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.