Reform Suggestion re. Prorogation: Time Limit or Vote

Kady O'Malley had an interesting idea on prorogation, easy for the House to make law: a seven day maximum. One of her commenters, Rob in TO, improved on that a bit, I think, by adding "House approval needed for longer". I would endorse and suggest that general idea. Another commenter, BSouth, offered a constructive suggestion that went in opposite direction, to the GG. All three proposals are reproduced below my commentary. I know other legislatures have some orders that constrain its use. I don't know all of the academic debate.

I am loath to limit traditional prerogatives - one of the strengths of our system is its flexibility. It is not hard to imagine a situation in which a minority government had indeed concluded the vast majority of its agenda, it was the end of the Spring session, and while the House would be in recess, the other parties would be looking to engage in bad faith harassment by forcing Summer committee meetings which could be used to slander government. I'm remembering behaviour of opposition re. Sgro & supposed stripper scandal, and other such episodes when innocent ministers, whose governments had followed the proper forms, allowing inquiries, investigations, etc., were still attcked, reputations diminished, and no-one ever apologised to ministers in question, and of course damage was done, however innocent the individual. I can see why it might be fair for a government, given such behaviour, to prorogue over the Summer, instead of recessing. And I am sure there are other unconceived situations lurking, in which PM's/GG's discretion would be no bad thing.

But the fact remains, we need to guard against the example of its current authoritarian abuse.

Since a majority government could change the rules anyway, one shouldn't try too hard to come up with a mechanism that would stop them, since for it to work it would be surely be too inflexible a restriction under normal circumstances. But this reminds me of a suggestion I've made before, that such matters, as well as appointment of Officers of Parliament, ie. all those questions that should be as non-partisan as possible, build on QC example and require 2/3 majority of House, including Official Opposition. The Official Opposition proviso would be my addition, remembering Dief, Mulroney, McKenna & Campbell landslides. Occasionally, government members represent more than 2/3 of legislatures. But there can always be an Official Opposition, if the Orders are written to recognise one, even absent official party status. First, which grouping has most MPs, and, if a McKenna wipe-out, then highest percentage of popular vote. So prorogation limits could be one of those rules that can only be changed with accord of 2/3 & Official Opposition. If parties incapable of agreement on what should clearly be non-partisan rules & appointments, then Govt can call an election, as always. One would expect the political price for incalcitrance in clearly non-partisan matters would discourage such behaviour.

Rob in TO said "There may still be a good reason to prorogue for longer than 7 days, in which case it should be allowed but require some justification - and a vote in parliament." That general thrust sounds good to me: A time limit to how long House can be prorogued without House approval. Whether more or less than seven days, whether it should be X number of days or business days, I leave up to the experience and good sense of parliamentarians.

But the basic idea is sound, the PM maintains his prerogative, which, as O'Malley says, should not normally require lengthy prorogations, and if there is some valid reason for longer, the House must concur. In the imagined previous example, with the minority government at the end of the Spring, the Opposition would have to consider the matter being investigated to be serious enough to merit voting against prorogation in the full House. If they had been behaving scandalously, if it was unfounded slander over nothing, they would pay the political price of having openly voted to do so. Just as governments have suffered for unjustifiable prorogations, so the Opposition, in this scenario, would suffer for preventing a justifiable prorogation: Canadians would be wary of politicians forcing hearings over the Summer. It would be a risky move and mean the Opposition was genuinely concerned that the matter in question was of great, urgent and continuing import. And if it wished to maintain the country's confidence in its investigations, it would have to behave accordingly, with seriousness.

This is the best I can do, for now, from what I know. If others have better suggestions, they should make them known.

O'Malley's Suggestion:

I came up with what I think could be an eminently sensible proposal for the use of the prorogation prerogative by future (or, indeed, current) prime ministers: Set the maximum period of time during which parliament can stand prorogued at seven days.

The PM would retain the ability to "recalibrate" his government whenever he feels the need to do so without encroaching on the ability of parliament to do its job. The intention to prorogue could be announced at any point -- like, say, the day that the Olympic men's hockey team is being announced -- but the proclamation itself would not be signed until no more than seven days before the scheduled Speech from the Throne.

You could, I suppose, make the seven day pause mandatory, which would prevent a future prime minister from invoking it on the spot to dodge a looming confidence vote, but that would almost certainly require a constitutional amendment, and you know what a bother that can be. Plus, that would seem to come perilously close to infringing on his privilege to exercise the power to prorogue whenever he -- or she -- sees fit.

Really, though, I can't think of any compelling reason why parliament should be deliberately idled for longer than that -- outside of an already scheduled adjournment, of course, during which the Speaker retains the power to recall it if necessary, and committees can still meet should members desire to do so.

Rob in TO wrote: Posted 2010/01/07 at 2:56 PM ET
I'm with you on this. The idea that the PM can, on a whim, just stop parliament from functioning in any way for an indefinite period of time seems entirely undemocratic.

There may still be a good reason to prorogue for longer than 7 days, in which case it should be allowed but require some justification - and a vote in parliament. it's clear that this prorogation is intended to take the spotlight off of Canada's dirty laundry during the Olympics, which is a stupid (though politically expedient) reason to bring government to a halt for a few months, or even a few days. If this power can be used without justification, it will be, which virtually guarantees the power will be abused (as it is being abused now).

BSouth wrote: Posted 2010/01/07 at 3:00 PM ET
Prorogation should be the exception not the rule. If a PM wants to prorogue the GG should ask that the PM work for a minimum of 7 days with the other elected members of Parliament to work out within Parliament the issue and if it cannot be resolved and prorogation is the only recourse then that is the time for the GG to accept the request and not rubber stamp it with a YES but look for alternative government options. If the government can continue under someone else's stewardship then Parliament stays in session and a new PM is sworn in. The GG has the role to keep Canadian Parliament working and should not acquiesce to a "get out of jail free" request from the PM because he is not willing to work it out within Parliament.

Every voting Canadian should familiarize themselves with the role of the GG and the PM and of the Canadian Parliamentary system pertaining to prorogation. I suggest they read discussion paper No. 7 from January 2009 by Andrew Heard at the University of Alberta Centre for Constitutional Studies regarding the pros and cons of Harper's prorogation request from last year.