Wednesday, January 20, 2010

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.

Recommend this Post on Progressive Bloggers


Steve V said...

"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."

I'd agree with that, but the concern is the IF part. Right now, when the debate is pointed (this window doesn't last forever), it's hard to get excited about the possibility that we might possibly have something to offer at a possible later date. IF, you are correct, I'll stand corrected and applaud. This is a perfect opportunity for the Libs to rebrand themselves, let's not squander it.

Saturday will be a good day, very much looking forward to it. I can walk and chew gum at the same time, unlike some people :)

Jeff said...

There's a reason I capitalized both the I and the F. ;)

Let's also bare in mind that neither party is really offering anything substantive on this issue at the moment. Essentially, the NDP have said power to prorogue should be restricted, Liberals have said we wouldn't abuse it but not sure about restrictions.

I tried to illustrate in the post that it's simple to say you want to restrict it. The sticky part is in how you do it effectively so it's not mere symbolism. That's what I want to see.

Until then, we're all just talking. And talk, as the kids say, is cheap.

Steve V said...

I think I spoke to the "substantive" part, it's more the optics. Lots of stories about the NDP offering reforms, how that is a bad thing for them on this score, escapes me. It's all a bit cheeky what arguing, strategy as opposed to real "reform" (kind of like those attack ads that never really played anywhere, but got lots of press). Why can't the Libs put this little item in the window? The big debate might come later, and that is where we can look at the merit. Right now, part of this is public perception. I guarantee tomorrow, one of the first questions asked of Ignatieff will be "what would you do differently?" Layton has his little toy, what do we have. Oh ya, IF ;)

Joanne (True Blue) said...

Let's also bare in mind

Let's not.

Jeff said...

Wanted to add that I think democratic reform should go beyond just tinkering with prorogation. And I don't think the way to propose meaningful democratic reform is to spring into action with a hastily prepared proposal written in the back of a napkin to seize a moment of public outrage.

You ask how Ignatieff should answer on this tomorrow. Well, were I him, or rather, were I the leader, here's how I would:

"I think exploring ways to ensure the legitmite tool of prorogation isn't abused by an ozerzealous Prime Minister that is contemptuous of parliament certainly has merit.

Since the NDP has now decided to join the Liberal lead in returning to work on January 25th, I hope we'll have the opportunity to discuss this further, along with other ways parliament can work more effectively to serve the needs of Canadians.

I think we need to look beyond prorogation, however. The abuse of prorogation is just the latest of a long string of incidents that demonstrate this government's contempt for the elected house and its members that you, the people, have sent to Ottawa to speak for them.

It's time that we as Canadians had a national conversation about our system of governance, and how we can make it better. We want to talk to constitutional scholars, to legal experts, to academics, and to ordinary Canadians about how we can build a system of government truly reflective of the will of the people, with a strong parliament able to hold the government of the day, whatever it may be, to account.

Let's hear your ideas. Do we need a new voting system, as several provinces have considered in referenda? Should we move to mandatory voting, as in Australia? Is there still a role for the Senate in the modern age, elected or otherwise? Is it time for a Canadian head of state?

If the last few weeks have taught us anything, it's that Canadians are dissatisfied with the status quo. It's time for all of us to come to the table as Canadians to find a better way forward.

I look forward to working with the people of Canada to find that better way."

And then I'd repeat it en Francais.

ChrisInKW said...

While the powers of the Crown can't be altered unless a constitutional amendment is passed and provincial governments agree, perhaps an extra layer of accountability could be added to the process of prorogation.

The government of the day could be required to deliver a speech before the House of Commons containing a summary of their accomplishments during the session, which could be held up against the Throne Speech as a measure. Debate and questions could be heard. While a final vote couldn't deny the Crown the right to prorogue, the recorded division would be an expression of Parliament's confidence in the government. Perhaps it could be treated as a confidence matter. That way, the Supremacy of Parliament and the will of the people could never be obstructed by an overzealous Prime Minister keen on avoiding scrutiny through abuse of power.

It is interesting to note (h/t M. Laplante) that according to Marleau and Monpetit, this end of session speech before the House was common practice up until 1983, though it was given by the Governor General or deputy, so this proposal would not deviate widely from tradition. Adding the vote at the end would offer the Crown more insight into the will of the people, even if it were not binding.

Anonymous said...

The opportunity for the Liberals then (now that they have been outflanked on a simple direct talking point) is to establish that they wish to respect the authority of the Governor General, and they will enact legislation more clearly defining the role. The checks and balances are in the system, but time and a lack of a formal structure have made those checks moot.

I will now self-promote, and point you to a discussion we've been having here and here about this very point.

Mark Richard Francis said...

It's not about affecting Harper's right to free speech. It's about restricting his ability to *officially* make the request. He can unofficially say whatever he wants. The GG won't respond.


A reader said...

The NDP has a number of very good lawyers in their caucus (Joe Comartin, Jack Harris would be the first two examples off the top of my head), so I'm sure they're on pretty solid legal ground.

Anonymous said...

IMO, as a fellow layman, such a law would have to have include a provision such as to remain constitutionally valid,

"Nothing in this section affects the powers of the Governor General, including the power to dissolve and prorogue Parliament at the Governor General’s discretion."

It would be similar in authority as the fixed election date law. To break such a law may carry a political price, and thus eventually become convention - but to ignore such a law and prorogue would still be constitutional. .

Anonymous said...

I found this via the National Post. Quite an insightful post I think.

I think you've made an excellent observation that this proposal is ultimately completely unenforceable. To my mind that makes it yet another parliamentary game. Show over substance if you will.

Even if you're wrong and it's very effective, it's utterly useless if the Prime Minister has even a tiny majority. In other words, it seems like a law that's crafted exclusively for this session of parliament. More bad ideas from the NDP. I hope the Liberals ignore them and go for substance.