When is it legitimate for a prime minister to prorogue Parliament, and when is it not? At what point can we say a government has lost the confidence of the House of Commons? Suppose it has: what happens then?
These were just some of the questions at issue in the great prorogation crisis of December 2008. And at the heart, perhaps the most fundamental question of all: must a governor general always follow the advice of her prime minister?
The honest answer in every case is: don’t know. Or at best, it depends. For all its undoubted strengths, much of our Constitution remains unexplored territory, uncharted by law and untamed by precedent or jurisprudence.
For what it’s worth, my own answers to those questions would be as follows. It is ordinarily a perfectly legitimate exercise of his authority for a prime minister to prorogue, but the circumstances in which Stephen Harper sought to do so then—so soon after the House had returned, and in the shadow of an approaching confidence vote he seemed sure to lose—were far from ordinary.
Yet so were the circumstances of the proposed alternative: the coalition. Much breath has been wasted since then in defence of the principle of coalition government, or the legality of forming such a government, on the defeat of its predecessor, without an election. But that was never the issue.
It was not coalition government per se the public found so hard to digest. It was that coalition: to be led by a prime minister who had just resigned as leader of a Liberal party that had just been massively rejected in an election—and was desperate to avoid another—and utterly dependent for its survival on a party dedicated to the destruction of the country.
Indeed, so weak and unstable was the coalition, and so lacking in popular legitimacy, that it is doubtful whether it could have held on to power for more than a few chaotic weeks. Which means that if the Harper government had been defeated on a confidence vote, it’s not at all clear the Governor General would have called upon the coalition to govern.
But, as we know, it never did come to a vote. Which leaves us with that last, confounding question to wrestle with: whether the Governor General was right to accede to the Prime Minister’s demands for prorogation, and what alternatives she might have had. This is of more than historical interest. With the House likely to continue in its present configuration for some time, we’re almost certain to see another such unregulated contest of wills—not only between parties, but between Prime Minister and Governor General—before long.
At the time, my line was that Michaëlle Jean gave the right answer to a question that should never have been asked. The Prime Minister should not have used the power of prorogation to avoid defeat in the House; but until he actually had been defeated, she had no constitutional grounds to refuse him. As indeed she did not.
But since then we have had some unsettling revelations about how far both sides were prepared to push things: from the Governor General’s advisers, that she might not have granted the Prime Minister’s request had he not offered certain concessions, including the speedy recall of Parliament and presentation of a budget; from the Prime Minister’s, that the government might well have refused to accept an unfavourable ruling, appealing either to popular opinion or, according to Lawrence Martin’s new book Harperland, the Queen.
This is frightening stuff. I’m not at all sure the Governor General was in a position, constitutionally, to be setting such conditions, and it’s unclear what she would have done if her bluff was called. Yet, as disturbing as it is to think of the Tories defying the Governor General’s ruling—how? for how long?—their position cannot be dismissed out of hand. What do you do if the Governor General, supposedly the guardian of constitutional government, herself oversteps her constitutional authority?
If we are to avoid a crisis in future, then, we need to establish some ground rules. The Tories appear to believe the governor general’s is not the last word in such disputes. If that’s wrong—I can’t imagine the Queen overruling her viceroy, and the thought of settling this with demonstrations in the streets ought to fill everyone with dread—it makes it all the more vital to have a person of unquestioned authority in the office, sound of judgment, independent of party, and perceived as such. Recent changes in the appointment process are welcome in this light: there can be no return to the days when prime ministers appointed their former press secretaries to the job.
We needn’t over-specify things. There’s virtue in leaving the players some discretion to work things out. Not every situation is the same, and rules cannot be written to cover every eventuality. Whether to hand power to the coalition, for example, rather than call an election, would have depended on a close reading of its ability to govern, among other considerations. And of course, formal constitutional amendments are out of the question.
But the informal conventions—where a governor general should yield to a prime minister’s request, and where to stand firm, and what sorts of judgments should inform each decision—need to be spelled out, understood, and agreed upon on all sides. A conference of international experts is to be held next February, with the government’s participation and Rideau Hall’s support, to consider these very questions. That seems an excellent place to start.