Prorogation as Constitutional Harm
In your spring issue, Nicholas MacDonald and James Bowden offer a novel reply to the numerous constitutional concerns raised by constitutional scholars, political scientists, and parliamentarians regarding the 2008 prorogation of Parliament. They are to be commended for providing a clear argument, calling attention to the troubling case of the 1873 prorogation, and pointing out the distinctions between asking for prorogation and asking for dissolution. Unfortunately, their argument is deficient in several respects.
The authors rely upon the 1873 prorogation of Parliament to suggest the Governor General has no discretion in matters of prorogation. They argue that in 2008, Michaëlle Jean had to follow the advice of Prime Minister Stephen Harper to prorogue Parliament. Yet, as the authors themselves point out, in the 1873 example Prime Minister Sir John A Macdonald requested a prorogation to avoid the release of a committee’s report, not to avoid a scheduled confidence vote. Whatever the consequences of releasing the report might have been for the Macdonald government in 1873, the situation in 2008 was quite different. The question before Mme Jean was whether she should prorogue Parliament and thus enable Harper to avoid a duly scheduled confidence vote that he was sure to lose. By agreeing to prorogue, she upended core principles of responsible government, and the legitimacy of Canada’s democracy became contested.
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The prorogation of parliament in 2008 left Canadians – politicians, academics, and the electorate alike – scrambling to figure out the constitutional role of the governor general. Across the country many questions were posed, but they were answered without a thorough historical examination of the practice of prorogation or an analysis of the development of responsible government in the Westminster system. The answers tended to analyze the quality of the prime minister’s advice – an issue entirely separate from the constitutional role of the governor general in Canada.
Of the scholarship on the Harper-Jean prorogation of 2008, Andrew Heard occupies one extreme in his support for the use of the reserve power in matters of prorogation and the argument that Governor General MichaÃ«lle Jean should have rejected Prime Minister Stephen Harper’s advice to prorogue in 2008.1 In the middle, C.E.S. Franks also acknowledges the applicability of the reserve power to prorogation but reluctantly concludes that “the governor general made the right decision.”2 Peter Hogg, Adam Dodek and Barbara Messamore accept that the reserve power still applies to prorogation but believe that the governor general wisely accepted the prime minister’s advice for various reasons more emphatic than those of Professor Franks.3 Professor Hogg, for instance, believes that an imminent vote of confidence suffices to activate the reserve power that allows a governor general to reject a prime minister’s advice.4 At the other extreme, Henri Brun argues that the governor general possessed no personal discretion because the reserve power does not apply to prorogation; he supports a more narrow interpretation of the power and would sanction it only in the gravest emergency.5 Guy Tremblay agrees with Professor Brun and believes that “the governor general must accede to a request of prorogation or dissolution.”6 Finally, based on the writings of the late Professor Robert MacGregor Dawson, the Harper-Jean prorogation of 2008 did not meet the constitutional test on the acceptable use of the reserve power.7 Of these scholars, only Professor Messamore devoted serious attention to the little-known Macdonald-Dufferin prorogation of 1873 and applied its lessons to the Harper-Jean prorogation of 2008; in contrast, Professors Franks and Russell invoked the King-Byng Affair of 1926, which involved dissolution and not prorogation, and therefore provides a bad example with respect to the Harper-Jean prorogation.
Continue reading “No Discretion: On Prorogation and the Governor General”