Legislative Discontinuity: An Introduction

Last month I had the pleasure of participating in the International Conference on Legislation and Law Reform, which was held at AU’s Washington College of Law. During one of the plenary sessions on U.S. legislative drafting, a Dutch lawyer asked about the practice of “discontinuity” in Congress. I am not sure the panelists understood what this term meant (I know I didn’t), but the lawyer elaborated that he was asking whether legislation had to pass within a certain period of time. The panelists then explained that bills must pass both houses within the two-year congressional term and that all unfinished legislative business dies at the end of each congress.

This practice is known, at least internationally, as one of “discontinuity” because legislative business does not continue past the expiration or dissolution of the legislature. I asked the Dutch lawyer later whether there are legislatures which follow the opposite practice of allowing legislation to continue even though a new legislature has been elected. He said there are, including the Netherlands and the EU Parliament. In these jurisdictions bills can remain “live” for years or even decades after they are introduced. In some cases, the original sponsor of the measure is no longer in the legislature so there is no one who can formally withdraw it.

There apparently is not a lot of literature on discontinuity, but one recent article discusses it in some depth. SeeRivka Weill, The Living-Dead, 38 Fordham Intl L. J. 387 (2015). Professor Weill explains that legislative discontinuity is “the prevailing norm in both presidential and parliamentary systems.” Id.at 389. There are, however, exceptions, including the Netherlands and the EU Parliament (so that checks out). Id.Another exception is Israel, and Weill (who is Israeli) focuses on the decision of the Knesset to adopt a rule of continuity in the 1960s.

She describes two different schools of thought within the Knesset. The pro-continuity side saw the Knesset as a continuing body. Id.at 447. This position, according to Weill, rested on a conception of the legislature as having “perpetuity and continuity similar to an artificial body, like a corporation.” Id. at 448. Under this vision, the continuity of the legislature is maintained by the passage of sovereignty from one assembly to another, just as in a monarchy the sovereignty of the King’s person passes in death to the natural body of his heir. Id.

The discontinuity side, on the other hand, believed that “each parliament is born anew.” Id.at 447. Weill argues that this conception is fundamental to representative government and that the failure to follow it “severs the link between legislative cycles and election cycles, and thus eviscerates the significance of elections.” Id.at 413. By contrast, the pro-continuity argument is mistaken because in Israel and other liberal democracies “the continuity of sovereignty rests with the people, not with their representatives.” Id. at 448. Thus, popular sovereignty “is manifested in the real power of constituents to influence the content of laws by breaking the legislative continuity and electing new representatives.” Id.

Weill also contends that as a matter of actual practice, the Knesset has not regarded itself as a continuing body. Moreover, even in the U.S. Senate, which does consider itself to be a continuing body, “the principle of discontinuity of the legislative process applies, as bills that do not become law within two years are dead.” Id.at 449.

One of the interesting aspects of this Israeli debate related to the discussion of British parliamentary practice. See id.at 404-06, 409-10. Weill explains that Great Britain was viewed as the symbol of discontinuity and that both supporters and opponents of the continuity proposal used its example in their arguments. Id.

Here, some background on British practice may be useful.


Discontinuity in Britain

Historically, discontinuity in Britain stems from the crown’s prerogative powers of summoning, proroguing and dissolving parliament. Once a parliament was summoned, the king could either use prorogation to end its session or dissolution to end the parliament altogether:

The Tudor and Stuart monarchs summoned parliaments not merely to request tax revenue, but also to enact policies. They also relied on prorogation to prolong the life of a favourable rather than risk dissolving it and summoning a new, potentially less pliable parliament. For example, Henry VIII used prorogation to extend the life of the Reformation Parliament to seven years; it sat through seven sessions between 1529 and 1536 and passed a variety of statutes that broke with the Holy See and established England as an independent Protestant kingdom. Charles II used prorogation to prolong the life of the Cavalier Parliament and its Royalist majority from 1661 to 1679. The Stuarts also expressed their hostility toward what they regarded as parliamentary encroachment on Divine Right by dissolving pesky parliaments. The Sovereign thus determined at his own discretion both the duration of each individual parliament through prorogation and the number of years between parliaments through dissolution.

James W. J. Bowden, Reining in the Crown’s Power on Dissolution: The Fixed-Term Parliaments Act of the United Kingdom versus The Fixed-Election Laws in Canada19 (June 4, 2013). Either prorogation (end of a session) or dissolution (end of a parliament) resulted in the death of pending legislative business. See 1 William Blackstone, Commentaries on the Laws of England186-88 (1765).

As Parliament grew stronger, these royal prerogatives were to a large extent limited by statute and practice. Bowden, supra, at 19-22. Eighteenth century parliaments had a statutory maximum life of seven years and the dissolution of one parliament was routinely followed by the summoning of a new parliament and accompanying elections for the House of Commons.See1 Blackstone, at 177-78, 189.

Even today, the queen formally exercises the powers of prorogation and dissolution, though in practice she does not exercise her own discretion but acts on the advice of the prime minister. SeeWilliam McKay & Charles W. Johnson, Parliament & Congress: Representation & Scrutiny in the Twenty-First Century33, 123 (2010). A new parliament is summoned by the crown and the parliament ends when It is dissolved by royal proclamation or (less commonly) by the passage of time. Id. Parliament continues to follow a rule of both legislative and sessional discontinuity (or, as it is sometimes called, “sessional cut-off”). However, sessional discontinuity is no longer absolute as some legislation can carry over from session to session. Id. at 465-66; Weill, 38 Fordham Intl L. J. at 404 n.74, 409-10.

Continue reading “Legislative Discontinuity: An Introduction”