Are current techniques of parliamentary management such as prorogation and omnibus bills an affront to meaningful democratic traditions? Yes. But our problem in Canada is that we have weak and cumbersome democratic traditions.
Our national and provincial parliamentary systems still reflect the iron conventions of responsible government as they evolved in the 19th century. The chief of these is that a ministry with the confidence of a legislature can do anything it wants within the limits of the Constitution. And our Constitution imposes very few limits.
A majority government in a Canadian legislature will get any kind of bill it wants to passed into law. Given that blunt reality, it hardly matters whether bills deal with one biscuit at a time or a dog’s breakfast all at once. Yes, debate becomes a mere formality, but that’s what debate always has been in majority parliaments. The executive has its way, and opposition legislators are powerless. In the 19th century, powerless MPs took solace in getting drunk at the parliamentary bar. Now all they can do is whine to the media before going out for drinks.
Similarly, our tradition is that a ministry in control of a legislature can prorogue it at will – at least or until it’s seen to be thwarting our most important check on legislatures: an election. A governor-general or lieutenant-governor who denies a first minister’s request for prorogation would do so at great peril, putting the future of the office on the line. He or she would only do it if it seemed that the right of the people to choose their legislators was at stake. This was not the case when Stephen Harper prorogued Parliament in 2008 and 2009, nor is it for the moment an issue with the prorogued Ontario legislature.
In olden times, most legislatures sat for only a few weeks at a time, and prorogation was hardly noticed. Modern citizens, however, are objecting to prorogation because they have come to believe that their well-paid legislators should be constantly in session, rather like teachers in a classroom. Nowadays, we believe legislators aren’t earning their money if they’re not considering laws – though we simultaneously dismiss most legislative debate as unproductive, irrelevant and time-consuming.
To make our system more modern and democratic, we almost certainly need to introduce new, democratic checks on the power of ministries to control legislatures. What would these look like?
Can we use the courts? It’s hard to imagine extending our judicial review of legislation to a review of legislative procedure itself. Unelected judges would have far too much power.
Why not pass new laws about procedures? It’s hard to imagine any ministry sponsoring such laws, which, in any case, could be repealed by the next majority government.
Could we have better referees? Why can’t the Queen’s representatives, the governors-general and lieutenant-governors, make legislatures behave? Why can’t they use their residual powers to refuse to accept bad laws or bad advice? Perhaps they should (I think Ontario’s Lieutenant-Governor should have insisted on a time limit to prorogation), but their situations as unelected appointees are much too precarious for this to happen except in the most dire crises.
The only way to strengthen the referees of our system is to give them some form of democratic legitimacy through popular election. All such proposals collide with the power of romantic monarchism in the country, reinforced by Canadians’ conservative dislike of remedying the defects of democracy with more democracy.
So, faute de mieux, we fall back on the democracy we have. If you think the politicians to whom we entrust our confidence are seriously abusing their power, then you should toss them out at the next election. In 2011, Canadian voters concluded that Stephen Harper’s sins were not so serious after all – and gave him even more power.
Now in Ontario, as in British Columbia, we’re going to see. If the Ontario Liberals were to move speedily to change leaders and clean up their scandals, we might swallow our qualms about Dalton McGuinty’s prorogation manoeuvre. But their interest in absurd dawdling and cover-up, amounting to abuse of public trust, is likely to result in a terrible reckoning at the polls, possibly the complete obliteration of their party.
Our democracy badly needs an intelligent makeover for the 21st century. But even our current clunky and often misunderstood system still respects and responds to the sovereignty of the people. We do have the power to bring the politicians to their senses – or to oblivion.
Michael Bliss, professor emeritus at the University of Toronto, is a historian and author.