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Liberals release proposals to make prorogation harder to do, but is it enough?

The hinted at reforms to curtailing the prorogation power of the Prime Minister was released by the Liberal Party and Michael Ignatieff at Ottawa today. Here’s an excerpt of the news-release with the proposals they’ve put forth:

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.

….Liberals intend to submit their proposal to the House Standing Committee on Procedure and House Affairs for consideration by all parties, and will then bring forward amendments to the Standing Orders of the House of Commons, in the form of legislation if necessary.

My initial reaction is that I’m pleased to see we’ve sat down and come up with some detailed proposals. I think these are a good starting point for debate, and a step in the right direction.

My issues I have with these proposals as they stand now are that a majority government would still be able to ram through prorogation if it wanted to. In that scenario, Harper would have been no more justified in proroguing Parliament now with a majority vote of Parliament then he was in doing so arbitrarily by telephoning the Governor-General (the one saving grace over this would be the stipulation that Committees could still sit, but again, in a majority situation where the govt controls the committees, they would probably not vote to continue sitting).

The other issue us: how legally binding is this going to be on the PM of the day? Would it be the same thing as the “fixed-date election law”, which Harper turned around and ignored when he thought it politically convenient to do so, and which the courts said he was legally allowed to do?

The only real way I can see to enforce these or other proposals on prorogation limits (unless someone wants to tell me otherwise), is to constitutionally enshrine them; re-open the Constitution and amend it to put these or something similar to these in there. That would ensure compliance, but unfortunately, there probably will be no stomach to do that (Harper doesnt even have the stomach to do so for Senate reform). We don’t have any Pierre Trudeau’s out there in any political party bold enough to try that (though we do have his son in one party).

So, in summary, my reaction is bravo to the Liberals for putting these out there for discussion and to show they’re doing more then just taking advantage of Canadians anger at Harper’s stunt; they’re trying to come up with solutions for future rules on making sure prorogation isn’t abused. There are lots of sensible things in here, but the majority government situation is a big loophole, as is whether PM’s can simply ignore these if they want to. Those will need to be addressed, I think.

It will be also interesting to see what Christopher White of CAPP (and the CAPP members), and folks like Colin Carmichael of No Prorogue think of these proposals. I’ll be watching for those reactions.

UPDATE: My friend Steve V is more effusive in his praise of these proposals. Don’t get me wrong. I’m as pleased as him we’re actually putting these out there when last week we were openly saying we probably didn’t need legislation on prorogation. I just see some loopholes in what we Liberals have proposed. In a sense, I get the feeling where these proposals would be most effective is that it would allow public opinion time to gauge whether the government was justified in doing a prorogation or not, and force the government to have a public debate in the House on its request. I’m just not sure that this alone would be enough to dissuade future governments, particularly majority ones, from abusing the prorogation power to aid it politically, as Harper has done twice now in a minority government situation.

9 comments to Liberals release proposals to make prorogation harder to do, but is it enough?

  • I am not a member of either the Liberals or NDP. I do prefer the NDP proposal because it is simple and straight forward. While I think the NDP recognizes that the governor-general could prorogue parliament at any time, its proposal recognizes that parliament should have a voice in expressing support for any prorogation. As for the Liberal proposal, there are too many exceptions in not letting parliament have legitimacy in deciding on prorogation. Also constitutionally, the PM has no standing. Everything is done through the approval of the governor-general. How could a Liberal private-member’s bill be written that recognizes the executive through the governor-general while not mentioning the prime minister?

    In my opinion, the problem is not prorogation alone. It’s the selection of our governor-general. Who chooses this person? Officially, it’s the Queen; unofficially, it’s the prime minister. Should parliament select the governor-general/president or should Canadians vote for a president? Should we just keep the same system? Today’s GG is only responsible to the Queen. Should we have an executive leader responsible to parliament or Canadian citizens directly?

  • slg

    Wilf Day – a lawyer from Port Hope and a staunch NDP’r. Wouldn’t be happy with any proposal other than that of the NDP.

