Keep politics away from the Governor-General

This article from the Windsor Star (by Eric James, January 29, 2010) talks about the office of the Governor-General as the guarantor against future abuse of parliamentary prorogation by Prime Ministers.

This is technically true, but the practice in Canada has been to keep the considerable theoretical powers of the Governor-General in reserve, as it were, for a possible time when we would have a real crisis that our political system could not deal with. It’s a little bit like an air-bag in a car. In an emergency, it is the proper protection to have but not in every day driving; it is also messy and costly to deal with after use.

In past practice, Prime Ministers have not brought political considerations to the Governor-General for adjudication (with some very rare exceptions like the so-called King–Byng Affair of 1925). The reason for this is that if the Governor-General becomes involved in deciding political matters, then the office becomes partisan since that is the nature of political matters. The Crown, represented by the Governor-General, has remained non-political and non-partisan. When all is said and done that is the way that we, as Canadians, like it.

This is because, as a basis of our form of government, the Prime Minister holds his office because he has obtained the confidence of the House of Commons. This is the only real base for that office. The Prime Minister is responsible to, answers to the House of Commons. If the Prime Minister brings a matter to advise the Governor-General, then the assumption is that it is with the confidence of the House.

If the Governor-General has to start making determinations about the propriety of the advice that a Prime Minister is giving, then the Governor-General is becoming engaged in politics. It is legitimate for the Governor-General to do this, but whenever it would be done it would set a precedent and it would change the nature of the concept of responsible government. Like the air-bag that needs to be refitted and reset after use, so would the relationship between the House of Commons and the Crown and the role of the Prime Minister. It’s better if we do not have to go that route, if it is not an emergency that can be dealt with by the House of Commons.

When Stephen Harper brought the issue of prorogation to the Governor-General in order to avoid a non-confidence vote, a political issue was brought to the Governor-General’s doorstep. In order to avoid a political confrontation, the Governor-General agreed to prorogation. The basic problem about the Prime minister’s legitimacy in enjoying the confidence of the House of Commons was covered over without really being dealt with. It was manoeuvred off of the agenda.
A year later, Stephen Harper once again delivered a political issue to the Governor-General’s doorstep. This time the Prime Minister is advising the Governor-General to prorogue parliament in order to avoid scrutiny, difficult questions and accountability. The Governor-General faces the same issue, though. It would cause political confrontation if the Governor-General was to question whether the Prime Ministerial advice conformed to the will of the House of Commons. It is not the task of the Governor-General to test if the Prime Minister has the confidence of the House, it must be assumed since otherwise the relationship of the Crown to the Parliament would be altered.

This is why it is a positive step to have the House of Commons establish rules and procedures, either through internal regulation or by a Bill in the House. This would reassert the control that the House of Commons has over its own affairs. It is right that the Prime Minister, whose position is based on maintaining the confidence of the House of Commons, should only advise the Governor-General to prorogue with the explicit consent of the this House. It would be a step forward in rebalancing our democratic process. The Governor-General should not be asked to make decisions that the political process should be able to deal with.

The Crown, as represented by the office of the Governor-General, does stand as a final protection if we were ever in a situation that would prove catastrophic to our democracy. It’s the House of Commons that has to take control of the democratic process and the Crown should really only intervene if the legislators cannot be effective or succeed, but just like an air-bag while driving a car, the security of possible intervention by the Governor-General should only be a last resort to safety.

Liberal Plan to Limit Prorogation by Prime Minister

At the time of the rallies on January 23rd, the NDP and the Liberals were saying that they were in favour of limiting the Prime Minister’s ability to ask the Governor-General to prorogue parliament. I think the Greens favour this, too.

The NDP indicated that they would present a bill to the House of Commons to achieve this. The Monday after the rallies, there was some indication of the Liberal plan. My initial reaction to the Liberal plan was that it was too complicated and might not actually do what they said it would – that it was just rhetoric to make it appear that the Prime Minister would be limited by the legislature, when in fact the limitation would be mostly fictitious. I decided to give the proposal a little bit more consideration before judging it.

The NDP also announced that they were encouraged by the willingness of the Liberals to go in the direction of limiting the powers of the Prime Minister and the executive, and that they were actually meeting with the Liberals.

Since then the NDP has still not made public what they are considering for achieving this, it’s hard to judge their approach. When they and other parties give details, it will be possible to comment. So far there are also no specifics from the Green Party or the Bloc Québécois. We can hope that these parties will make some position known on an issue that mobilised thousands of Canadians.

In the mean time there is a sketch of the Liberal approach and I think it would be interesting to look at it and have the community comment on it.

These are my thoughts on it.

