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onw COLUMNISTS
Ontario Must Stop "Lethal" Prorogation Disease
The Liberal leadership race and the return of the
Legislative Assembly provide an opportunity for
Ontario to protect itself from sliding away from
responsible government.
The principle of responsible government is that
the premier and ministers who lead government
are accountable to the elected legislature for
how they govern.
This principle was established back in the 1840s
when the Crown agreed that those who “advise”
it on how to use the executive powers of
government must have the support of a majority
in the elected legislature.
That was the moment when government in this
part of the world became democratic.
Last October, when Premier McGuinty asked the
Lieutenant Governor to prorogue the Legislative
Assembly and the Lieutenant Governor acceded
to his request, the principle of responsible
government was put very much in jeopardy.
McGuinty sought prorogation because he
wanted to be free of debate in the Legislative
Assembly while his government negotiated
highly contentious matters with teachers' unions.
That was an improper reason for closing down
the Legislative Assembly, the body to which he
and his government are accountable.
It was even worse that Premier McGuinty’s
government did not have a majority in the
legislature.
If that use of prorogation were to become normal
and acceptable, governments could simply close
down the elected legislature whenever they get
into political hot water.
I can not think of a surer recipe for ending
responsible government in Ontario.
In light of the threat to responsible government,
it is important to know where Premier
McGuinty’s would-be successors stand on
prorogation.
Interviews of the Liberal leadership candidate
conducted by Ontarionewswatch.com’s Susanna
Kelley indicate that there is considerable
concern about governing without a legislature.
While all the candidates are committed to
recalling the Legislative Assembly as soon as
possible (in Sandra Pupatello’s case that would
be only after she runs in a bye-election), only
three of them - Eric Hoskins, Gerard Kennedy
and Kathleen Wynne - are clearly troubled by
Premier McGuinty’s use of prorogation.
If one of those three becomes Liberal leader and
premier of Ontario next week (and for the sake
of Ontario democracy I sincerely hope one of
them does), is there anything to protect Ontario
from this misuse of prorogation beyond their
promising that they will not “pull a McGuinty?"
Here we should turn to the NDP. One of Jack
Layton’s legacies to our country was a motion
he put to the federal House of Commons in
March 2010.
The Layton motion required that a request by
a prime minister to prorogue parliament for
more than a week must have the consent of the
House of Commons.
The motion won the support of all opposition
MPs, who at that time had more seats than the
Conservatives.
But because it was opposed by the Government
it did not become established as a binding rule.
Unlike the federal parliament, Ontario’s
legislature has a precedent for legislating with
respect to prorogation.
Back in 1879, section 5 was added to the
Legislative Assembly Act, stating that “It is
not necessary for the Lieutenant Governor in
proroguing the Legislature to name a day to
which it is prorogued…”
That legislation still stands, and it suggests that
the Lieutenant Governor could name a day
when prorogation must end.
The 1879 legislation has turned out to give no
protection to responsible government.
David Olney, our Lieutenant Governor,
chose not to set any time limit on McGuinty’s
prorogation and took the position that in our
democratic age, while he could warn and advise
the premier, he could not refuse his advice.
So the time has surely come for Ontario’s
Legislative Assembly to place effective
legislative limits on the use of prorogation.
We cannot count on informal constitutional
convention to protect responsible government.
The Ontario NDP are proposing legislation along
the lines of Jack Layton’s proposal.
That proposal should receive the attention of the
Legislative Assembly as soon as it is recalled.
It will be important to consider the details of any
proposed legislation. But it is essential that work
on such a proposal proceed quickly.
Since the Harper Government’s questionable
use of prorogation, the misuse of prorogation
threatens to spread like a virus in Canada.
Let us hope that Ontario’s Legislative Assembly
takes the first step in reversing the spread of a
disease so lethal to parliamentary democracy
and responsible government.

Ontario Must Stop "Lethal" Prorogation Disease

 

by Peter Russell

The Liberal leadership race and the return of the Legislative Assembly provide an opportunity for Ontario to protect itself from sliding away from responsible government.

The principle of responsible government is that the premier and ministers who lead  government are accountable to the elected legislature for how they govern.

This principle was established back in the 1840s when the Crown agreed that those who “advise” it on how to use the executive powers of government must have the support of a majority in the elected legislature.

That was the moment when government in this part of the world became democratic.

Last October, when Premier McGuinty asked the Lieutenant Governor to prorogue the Legislative Assembly and the Lieutenant Governor acceded to his request, the principle of responsible government was put very much in jeopardy.

McGuinty sought prorogation because he wanted to be free of debate in the Legislative Assembly while his government negotiated highly contentious matters with teachers' unions.

That was an improper reason for closing down the Legislative Assembly, the body to which he and his government are accountable.

It was even worse that Premier McGuinty’s government did not have a majority in the legislature.

If that use of prorogation were to become normal and acceptable, governments could simply close down the elected legislature whenever they get into political hot water.

I can not think of a surer recipe for ending responsible government in Ontario.

In light of the threat to responsible government, it is important to know where Premier McGuinty’s would-be successors stand on prorogation.

Interviews of the Liberal leadership candidate conducted by Ontarionewswatch.com’s Susanna Kelley indicate that there is considerable concern about governing without a legislature.

While all the candidates are committed to recalling the Legislative Assembly as soon as possible (in Sandra Pupatello’s case that would be only after she runs in a bye-election), only three of them - Eric Hoskins, Gerard Kennedy and Kathleen Wynne - are clearly troubled by Premier McGuinty’s use of prorogation.

If one of those three becomes Liberal leader and premier of Ontario next week (and for the sake of Ontario democracy I sincerely hope one of them does), is there anything to protect Ontario from this misuse of prorogation beyond their promising that they will not “pull a McGuinty?"

Here we should turn to the NDP. One of Jack Layton’s legacies to our country was a motion he put to the federal House of Commons in March 2010.

The Layton motion required that a request by a prime minister to prorogue parliament for more than a week must have the consent of the House of Commons.

The motion won the support of all opposition MPs, who at that time had more seats than the Conservatives.

But because it was opposed by the Government it did not become established as a binding rule.

Unlike the federal parliament, Ontario’s legislature has a precedent for legislating with respect to prorogation.

Back in 1879, section 5 was added to the Legislative Assembly Act, stating that “It is not necessary for the Lieutenant Governor in proroguing the Legislature to name a day to which it is prorogued…”

That legislation still stands, and it suggests that the Lieutenant Governor could name a day when prorogation must end.

The 1879 legislation has turned out to give no protection to responsible government.

David Olney, our Lieutenant Governor,  chose not to set any time limit on McGuinty’s prorogation and took the position that in our democratic age, while he could warn and advise the premier, he could not refuse his advice.

So the time has surely come for Ontario’s Legislative Assembly to place effective legislative limits on the use of prorogation. We cannot count on informal constitutional convention to protect responsible government.

The Ontario NDP are proposing legislation along the lines of Jack Layton’s proposal.

That proposal should receive the attention of the Legislative Assembly as soon as it is recalled.

It will be important to consider the details of any proposed legislation. But it is essential that work on such a proposal proceed quickly.

Since the Harper Government’s questionable use of prorogation, the misuse of prorogation threatens to spread like a virus in Canada.

Let us hope that Ontario’s Legislative Assembly takes the first step in reversing the spread of a disease so lethal to parliamentary democracy and responsible government.


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 : January 22, 2013

View all of Peter Russell's columns
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