http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

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.
http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

Either that or an Act of Attainder : )
Loyal Subject

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!!
Ted

"of the worst kind" no less.