On Wednesday, Ontario MPP Catherine Fife introduced a private member's bill that is meant to curtail the ability of Ontario premiers to advise the Lieutenant-Governor unilaterally that the Legislature be prorogued.
Instead, the bill requires that a premier be prohibited from approaching the Lieutenant-Governor "unless the Assembly has adopted a resolution in support of the prorogation" and that the Lieutenant-Governor be advised "to call it back within the time frame set out in the Assembly's resolution."
Ms. Fife's bill is reminiscent of a motion tabled in 2010 by Jack Layton which read: " That, in the opinion of the House, the Prime Minister shall not advise the Governor General to prorogue any session of any Parliament for longer than seven calendar days without a specific resolution of this House of Commons to support such a prorogation."
So, if the bill becomes law, the Ontario prorogation problem is solved, right? The NDP's website declares that the "New Democrat Bill would stop governments from playing politics with prorogation". Not quite. There are at least two concerns with Ms. Fife's approach.
First, there would be disagreement over whether the private member's bill can actually bind a premier's ability to advise the Lieutenant-Governor. The power to prorogue is a royal prerogative power that is held legally by the Lieutenant-Governor. In practice, a premier advises the Lieutenant-Governor (or a prime minister to the Governor General) to prorogue. In Canada, no Lieutenant-Governor or Governor General has ever refused the advice of a premier or a prime minister to prorogue, although recently Ontario LG David Onley allowed that in exceptional circumstances, advice could be overruled "in a heartbeat." What constitutes those exceptional circumstances is not known. Serious scholars have differing opinions on how these powers can be circumscribed.
The most effective method of reform with respect to the prerogative powers, including prorogation, would be either via the explicit adoption of a new constitutional convention or a written constitutional amendment. The federal fixed election date law is a prime example of the consequence of a half-measure reform that has no bearing on the constitution. The law came into effect in 2007, but it did not stop the Harper government from calling a premature election in 2008.
Second, even if Ms. Fife's bill could constrain the actions of a premier, the constraint would be effective only in minority government situations. By requiring the passage of a motion requiring just a simple majority, the norm of party discipline would dictate that any majority government would pass such a motion with ease. In Canadian politics, leaders very rarely face open dissent on votes.
But no premier, regardless of his party's strength in the House, ought to have the capacity to purge the assembly to meet his own political goals. Think it through: Would Mr. McGuinty's prorogation in the fall of 2012 , allowing his government to escape the scrutiny of the House for an indefinite period while his party chose a new leader, be more palatable if he had a majority government? Certainly not. Whether a government holds a majority or a minority of seats, ongoing scrutiny is necessary, albeit not sufficient, for an informed electorate.
While our electoral system can manufacture some awfully large majorities, a two-thirds majority threshold, in most cases, would ensure that at least one other party would have to support a premier's request to prorogue. Where prorogation is routine (e.g., breaking up a legislative agenda), securing the necessary support should not be a challenge. But, where prorogation is being used as a partisan tool, a government shouldn't be surprised if it can't find a dance partner.
One hates to sound overly negative. Mr. Fife is to be commended for defending the principles of responsible government. Democratic reform has not come easily in this country. And even if the motion does not bind Ontario premiers or works only during minority governments, the symbolic value of the PMB does signal the principle that legislatures – not the executive – should be in control of their own operation to ensure they have the ability to fulfill their fundamental responsibilities to review government legislation, to scrutinize government administration and to extend or withdraw confidence as it deems fit. If nothing else, this may carry some moral weight.
But a more robust effort is required. As explained in Democratizing the Constitution: Reforming Responsible Government, meaningful reform with respect to prorogation would require that: (i) a two-thirds majority in the legislature must approve prorogations before the premier goes to the Lieutenant-Governor; (ii) we need either a formal constitutional amendment or the explicit adoption of a constitutional convention to this effect. Anything else is a half-measure.
Lori Turnbull is an associate professor of political science at Dalhousie University. With Mark D. Jarvis and the late Peter Aucoin, she is co-author of Democratizing the Constitution: Reforming Responsible Government, winner of the Donner and Smiley book prizes .