    • Yes, I’m a long-time New Democrat but local people trust me to be non-partisan when required, which I got lots of practice doing during 12 years as a school trustee, and currently as a board member of Fair Vote Canada with several Liberals and Conservatives.

      I don’t see Ignatieff’s proposal as significantly different from what Jack Layton said, and I expect they can agree on a composite. However, I may be mistaken: perhaps Ignatieff’s proposal needs to be improved, as Scott implies.

      I see no constitutional issue. Every law binds the Governor-General-In-Council (the cabinet). No one has suggested the new rule should affect the GG’s reserve power to refuse prorogation in extraordinary circumstances — although that reserve power would never be needed if the House had to approve prorogation.

      I personally don’t want to limit the discussion to prorogation. I favour the German rule that early dissolution requires a vote of the House. Our so-called fixed date election law can be amended so it means what it seems to say. We would then have a rule that anyone can understand: the House adjourns, prorogues and dissolves by its own motion.

      That’s actually my main concern: simplicity. We saw 13 months ago that huge numbers of Canadians don’t understand the parliamentary system. This is partly the fault of the news media who rush to be the first to declare “who won?” on election night, even when the right answer is “no majority” or as the British news media say “no overall control” as they commonly say of municipal elections run on party labels.

      So if it’s not simple, the news media will over-simplify it and confuse the public — again.

  • Harper did no break the ‘fixed-date election law.’ He simply always lied about what it actually said (PM must call an election at least every four years).

    Harper, with that law, seems to agree that the PM can be forced to use his powers by Parliament, which is the same as limiting his power. So it may be possible to limit how the PM uses prorogation.

    The problem is, what if the PM asks anyway? The GG can’t be bound by an Act of Parliament.

    There has to be an enforceable penalty.

  • rww

    Looking at the conditions as they stand I can think of no reason why we should go without a Parliament for more than a week so I would change the maximum prorogation period from a month to a week.

    Adding provisions preventing the government from amending the Parliamentary calendar without near unanimous consent would prevent the government from recessing the House to avoid facing the opposition.

    That being said I do not think you can really constitutionalize or even legislate that a government not abuse the prorogation power because it is not so much a matter of what they do but why they do it. That is why we give the GG discretionary power.

    What we need is a constitutional convention that when there is a conflict between the wishes of the Prime Minister and a majority of the House of Commons, that the wishes of House of Commons (as made known to the GG in any way) must prevail.

  • Big Winnie

    I think one way to prevent majority governments from being able to prorogue parliament is to have it worded that unless the governing party gets 100% of the vote from the House, then they are unable to prorogue.

  • Wilf Day

    It has more fine print than I expected. For some reason, prorogation will be allowed even without the consent of the House, provided that

    1. More than a year has passed since the last throne speech, AND

    2. The prorogation is for no more than a month, AND

    3. No confidence matter has been scheduled, AND

    4. The Prime Minister has given 10 days written notice with reasons, AND

    5. The House has had the opportunity for a full debate (but not a vote.)

    All those conditions would rarely be met. I would think it simpler to just require the consent of the House in all cases. But the exception seems harmless enough that I’m not that concerned, at first glance. But I stand to be corrected. If the exception is so harmless, why even bother with it?

  • SteveV

    Just to add, I noticed you posted these proposals on the FB group. Quite a different reaction from “just trust us” last week. That says something to me.

  • SteveV

    “In a sense, I get the feeling these proposals would be most effective in that it would allow public opinion time to gauge whether the government was justified in doing a prorogation or not. I’m not sure that would be enough to dissuade future governments,”

    Isn’t that rub though Scott? These proposals force the government into the open, they must justify proroguing and all the implications. Public opinion is a key consideration, if the government knows scrutiny awaits, a slower process that allows Canadians to digest the rationale, they better have good reasons. For instance, this prorogue never happens if these rules were in place. Imagine the opposition, imagine the debate, they wouldn’t even consider. Harper tried to hide this prorogue with the new year’s eve decision, he didn’t want any light of day.

    As for majorities, I’m not sure what you do there. At the very least, the government still must bring its reasoning forth, but ultimately they have the power. It still protects a basic premise about our democracy, namely the majority rules.

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