The House of Commons mace. Library of Parliament
The problem is excessive prime ministerial power – and the solution is legislative restraint on prorogation
From Saturday's Globe and Mail Published on Friday, Jan. 22, 2010
wice in a year, Prime Minister Stephen Harper has demonstrated that Canada's head of government can act unilaterally, although lawfully, to suspend a legislature. He did it once to avoid a vote of confidence in the House of Commons, and more cunningly, this time, for purposes of political convenience and to escape accountability. The resulting controversy over prorogation illuminates how our parliamentary democracy is evolving, but evolving perilously.
The age-old struggle for parliamentary rights against an arbitrary governor was settled long ago. In Canada; this was exemplified in the quest by Robert Baldwin and Sir Louis-Hippolyte LaFontaine for responsible government. A basic requirement for responsible government in the parliamentary system, where the executive and legislative branches are partly fused, is for the executive to be answerable for its actions to an elected legislature. But a new struggle for parliamentary rights is under way, and this time it is the prime minister who is wielding potentially autocratic powers.
Mr. Harper is not an autocrat. He is the leader of a twice-elected minority government whose legislative priorities have been frustrated by political opponents (including those in the unelected Senate), and who on some days must see Parliament less as the expression of Canada's democracy and freedoms than as a meddlesome obstacle to his government's ability to fulfill its electoral mandate. Mr. Harper's annoyance is understandable, but it does not explain or excuse his failure to take seriously his duties to Parliament, nor does it assuage concerns over his clumsy tactical use of prorogation.
The prime minister derives his right to govern from Parliament, yet his authority is vastly strengthened by the unwritten part of the constitution, powers accrued by the prime minister from an accumulation of royal prerogatives, including powers to effectively suspend or dissolve parliament and even to declare war. The prime minister has acquired further powers by rules of the House of Commons, including, in practice, the authority to pick (and thereby control) most parliamentary committee chairs. The cumulative result is that the prime minister in this country now threatens to subsume the legislature. The Canadian prime minister wields more power in his or her own right, unchecked by cabinet or Parliament, than the prime ministers of the other major Westminster-style democracies.
“It is time for greater knowledge and understanding about the unwritten rules of the constitution, and more legislative control over some of those rules.”
The best defence of Parliament against subjugation to prime ministerial whim is, first and foremost, a prime minister who exercises maturity and judgment in parliamentary matters. Defence also, from time to time, might require intervention by the governor-general. There has been much debate regarding the decision of Michaëlle Jean to accede to Mr. Harper's request to prorogue Parliament in 2008, thereby allowing his minority government to avoid a confidence vote it was set to lose. Without the ability to vote its confidence, or not, in the government, Parliament was denied its chief weapon against prime ministerial power. Some constitutional experts believe the Governor-General had a responsibility to exercise the reserve powers of the Crown and refuse the Prime Minister's advice to prorogue. But others argue that the Governor-General should do as little as possible to interfere with politics, and made the correct decision in that case. There was not a serious constitutional question in the Dec. 30, 2009 prorogation, which was more an unwise political manoeuvre.
To have denied prorogation on either occasion would have precipitated a constitutional crisis. Ms. Jean would have been vigorously attacked by Mr. Harper's supporters as a Liberal appointee betraying her partisanship, and would have been cast as prime villain in the inevitable ensuing drama. Ms. Jean had the power to deny Mr. Harper's request in 2008, but Canada is a constitutional monarchy, and when it comes to politics the Crown acts on advice, even if the advice is bad.
These issues have not revealed any immutable flaws in our inherited parliamentary form of government. The British prime minister exercises considerable powers, yet British MPs and parliamentary committees have much greater autonomy than their Canadian counterparts. Prorogation in the United Kingdom is not used today as a blunt instrument to avoid votes of confidence by parliamentarians, or as an overt tool of partisan advantage. Mr. Harper operates in a very different environment, one seemingly unfettered by either the weight of tradition or knowledge of the unwritten rules of our constitution, although his party's recent drop in polls suggests Canadians are much more concerned for their democratic institutions than he surmised and want their representatives back at work.
In the U.K., politicians have made serious attempts in recent years to understand and have looked at codifying the remaining executive royal prerogative powers. A parliamentary committee took up the issue; the government responded with several reports. One of them states, “Parliament's general authority as the ultimate sovereign body and source of the government's right to govern ... ensures that any government needs to take seriously Parliament's concerns.” There can be no such confidence here, and unsurprisingly, no similar reform effort currently exists in Canada.
Fred Lum/The Globe and Mail
An empty House of Commons: When Parliament was prorogued, 36 bills died on the order paper.
The solution: Legislative restraint
It is time the rules governing prorogation changed. Canada's Parliament has shown itself vulnerable to an excessive concentration of power, and hence is hampered in fulfilling its role as the “ultimate sovereign body.” The prorogation of 2008 has now been followed by another, this time simply for partisan tactical convenience. The Prime Minister is misusing the power to shut down Parliament, and in the process destabilizing Canada's democracy. For that reason, prorogation should be made subject to legislative controls.
There is a precedent. Mr. Harper himself once backed a similar reform. His government enacted Bill C-16, the fixed-date election law, which it was claimed removed the power to call elections at times of their own choosing from prime ministers, while acknowledging the law did not affect the powers of the governor-general. While not airtight, the law seemed binding at the very least on the prime minister who instigated it. Instead, Mr. Harper, sensing political advantage, disregarded his own law, sought and received dissolution of Parliament on Sept. 7, 2008, a year ahead of the fixed date.
Prorogation is or could be a more dangerous political tool than dissolution, and a more effective reform can be envisaged. A limit could be set, for example, on the length Parliament could be prorogued. Similarly, if advice to prorogue Parliament came not from the prime minister, but on an address of Parliament, Mr. Harper would have been unable to slip his request for prorogation through just before New Year's with a curt telephone call to the Governor-General. He would have had to bring the matter before the House of Commons for a debate and vote. Only when armed with House support could the request have been made. It does not violate the principles of the constitution for the House of Commons to control its own schedule. According to the Queen's University political scientist Ned Franks, the British Parliament has twice legislated on prorogation, in 1867 and 1918. The NDP has already indicated it will pursue legislative means to rein in the prime minister's misuse of prorogation, but MPs of all parties have a responsibility to resist submission, as Junius said, “to arbitrary measures.”
It is time for greater knowledge and understanding about the unwritten rules of the constitution, and more legislative control over some of those rules. It is similarly time for some existing parliamentary procedures to be reformed, such as to permit parliamentary committees to freely elect their own chairs without the heavy hand of the prime minister, and to eliminate the arbitrary manner in which committee membership is changed by party whips. Committee members should be allowed to carry out their essential democratic work off leash, as it were. It is time, in other words, before a further diminution of its authority leaves it irrevocably weakened, for Parliament to be restored to its position as the ultimate sovereign body for Canada.