Prorogation

by Thomas Moorhead Lawyer Policy and Advocacy, The Law Society of Western Australia

Monsieur Francis, Duke of Anjou and Alençon (French: Hercule François; 18 March 1555 – 10 June 1584)

On 7 December 2020, His Excellency the Governor prorogued the two Houses of the Parliament of Western Australia. Prorogation ends a session of Parliament and terminates all business listed on the notice papers of both Houses including matters referred by the Houses to committees.1

This means that all legislation that had not been passed by the WA Parliament, such as the Uniform Law application bills or the Administration Amendment Bill 2018, are wiped off the notice paper and must be reintroduced in the next session of Parliament. Prorogation is usually followed by a period of recess prior to either the opening of a new session or the dissolution of the Assembly before a general election. Parliamentary business cannot be conducted after a prorogation and before the Parliament is recalled. As stated by Erskine May, “the prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases”.2 The term prorogation comes from the Latin prorogatio which referred to the extension of a Roman praetor’s imperium beyond their fixed term.3

In Western Australia, the power to prorogue is found in the Western Australian Constitution,4 in language similar to that in s.5 of the Constitution of the Commonwealth of Australia.

Generally, Parliaments consist of only one session, which runs from one election until the next, where the parliament is prorogued prior to being dissolved, however this has not always been the case.5 Parliaments do not have to be prorogued before they can be dissolved, and prorogation can be used in circumstances completely unrelated to elections.

History of Prorogation

What appears on the surface as a straightforward matter of parliamentary procedure has a history steeped in blood and intrigue. In England, parliaments were regularly prorogued due to community transmission of the plague in London. In 1467 Edward I prorogued Parliament, as “ [the] plague was beginning to hold sway to such an extent that some luminaries of the commons house had caught that plague and died, to the manifest danger of the lord king himself and of the lords and commons who should be present in the said parliament”6 In 1578, Queen Elizabeth I of England prorogued the parliament to avoid debate regarding a potential French suitor, her ‘frog’, the pockmarked and scoliotic Duke of Anjou, 23 years her junior.7 In 1605, parliament was adjourned and then prorogued upon discovery of the now infamous gunpowder plot to blow it up.8 The most notorious prorogation belongs to Charles I who being short of cash in 1628, prorogued parliament following a disagreement about whether the King could raise customs without the consent of the parliament. The parliament remained prorogued for 11 years, resulting in no shortage of acrimony between the Crown and the parliamentarians, and ultimately the beheading of Charles in front of an angry mob at Banqueting House, and the English Civil War.9

Prorogation in the Commonwealth and WA

The Commonwealth Parliament was regularly prorogued prior to 1961, however since then it has been prorogued without an accompanying dissolution (i.e., not related to an election) on only four occasions. Two of these, in 1974 and 1977, were for the purpose of allowing openings of parliament by the Queen during visits to Australia. On another occasion, in February 1968, Parliament was prorogued following the mysterious oceanic disappearance of Prime Minister Harold Holt.10 The Parliament does not have to be prorogued prior to dissolution and a general election, and in fact between 1928 and 1990, Federal Parliaments were dissolved without any express prorogation.11 The practice of proroguing immediately prior to dissolution seems to stem from practice in the United Kingdom and may be designed to prevent the Upper House from meeting on its own initiative.12

Annual prorogation?

s.4 of the WA Constitution13 provides that: “there shall be a session of the Legislative Council and Legislative Assembly once at least in every year, so that a period of twelve months shall not intervene between the last sitting of the said Council and Assembly in one session and the first sitting of the said Council and Assembly in the next session”. There are differing interpretations of this provision. Some states are ‘strict constructionists’ and prorogue parliament every year to ensure there is a session every year.14 Other states (and the Commonwealth) are ‘non-observant’ and consider that the section is concerned “with a less-than-twelvemonths-interruption rather than with a onceat-least-every-year session”.15 In 2003, the Western Australian Parliament formally departed from the ‘strict constructionist’ view to the ‘non-observant’.16 This had the obvious benefit of Members not having to re-introduce lapsed legislation every year, and not disrupting the work of Parliamentary Committees.17 However, this does not prevent the Governor from proroguing parliament on the advice of the Executive Government, and prorogation can and has been used as a tactic to be employed by Governments in or against a hostile house.18

