Prorogation Limits: Liberal Proposal Lacks Substance, NDP Proposal Lacks Form

Posted by Devin Johnston on January 25th, 2010

Canadian citizens are waking up from a long slumber. More than 27,000 people took to the streets this past weekend, in protest of Stephen Harper's prorogation of Parliament. Over 200,000 are voicing their concerns through emerging media. Against all odds, Saturday was indeed "a great day for democracy in Canada".

The NDP and Liberals have taken notice. Last Wednesday, the NDP announced plans to introduce legislation that would limit the power of the Prime Minister to request the prorogation of Parliament without the consent of the House of Commons. Today, the Liberals unveiled similar plans to limit the power to prorogue by way of amending the Standing Orders of the House of Commons.

As the Jurist pointed out, there are significant differences in terms of the substance of the two proposals. While the NDP's proposal would absolutely prohibit prorogation without the consent of the House of Commons, the Liberal proposal would allow for unilateral prorogation where:

1. at least one year has elapsed since the last Speech from the Throne;
2. the Prorogation is less than one month in length; and,
3. no confidence votes have been scheduled in the House.

In terms of the substance, I think that the NDP has put forward a stronger proposal. As the Jurist argued, the Liberal proposal is unnecessarily weak:

In effect, the Libs have chosen to build in loopholes for little apparent reason. Where the NDP's plan would require the consent of the House of Comments for any prorogation request, the Libs want to reserve some power for the PM to order prorogation even in the face of majority opposition. And the criteria chosen aren't that far off from the incident which has called attention to Harper's abuses in the first place: if Harper had allowed the House of Commons to sit for just a couple of days in January of this year, he'd then have reached the one-year mark and been entitled to request prorogation without a vote.

A cynical observer might suggest that, despite protestations to the contrary, the Liberals still view themselves as "Canada's natural governing party". It may be the case the Liberals are attempting, at least in part, to preserve at least some unilateral government power in naive expectation that they will some day return to power with a majority government. This is precisely the reason that the Liberals continue to stonewall any move toward proportional representation, even though they currently stand to benefit from such a move.

In contrast, the NDP's proposal is more comprehensive and principled. It posits that the power to prorogue Parliament should fall to the House of Commons rather than to the government. This resonates with the idea that the people's representatives alone should have sole authority to determine if and when a break in the legislative calendar is appropriate.

The proposals also differ in terms of the mechanism used to give effect to the new rules. The NDP's proposal would take the form of an Act of Parliament, whereas the Liberals would proceed by way of an amendment to the Standing Orders of the House.

As a few bloggers have pointed out, there is reason to be concerned in both cases that the new rules may not be legally binding on the government (much like the Harper government's failed attempt to implement fixed election dates in Canada). More specifically, since the discretion to prorogue Parliament technically falls to the Governor General (albeit on the advice of the Prime Minister), Parliament cannot limit that discretion without amending the constitution (incidentally, a constitutional amendment to limit the powers of the Governor General requires unanimous consent of the provinces).

Having said that, the constitutional implications of either proposal will depend heavily on both the wording of the proposed instruments and the interpretation thereof. Unlike the power to dissolve Parliament and call a federal election, the question of prorogation may be characterized as merely the procedural business of the House. In fact, the Conservatives have defended the decision to prorogue on the grounds that it is merely routine House of Commons procedure.

If this is a fair characterization, then there may not be a need for a constitutional amendment in order to give effect to the new rules. The Parliament of Canada Act gives Parliament the exclusive authority to make an amend its own rules of procedure. That act forms part of the Constitution of Canada in virtue of its inclusion in the Schedule to the Constitution Act, 1982. Section 3 of the Parliament of Canada Act stipulates that it the Crown retains the power to prorogue or dissolve Parliament. However, by constitutional convention, prorogation only occurs on the advice of the Prime Minister. While the House cannot limit the power of the Governor General to prorogue Parliament, it can prevent the Prime Minister from requesting a prorogation without the consent of the House (that is, assuming that the request to prorogue is a routine matter of Parliamentary procedure, as the Conservatives claim).

Both the NDP and the Liberals will have to be cautious in drafting their proposed instruments. My reading of the relevant law is that the constitutionality of any new rules will depend on the ability of the mover to characterize the Prime Minister's discretion to request a prorogation as a routine matter of House procedure. If this is true, it makes sense to proceed by way of an amendment to the Standing Orders of the House of Commons, as the Liberals are proposing. This approach is consonant with the idea that this is an issue of tweaking the procedural rules of the House, whereas proceeding by way of legislation connotes changes to the substantive constitutional powers of the Prime Minister and/or Governor General.

In the end, I think that both approaches have some merit. While I prefer the substance of the NDP's proposal, I think that the Liberals are on stronger footing constitutionally (depending, of course, on the specific language of their proposed changes to the Standing Orders). I echo the Jurist's sentiment that the best outcome here would be for both parties to work together on a joint proposal that incorporates the strongest aspects of both approaches. To that end, it is promising the see that Jack Layton has reacted well to the Liberal announcement and is planning to discuss the matter with the other opposition party leaders in the near future. Let's hope that Layton's co-operative approach is reciprocated by Gilles Duceppe and Michael Ignatieff.

Spread the word and fan the winds of change: