Abusing Prorogation – Can It Be Fixed?

By Peter Russell

Peter RussellNearly all commentators on recent developments in Ontario politics, and probably most Ontario citizens, think that it was wrong for Premier McGuinty to advise the Lieutenant Governor to prorogue Ontario’s Legislative Assembly indefinitely so that his government could negotiate with labour unions without the distraction of debate in the legislature.

Lets be clear about the sense in which it was wrong.

It was not an illegal action for which there is a remedy in the courts.

Ontario does not have a formal Constitution setting out all the rules and principles that regulate how the province is to be governed. There are Ontario statutes that set down legal rules governing such things as the number of seats in the Legislative Assembly and elections of its members. And there are sections of the Constitution of Canada establishing the office of Lieutenant Governor and the Legislative Assembly of Ontario, and setting out the powers of all the provincial legislatures.

But you can comb through all these provisions and not find a rule about prorogation of the legislature. So in that narrow sense, Mr. McGuinty’s advice and Lieutenant Governor David Onley’s compliance with that advice were not unconstitutional.

But in Canada, as in all the countries that follow the Westminster system of parliamentary democracy, there is another part of our constitution that is less formal and not inscribed in a legal document. This part is usually referred to as the conventions of the constitution.

As the great English constitutional theorist A.V. Dicey explained, “The main purpose of constitutional conventions is to ensure that the legal framework of the Constitution will be operated in accordance with the prevailing constitutional values and principles of the period.”

Those of us who criticize the prorogation of Ontario’s Legislative Assembly believe it to be wrong because it violates the principle that government is responsible to the elected legislature.

I assume that Premier McGuinty and his colleagues believe in the principle of responsible government, but do not believe that asking the Lieutenant Governor to shut down the Legislative Assembly for an indefinite period and for their party’s political convenience is a breach of that principle.

That is the problem with constitutional conventions – they are made and enforced in the political arena, and their effectiveness depends on a consensus among the political leaders of the day.

On the question of when is a request for prorogation proper or improper, today in Ontario, we do not have a consensus.

To fix this, so that Ontario does not again have parliamentary government taken away from it by the unilateral action of a party leader, it will be necessary to move from unwritten convention to a written rule – either in the rules of the Assembly or in a statute.

Part of Jack Layton’s legacy is the motion he placed before the House of Commons in March, 2010 requiring that a prime ministerial request to prorogue parliament for more than a week have the support of a majority in the House of Commons.

Although the Layton motion was supported by a majority in the House it was opposed by the Conservatives and has not yet become part of the Standing Orders of the House.

That is a pity because the Layton motion makes good sense.

It meets the concerns of the majority of Canadians who do not want to see the assemblies they have elected and to which government is accountable shut down at the whim of the governing party leader.

It strikes me that the Layton motion is a good model for Ontario.

Opposition party leaders and candidates for the leadership of the Ontario Liberal Party should be asked whether they would support such a motion and have it inserted in a house rule or statute when the Legislative Assembly is summoned to meet again.

They might quibble over whether a week is the right length to allow for a prorogation of the Legislative Assembly without its consent.

But the important thing for we the people who want responsible government to continue in Ontario is to extract a commitment from all political leaders to rein in the unilateral power of party leaders to close down the Legislative Assembly.

Peter Russell is one of Canada's leading constitutional experts, advisor to Governors-General and Professor-Emeritus in Political Science at the University of Toronto.

About Peter Russell

Peter H. Russell is Professor Emeritus of Political Science at the University of Toronto. He is one of Canada’s leading constitutional scholars, has published widely in the fields of aboriginal policy, the judiciary and parliamentary democracy, and is a frequent commentator on Canadian government and politics. He is the founding Principal of Senior College at the University of Toronto. Peter Russell is an Officer of the Order of Canada and a Fellow of the Royal Society of Canada.
Posted date : October 23, 2012

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