Notable Contemporary prorogations

The 1991 Carmen Lawrence Prorogation19 In 1991 the first female Premier in Australia, Carmen Lawrence, was in the throes of managing the ‘WA Inc’ scandal of her predecessor Brian Burke.20 A Royal Commission into the matter was called by the Premier,21 however the WA Legislative Council, in which the Labor Government held a minority, had also established not one

but two selected Committees conducting investigations into ‘WA Inc’. On January 3, 1991, Parliament was prorogued, in a move widely interpreted as a tactic to prevent the Legislative Council Committees from continuing their work during the recess.22

The 2008 Canada Prorogation

In 2008, the then Prime Minister of Canada Stephen Harper asked the Canadian Governor General to prorogue Parliament in order to avoid a no confidence motion (based on a controversial budget) which his minority Government was set to lose. After a 2.5 hour discussion the Governor General agreed to the prorogation and the no confidence motion (plus everything else before the Parliament) was quashed. It was the first time in Canadian History that this had occurred.23

The 2010 NSW Prorogation

In 2010, the then premier of NSW prorogued the parliament to shut down a Committee inquiry into the sale of state electricity assets. The Government subsequently lost the next election, and the new Government enacted a law amending the State Constitution to only permit prorogation before a fixed term general election, from Australia Day.24

The 2016 Turnbull Prorogation

In 2016, the Turnbull Government prorogued the 44th Parliament in order to recall both houses to pass legislation to reinstate the Australian Building and Construction Commission which had been blocked in the Senate. This was the first-time prorogation had been used to circumvent a hostile senate since 1914.25 In the event the legislation still wasn’t passed, triggering a double dissolution election.26

The 2019 Brexit Prorogation

On 28 August 2019, the Parliament of the United Kingdom was ordered to be prorogued by Queen Elizabeth II upon the advice of the prime minister, Boris Johnson. Since Parliament was to be prorogued for five weeks and reconvene just 17 days before the United Kingdom’s scheduled departure from the European Union on 31 October 2019, the move was seen by many as an unconstitutional attempt by the prime minister to avoid parliamentary scrutiny of the Government’s Brexit plans in the final weeks leading up to Brexit.27 The matter was so contentious that it was litigated three times,28 ultimately in the Supreme Court of the United Kingdom.29 The Supreme Court found that the matter was justiciable, citing the 1610 Case of Proclamations,30 and that a prorogation is unlawful “if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature”.31 In this case the Court found that the prorogation had that effect given it prevented parliamentary scrutiny of the ‘fundamental change’ occasioned by Brexit.

Conclusion

Although most commonly known as a routine parliamentary procedure in the lead up to an election, prorogation can be used in novel circumstances for political purposes, raising serious questions regarding parliamentary sovereignty and responsible government. It can be used so due to the inconsistent uses of prorogation in Westminster Parliaments and the historical precedents available. Perhaps the West Australian put it best when it stated in regards to prorogation, “all this may be perfectly constitutional but it is a chilling thought that the executive should be able to bend the constitutional rules for party advantage”.32 It is anyone’s guess when the next prorogation controversy will crop up, and how it may be dealt with, especially in light of the United Kingdom Supreme Court decision. It could be that a Governor may refuse to prorogue a Parliament, which if it occurred could provoke a constitutionally fascinating turn of events. I hope this article has provided some colour to an otherwise mundane or illusive piece of parliamentary terminology.

