Thursday, October 18, 2012

The Pro-Rogue's Gallery

Prorogation is back in the news in Canada, after Monday's surprise announcement by Dalton McGuinty that he was both resigning as Premier, and had advised the Lieutenant Governor to prorogue Ontario's legislature.  Pundits and political commentators have been weighing in on the appropriateness of McGuinty's actions, with some describing it as an abuse of power, while other argue that he has every right to prorogue.

As a starting point, it's important to understand what prorogation is.  A Wikipedia article describes prorogation as: "the end of a parliamentary session in the Parliament of Canada and the parliaments of its provinces and territories. It differs from a recess or adjournment, which do not end a session, and from a complete dissolution of parliament, which ends both the session and the entire parliament, requiring an election for the House of Commons."

Prorogation is a power of the monarch (known as a Royal Prerogative or prerogative power) which is exercised by her appointed representatives, the Governor General in the case of federal government, and the Lieutenant Governor in the case of the provinces.  This power is exercised on the advice of the Prime Minister or Premier, but is otherwise virtually unfettered.  Since all Parliamentary sessions must come to an end at some point, prorogation is generally a routine parliamentary procedure, and is typically done once the government has completed the agenda they set forth in the speech from the throne that starts each parliamentary session. 

Where prorogation becomes problematic, however, is where the Prime Minister or Premier uses it for partisan political advantage instead of effective governance.  As detailed in the above wikipedia article, Stephen Harper was controversially granted a prorogation in 2008 to avoid a vote of confidence in the House of Commons when the opposition parties signaled their intent to defeat his government and replace it with a Liberal-NDP coalition with the support of the Bloc.  In 2009, Harper was granted another prorogation, stated to be to suspend Parliament during the Olympics, but suspected by many to allow his government to avoid facing difficult questions in the House of Commons about the Afghan Detainee controversy.  Similarly, in 2003, the Governor General granted Jean Chretien a prorogation, which enabled his government to avoid tabling a report on the sponsorship scandal with the House of Commons Public Accounts Committee.

Of course, partisan advantage is often in the eye of the beholder.  Conservatives supported the 2008 prorogation, stating that the proposed coalition was unstable, and a "coup" designed to "overturn the results of the recent election".  Those comments showed a huge misunderstanding of how parliamentary democracy works.  In any event, many of those same Conservatives had no problem with Stephen Harper writing a letter to the Governor General offering a similar arrangement to govern with the support of the NDP and the Bloc in 2004.

Similarly, many of the Liberals who described the 2009 prorogation as an attempt to "padlock Parliament" had no such compunction about Chretien's 2003 prorogation which served a similar partisan purpose.  And many of those same Liberals now defend McGuinty's prorogation, even though it is of indefinite duration until the Liberals pick a new leader, and appears designed to avoid a contempt finding against members of his government.

Of course, it is difficult to ever determine what the real reasons for a prorogation were, since the Governor General or Lieutenant Governor is not required to give reasons for their decision, and the Prime Minister or Premier is not required to disclose their advice.  Another problem is that there are no written rules limiting the way in which the power can be exercised, although there are arguably some limited constitutional conventions setting procedural limits around it use.

Canadians should be concerned about the above developments, and asking all parties tough questions about the use and abuse of the power of prorogation in all of the above situations.  Prorogation brings the business of Parliament to a halt, preventing important legislation from being passed in a timely fashion and vital committee work from getting done.  It also hinders the Opposition from doing their job, which includes asking tough questions of the government in the House of Commons.  It is quite simply not in the best interests of the country to allow Parliament to grind to a halt whenever it suits the governing party.

Several reforms have been proposed to the power of prorogation, including requiring Parliament to approve a prorogation.  In their excellent book "Democratizing the Constitution", Professors Turnbull, Aucoin and Jarvis suggest that prorogation should require a 2/3 vote in the House of Commons, which would generally require the government to get the support of one or more opposition parties in order to prorogue.  They also suggested the creation of written guidelines, similar to New Zealand's cabinet manual, regarding when certain prerogative powers and powers of the Prime Minister should be exercised. 

Guidelines seem easy enough to implement, although might be more difficult in practice, as there seems to be a lack of agreement among even constitutional experts as to when the power of prorogation is properly exercised.  Rules seeking to limit when the power of prorogation can be exercised may be more difficult to implement, especially since a 2009 decision of the federal court suggests that placing any limits on prerogative powers would require a constitutional amendment.   Amending the constitution has proven nearly impossible in Canada since 1982.  Nonetheless, the difficulty involved does not mean we should avoid attempting reform on this and other important constitutional issues.

One simple measure that might go some way toward beginning to address these problems would be if Governors General and Lieutenant Governors started providing reasons for their decisions to prorogue and exercise other prerogative powers.  I am not aware of any legal impediment, and is certainly within their powers to do so.   It could serve many purposes, providing more clarity and transparency around how these powers are used, helping Canadians to better understand our constitutional arrangements, and even helping some clear precedent around when it is appropriate to exercise these powers.  This is by no means a comprehensive solution to the problems raised by prorogation, but would at least be a first step in the right direction.

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