Philippe Lagassé is associate professor at Carleton University. He researches the Westminster system.
Prime Minister Justin Trudeau has announced that Parliament will be prorogued until late September – and Canadians can be forgiven for thinking that this move is suspect.
Ever since Stephen Harper advised governor-general Michaëlle Jean to prorogue parliament in 2008, saving his minority Conservative government, the very word “prorogue” has been associated with controversy. Last fall’s aborted prorogation of the British Parliament by Prime Minister Boris Johnson, which the United Kingdom Supreme Court quashed in an unprecedented ruling, has only fuelled the sense that this is an illegitimate power.
Prorogation’s bad rap probably explains why Mr. Trudeau avoided proroguing the last Parliament altogether; nothing prevented him from proroguing, but not doing so set him apart from his predecessor. His decision now to prorogue until Sept. 23 – amid the simmering scandal over WE Charity and after the resignation of his finance minister – looks cynical as a result. Given that Parliament was to return in late September anyway, a prorogation of just over a month may not seem all that dramatic, but the fact that the committees holding hearings into the WE Charity will no longer be meeting is significant. Whether this is a fair characterization depends on the government’s ability to show it was necessary, and for Canadians to decide if they agree.
But the mere mention of the word “prorogue” need not, on its own, trigger alarm bells. Prorogation does serve a purpose, and is usually deployed without nefarious intent. It is important to judge each prorogation on its own merits.
Prorogation ends a parliamentary session, allowing a new one to start. When a session is ended, all parliamentary business stops: Government bills that haven’t become law must be reintroduced, unless the House of Commons reinstates them, and committees cease to function, their inquiries halted, and they must be reconstituted when the new session begins. When Parliament resumes, the governor-general reads a new Speech from the Throne outlining the plans for the new session – allowing the government to highlight new priorities, with the deck cleared of parliamentary business to make room for them – before the legislature’s business gets under way again.
Prorogation, then, is an act of renewal within a single parliament. Used in this way, it shouldn’t raise eyebrows. If a parliament has been in session for a while, it may be time for a refresh.
The problem is that this power can be abused, especially in minority parliaments, to allow prime ministers to delay scrutiny, avoid votes of non-confidence or otherwise undermine the will of parliament. Mr. Harper’s 2008 prorogation prevented the opposition from bringing down his government and replacing it with a loose-knit and ultimately unstable coalition. On Dec. 30, 2009, Mr. Harper again prorogued Parliament, until March 3, 2010, leading critics to charge that he was interfering with a committee inquiry into Canada’s handling of Afghan detainees. The U.K. government’s attempted prorogation last year, meanwhile, was a naked effort to take back control of Brexit from Parliament.
Prorogations that last weeks or months are usually bad news. There’s no need for prorogations to last very long – Canada has no standard length, but the British average is eight calendar days – and Parliament should sit as often as it can. A long prorogation is obviously made worse when committees are looking into troubling government behaviour. Ending a parliamentary session when a vote of non-confidence is looming amounts to a constitutional crisis. When used in these ways, prorogation is the effective equivalent of what U.S. constitutional scholar Mark Tushnet calls “constitutional hardball,” employing legitimate powers in ways that violate wider norms.
Is there a way to prevent prime ministers from abusing prorogation? The 2008 prorogation led many to argue that Ms. Jean should have rejected Mr. Harper’s advice to prorogue. Had she done so, that would arguably have prompted Mr. Harper’s resignation, leading to a change of government before the Commons formally withdrew confidence. Tempting though it may be, expecting the viceregal representative to refuse a prime minister’s advice to prorogue – even if the government appears on the cusp of losing confidence – risks dragging the governor-general into partisan frays. In the end, Ms. Jean judged – rightly – that it was for the Commons to decide Mr. Harper’s fate, rather than make that decision herself.
Another option is to regulate prorogation in law. While the British Parliament can do whatever it wants with the prorogation prerogative, our legislature is more constrained, given our codified constitution. The power to prorogue Parliament belongs to the office of the governor-general under paragraph 41(a) of the Constitution Act, 1982, meaning that passing a law to terminate or modify the power would require the unanimous consent of all the provinces and the two Houses of Parliament. Imposing statutory limits on prorogation without a constitutional amendment would be legally dubious.
In a Canadian context, preventing improper prorogations depends on making them politically costly. Our heads of government should be named and shamed if they advise extended, tactical prorogations rather than short, purposeful ones. This isn’t a great solution, but it may be the only one we’ve got – now, it’s up to Canadians to decide if this prorogation is too long given the Trudeau government’s troubles.
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