1 Proclamation proroguing Legislative Council and Legislative Assembly 2020. WA Government Gazette, 7 December 2020 2 Erskine May, Parliamentary Practice 24th edn, p. 145 3 Not just praetors, consuls, and magistrates as well. The practice was used increasingly in the provinces as the Roman Empire expanded and there was a dearth of elected officials to relieve those in command. From these pragmatic origins the practice became politized and through legalizing the retention of power in individuals, contributed to the decline and fall of the Roman Republic. 4 Constitution Act 1889 (WA) s.3 5 Only since 1990 has this been common practice in the Federal Parliament. 6 https://thehistoryofparliament.wordpress. com/2020/07/09/plague-prorogations-and-thesuspension-of-the-courts-in-fifteenth-century-england/ He wasn’t in that much danger, as at the time he was at the other end of the country waging war on the Lancastrians. 7 This pet name is possibly the origin of the pejorative labeling of the French as ‘frogs’. Although the Queen had affection for him, public sentiment was so adverse she broke off the proposed marriage in 1581. https:// www.nationalarchives.gov.uk/education/resources/ elizabeth-monarchy/elizabeth-i-to-the-duke-ofalencon/ 8 https://www.historyofparliamentonline.org/ volume/1604-1629/survey/parliament-16041610#footnote6_dqcn65n 9 https://royalcentral.co.uk/interests/history/whencharles-i-prorogued-parliament-129797 10 https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/ FlagPost/2016/March/Proroguing_Parliament 11 https://www.aph.gov.au/About_Parliament/House_ of_Representatives/Powers_practice_and_procedure/ Practice7/HTML/Chapter7/A_Session 12 Ibid. 13 There is an analogous provision in s.6 Australian Constitution. 14 The Westminster Parliament is also generally prorogued every year. 15 Commentary on the Australian Constitution (Lane), 1986, p 23. 16 PROCEDURE AND PRIVILEGES COMMITTEE CHANGES TO PROROGATION AND EXTENDED SESSIONS Report No. 4 2003 https://www.parliament. wa.gov.au/Parliament/commit.nsf/(Report+Lookup+by +Com+ID)/024D0345DACEB23548257831003E95DE/$f ile/Changestoprorogationandextendedsession.pdf 17 The effect of prorogation on Committees has been a point of discussion and debate amongst learned Parliamentary Clerks and beyond the scope of this paper. One opinion is that Committees of the Legislative Council may continue to meet based on the principle of ‘reasonable necessity’ espoused in Egan v Willis [1998] HCA 71. 18 The Canadian prime minister prorogued the Canadian Parliament in 2008 to delay a vote of no confidence in the Government: http://news.bbc.co.uk/2/hi/ americas/7765206.stm 19 Gerard W Horgan Prorogation as a tool of the Executive in intercameral conflict https://www.aspg.org.au/wpcontent/uploads/2017/08/Prorogation-1.pdf 20 Mark Skulley The sinking of WA Inc. 03 December 2008 https://www.eurekastreet.com.au/article/the-sinkingof-wa-inc 21 More information in Bruce Stone ‘Accountability Reform in Australia: The WA Inc Royal Commission in Context’ The Australian Quarterly Vol. 65, No. 2, Accountability: Who Is and Who Should Be (Winter, 1993) 22 Gerard W Horgan Prorogation as Partisan Political Tool: The Western Australia Experience https://www. academia.edu/4721026/Prorogation_as_Partisan_ Political_Tool_The_Western_Australia_Experence 23 https://www.lexology.com/library/detail. aspx?g=44934703-b6ed-4876-9ec0-6fd1b6e5a708 24 Constitution Amendment (Prorogation of Parliament) Bill 2011 (NSW) 25 Then Prime Minister Joseph Cook prorogued the Parliament in 1914 to bring about a double dissolution election, which he then lost. 26 The Turnbull Government won the election and had the numbers to pass the legislation in the next Parliament. 27 https://www.theguardian.com/politics/2019/aug/28/ what-is-prorogation-prorogue-parliament-borisjohnson-brexit 28 Once in England at the High Court of Justice: [2019] EWHC 2381 (QB), Once in Scotland at the Scottish Court of Sessions [2019] CSIH 49 and Finally on Appeal at the United Kingdom Supreme Court 29 R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41 30 Case of Proclamations [1610] EWHC KB 31 See 28 above, at para 50. 32 “Executive Rule,” West Australian, 12 October 1971, 6