On restricting the power to prorogue

My highly influential Liberal blogging friend Steve has a post up on the NDP's proposal, or I guess musings about a proposal, to restrict the ability of a Prime Minister to prorogue parliament, and lamenting the NDP seems out ahead of the Liberals on this issue. I left a few lengthily comments on the matter there that probably merit further exploration here.

It should be noted that it seems the NDP are just talking about writing a bill, so it's hard to comment with too much authority about a hypothetical proposal. Essentially, they think that the PM shouldn't be able to ask for prorogation, but that it should require a majority vote by the House of Commons. (They seem to have forgotten about the Senate, not sure if that's intentional or not. Hard to justify excluding them though, if it was intentional. They get prorogued too.)

That said, I do have some thoughts, however.

First, I don't think the power to prorogue is the real problem here. Any tool can be abused. That doesn't mean the tool is flawed, though. Take guns. Guns have legitimate uses: safety and protection. They can also be abused to commit criminal acts. So we don't ban guns, but take steps to restrict their use. Still, gun control alone won't solve crime. The deeper problem is the criminals. So just as I support reasonable and effective gun control, I'm open to exploring reasonable and effective prorogation control, to coin a phrase. I'll get more into that in a moment.

I don't think prorogation is the real problem here though. It's the abuse of prorogation. The abuse of prorogation is a symptom of a larger disease: a prime minister contemptuous of parliament and democracy, our of touch with the priorities. Treating the symptom is fine. But it won't cure the disease. That's where our focus should be. Let me put it another way: Stephen Harper is a serial abuser of parliament. We can run around finding ways to change parliament; he'll just find other ways to abuse it. The problem isn't with parliament. The problem is with Stephen Harper. We need to get him into treatment.

Now, back to prorogation reform. I have to wonder, isn't there a constitutional question here? What I've read from the NDP today talks about restricting the PM from asking for prorogation. But it's my understanding that prorogation is a power vested in the Governor General who, by convention, accepts the advice of her Prime Minister on the matter, largely without question.

I'm no constitutional or legal scholar, but it seems there are two angles you could address it from: stop the PM from asking the GG for prorogation, or stop the GG from taking the PM's advice on it.

On the first, I don't see how you can legally bar the PM from stopping by Rideau Hall or, horror of horrors, phoning over and asking her for whatever he wants. Whether she says yes is another matter entirely, but you can't restrict his right to free speech. He can still ask for it.

Which leaves us with restricting the GG's latitude for accepting her PM's advice. Can that be done by simple law alone, or is that a change to her powers as described in the constitution? I'm no lawyer, but that would seem to tread into constitutional matters, which trump any legislation passed by Parliament alone.

So, to this layman, merely passing legislation that seeks to restrict the PM from being able to ask for prorogation seems largely symbolic and legally unenforceable. He can ask, and legislation won't change the fact prorogation is the GG's to grant, or to not grant. Now, it's true, a GG could feel morally obligated to heed the advice of Parliament as expressed through such legislation, and decide to overturn the convention of accepting the advice of her PM. She wouldn't be legally bound to do so without constitutional reform of her powers, but she does have that discretion, in theory.

She'd be under no obligation to do so, however. Indeed, the debate would have many parallels last year's prorogation, when the GG was asked to set aside the PM's request for prorogation in favour of the petition from the opposition coalition. We know how that one came out, and the unfortunate precedent set.

So, if we want real reform I really don't think this is as simple as saying "let's write a bill to restrict the PM's ability to ask for prorogation." I trust though he NDP has considered all the legal and constitutional questions, and crafted legislation (or plan to, I guess) that is intended to be legally binding and effective, and not mere symbolism. When they do come up with a proposal, if it will be binding and effective I'll be on board.

I know the Liberals are studying proposals for democratic reform, and are consulting with legal and academic experts on the wider issues. I'm not overly concerned that the Liberals haven't lept forward on this issue IF they're taking the time to craft legislation that could actually be effective at improving the system. Because I think it's effective reforms people are interested in, not symbolism, and I'd rather get it right than get the headline first.

In the mean time, let's not get so bogged-down treating symptoms we forget the disease. Look for the anti-prorogation rally near you on Saturday, come on out and make your voice heard.

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