The first thing that strikes me is that the approach taken by the Liberals is to ask the voters, the citizens of the country, to trust them. This was reinforced, not only in the proposal they made, but in the announcement that Michael Ignatieff made on January 26th where he said that the Liberals were preparing a position to limit the prorogation powers of the Prime Minister and that it would become a part of their campaign platform in the coming months.

This means that they are trying to put this onto the back burner. They are saying trust us; elect us and we will change the rules.

Why the delay? With a minority parliament, and the time between now and the end of prorogation in March there is time to prepare something concrete, in preference with the other parties and with public input.

Now, to look at the actual substance of the Liberal proposal of January 25th.

The Liberals talk of six points in relation to the prorogation issue:

Of the six points cited on the Liberal page, two are listed as conditions that the Prime-minister would be required to fulfil. The other four points read more like recommendations since they talk of preventing and allowing certain things.

The first point the is that the Prime Minister is to give “at least 10 days written notice . . . of his intention to seek to prorogue” and he is also to give the reason for prorogation. This is one of the two points that the Liberals say would be required.

The second point, which is also the second point that would be required of the Prime Minister, is that the proposal to require “the issue of prorogation before the House of Commons for a full debate.”

These two requirements along with the sixth proposal form the general characteristics for the limitation of the Prime Minister’s power of prorogation in the plan that the Liberals are suggesting. This sixth point is to “allow Parliamentary Committees to continue to function” until the new parliamentary session begins.

Once again, these three points form the general characteristics for the Liberal plan to limit the Prime Minister’s power to prorogue parliament. The positive aspects of these points is that they would stop the Prime Minister from asking for prorogation while parliament was not sitting and the House of commons would be able to express itself on the request for prorogation. The fact that committees could continue to function between sessions is also a positive proposal.

The less certain aspects of these proposals are that the Prime Minister is not really forced to get the approval of the House of Commons in order to ask the Governor-General to prorogue parliament. Having a “full debate” in the House of Commons only means that members of parliament will be able to voice their position of prorogation, there is no talk of a vote on the issue. The requirement for the House of Commons to give consent for requesting prorogation are most pointedly not part of the Liberal proposal. That is the reason that they do not really address the issue of making the Prime Minister more accountable to parliament.

The only way that the House of Commons could slow down the request to prorogue would be to slow down the introduction of the debate, but in the past the government’s capacity to manipulate the agenda in parliament, even with a minority, has been quite overpowering. Just think back to when the Liberals, under the leadership of Stéphane Dion, was thwarted in its attempt to present a motion of non-confidence in December 2008. The introduction of the motion was postponed and then Stephen Harper went to the Governor-general to ask for prorogation.

The third point in the Liberal plan seems to allows for a vote by the House of Commons, since it calls for the consent of the House in order for the Prime Minister to be allowed to request prorogation within the first twelve months of a session. This means that the “consent” of the House would not be required at other times, as long as the House was informed in writing and was allowed to debate it.

The fourth point would require the consent of the House for a request for any prorogation that would last more than one month. This seems to be fairly straightforward, but it seems to indicate that consent by the House of Commons is not really central to the Liberal prorogation plan.

The fifth point states that consent from the House would be required for a request for prorogation when a vote of confidence has been scheduled. This means that if the government can manoeuvre to stop a vote of confidence from being scheduled, if “only” the notice to present the vote of confidence is given but the vote itself is not scheduled then the notice to prorogue could be issued by the Prime Minister, as in point one and the actual consent of the House would not be necessary.

After considering the Liberal plan, I can’t help but wonder why a much simpler plan was not presented. It would be less open to abuse, less prone to being bypassed. If the intention is really to put a democratic control on the process of prorogation, then why should the consent of the House of Commons to request prorogation only be mandated in the three specific cases presented in the third, fourth and fifth points of the Liberal plan? Since these three points recognise the validity of preventing a request for prorogation without the consent of the House, then why is that not considered to be the norm rather than the exception?

Here are a slightly modified set of proposals that could form a good starting point:

1. Require the Prime Minister, before making a request for prorogation, to provide written notice of his intention to do so at least 10 days in advance, together with his specific reasons for seeking prorogation;

2. Require the Prime Minister to bring the issue of prorogation, and his reasons for seeking it, before the House of Commons immediately for a full debate;

3. Unless the House otherwise consents, prohibit a request for a prorogation;

4. Allow the Committees of the House of Commons to continue to function during the period of time that Parliament is prorogued.

In the spirit of open source democracy, I look forward to examining the proposals by other parties, and hope that there will be a lot of public discussion in blogs and on web places like the Facebook group “Canadians Against Proroguing Parliament.”