Monday, January 25, 2010

Limits on prorogation

What to do with a rogue Prime Minister who demonstrates that he won't be constrained by the unwritten rules of our constitutional system? The answer is to stand up to this challenge to our democratic system by instituting rules to ensure it doesn't happen again. The Liberals have made their proposals today:
To prevent future abuses of prorogation, the Liberal Party of Canada will seek to amend the Standing Orders of the House of Commons to:

• Require at least 10 days written notice from the Prime Minister of his intention to seek to prorogue, together with his specific reasons for doing so;

• Require the Prime Minister to bring the issue of prorogation before the House of Commons for a full debate;

• Prevent a request for prorogation within the first year after a Speech from the Throne, unless the House consents;

• Prevent a prorogation longer than one calendar month without the consent of the House;

• Prevent a request for prorogation if a matter of confidence has been scheduled in the House unless the House consents; and,

• Allow Parliamentary Committees to continue to function during the period when Parliament is prorogued until the start of the new session.
This is a responsive proposal to current obvious unrest that Mr. Harper has stoked. It's reasonable and, really, common sense. If you have nothing to hide, if you work cooperatively with the opposition in Parliament, such rules almost take on an administrative, minimalist tone. The uproar demanded a response that was equal to the concerns raised about the Prime Minister's power to prorogue and I think this has met that imperative.

While it's been opined in a few quarters that such proposals are comparable to the fixed election date law that sought to restrain the Prime Minister from asking for an election beyond the fixed date, and are therefore useless, I'd submit that present political facts and public demand make this a very different and unique case. And our present constitutional reality makes practical limits on prorogation a necessity to consider.

A formal change to the Governor General's powers would require unanimous consent to amend the constitution and no one seems prepared to venture down that road. It would probably open up a debate on allegiance to the monarchy, etc., and that's likely not on anyone's agenda of to-do items in the here and now.

The point of such a set of "anterior" proposals, i.e., restraints prior to the Governor General's involvement, is to express what Parliament wants on a given issue with constitutional implications given the very difficulty we face in achieving such constitutional change. It becomes a matter of political consequence as to the effect of disobeying such a law. Harper was not punished for breaking his fixed election date law, although one could argue that particular breach led us to this place where prorogation was a bridge too far. The public was not incensed about his action.

Does anyone have any doubt that the next time a Prime Minister seeks to prorogue Parliament that great attention will be paid to that effort and that political consequences will follow? It will and this is a point that was raised at a law forum I attended last week, which I thought was one of the most compelling points made: a "growing push back on prorogation in public is the real limit on this power in the future." It is up to the public to restrain our elected officials by expressing our discontent. We have done so on prorogation already and the exercise of that power will be significantly altered going forward. Public condemnation gives prorogation reform proposals their legitimacy (and arguably, even without reform, public condemnation has limited its future use in any event). Prime Ministers will ignore them at their peril. Mr. Harper has had a taste of this.

Other thoughts today: here, here and here.