How to go about this (III)


Spoke to Ned Franks just now. Here’s the essential gist of our conversation.

Q: So if the NDP comes in and says, just lays out legislation that says, essentially, the Prime Minister cannot prorogue Parliament without a majority vote of the House of Commons, a majority of members, that effectively limits, from that points forward the Prime Minister can’t prorogue Parliament without a majority vote of the House of Commons?

A: Well, they wouldn’t say it that way. What they would say is the Prime Minister cannot advise the Governor General to prorogue Parliament unless a motion to that effect has been passed in the House of Commons. So it’s limiting the Prime Minister’s power to advise rather than the Governor General’s discretion … It would leave the Governor General open to prorogue without the advice of the Prime Minister.

Q: I thought it would require some sort of constitutional wrangling.

A: The Conservatives might argue that Parliament cannot legislate limiting the Crown’s discretion and reserve powers, but Parliament isn’t as long as it’s limiting the Prime Minister’s powers to advise. Advice within the meaning of the constitutional meaning of advice to the Governor General.


How to go about this (III)

  1. Alright! Bring on "Harper's Law"!

  2. Dr. Franks will be giving a presentation on prorogation before the rally here in Kingston tomorrow. Should be interesting to hear his views on the issue.

    • Yes, it would be. Please post your thoughts afterwards.

      • Hi Jenn. I posted a synopsis of Dr. Franks's presentation over at Aaron's "I Shouldn't Have to Be Here" post.

  3. So what recourse would parliament have if he chose not to adhere to the law? The NDP planning on putting this into the criminal code?

    Like always, the NDP came up with this hamburgered mess of an idea– probably after too many drinks at winter caucus.NDP PMBs are always good for some chuckles. They are lucky that HoC PMB office does the spell check portion for them.

    • Parliament can pass motions and law or it cannot. As to what they could do, i imagine public opinion will have something to say on this or any future PM attempting to prorogue the house without its consent…we are the final arbiters.

  4. Should also be noted that parliamentary statutes override Crown prerogatives, presumably even those considered essential to the functioning of our current system.

  5. Parliament just passed a motion forbidding the government from signing a new agreement with the Northwest Atlantic Fisheries Organization.

    The government went ahead and signed anyway.

    • Would that motion carry the same weight with the public as a motion limiting the PMs ability to prorogue at will, considering the present circunstances? If such a motion passed and this PM prorogued again under similar circumstances the public reaction would be the same as a fisheries motion ignored?

      • Also, I believe that the NDP is proposing the passage of a LAW, not just a motion. Ignoring a motion passed by the House of Commons is one thing, ignoring a statute passed by the House, passed by the Senate, and signed in to law is something else all together.

        • There lies the rub. Will the Senate (at full complement come March 3rd) pass such a law???

          • Maybe not. However, I'm not sure an unelected Senate refusing to pass an act focused on accountability and reducing the concentration of power in the PMO would be good news for the Tories exactly. I mean, sure, the Tories have gone back on promise after promise, and have done innumerable things that would have made Harper apoplectic had Chretien done them, but still. Using the unelected Senate to block an accountability measure passed by the majority of the House of Commons would surely be a bridge too far.

    • Personally, I think it is a crisis when the government does anything that the House of Commons specifically forbade. Parliament is supreme, and the government serves at pleasure of Parliament.

      • Parliament consists of the Crown, Senate and Commons. Parliament is supreme, the Commons is not. If it passes a resolution that is ignored by the government, then its remedy is to vote non-confidence in the government. But if it chooses not to do so, then the matter really is at an end. A resolution of the Commons is no more than an expression of opinion of the members at that time. It is not law.

        • Hear hear. This is all smoke and mirrors if the Opposition hasn't got the guts to vote non-confidence. The issue about prorogation, to my mind, is that it robs the House of the ability to vote non-confidence; that's why I'd like to see a mandatory vote of confidence in the Government immediately before prorogation. Otherwise the Cabinet can effectively govern absolutely whenever it pleases and the supremacy of Parliament is undermined.

          The Crown participates in Parliament but also exists outside of it. That's the key thing here. The Crown is currently governing without Parliament.

          • Yes, that should work. A manditory vote of confidence before a prorogation.

          • That is the most sense Mitchell has made in at least a week.

          • A good proposition, but I would change it to a vote of confidence after prorogation. The reason being as detailed above, that there can be no limits passed on the GG's powers. A law that said parliament had to sit and vote before the GG prorogues would by definition be a limit on the timing of when she can prorogue.

            For example, a GG may very well believe, at a time of war for example, that keeping the current government in its place and avoiding an election is in the best interests of the country. With your proposed law, she would be held hostage to the will of parliament. If the vote is held AFTER prorogation, it avoids this mess, as the GG would eventually be forced (by fear of revolt) to have parliament sit again as soon as possible.

          • Stop being an idiot. You can't hold a confidence vote AFTER prorogation and you know it. Unless, you don't understand that proroguing means shutting down the place they would hold the vote to make it legal. Also, the proposal doesn't affect the GG whatsoever, it is designed to limit when the Prime Minister can advise the GG. A law that said parliament had to sit and vote before the Prime Minister could advise the GG to prorogue parliament is perfectly constitutional.

          • Perhaps that's a good idea. I think I'd prefer the ability to hold a non-confidence vote while parliament is not in session, so it would not matter whether prorogue has happened or not. In other words, there could be a manner for convening parliament just to hold a confidence vote, with a warning of perhaps a couple of weeks, giving time for everyone to return to Canada if necessary.

  6. Will do. :-)

  7. I keep hearing the NDP proposal discussed in the context of a majority vote of the House of Commons. But the Parliament of Canada has two houses — the House of Commons and the Senate — and both houses are shut down when the GG grants a prorogation of Parliament.

    Would the legislation proposed require a vote of just the Senate, or a majority vote of both houses? Would it be legitimate to only have the House's votes count. And with the # of Con seats in the Senate, wouldn't that make it easier for them to get a prorogation vote passed?

    • From what I heard it would just require a vote of the House (like non-confidence motions or budget motions).

      • Not possible. Parliament (as in both the House of Commons AND the Senate) is prorogued by the GG, on the advice of the PM of course. Ancient tradition and all that.

        • That doesn't have anything to do with the point I'm making.

          Both the House and Senate are dissolved when the the government is defeat, but that doesn't mean there has to be a vote of non-confidence in the Sneate, just the House. The idea here would still be that both the House and Senate would be prorogued but that the prime minister would be legally prohibited from advising the GG do to so without a vote in the House;.

    • A reason why an elected Senate is perhaps not a good idea: it will challenge the supremacy of the House of Commons.

      • I agree, to a point. Without term limits, they'd be able to claim democratic legitimacy for life, and have no fear of facing the voter ever again. This is why I prefer Harper's 8-year term to Iggy's 12-year term – on the condition that the Senator is allowed to run again. If it's a one-off election, then the 12-year term might be more fair.

  8. The NDP's proposal is constitutionally sound. The House certainly can bind the prime minister and limit the kind of advice he's free to offer to the Governor General (who cannot be bound in the same way).

    Naturally, the NDP is more interested in the PR value of this proposal than in its statutory effects: stealing Harper's reformist thunder would be a cute bit of mischief; it would even be impressive if there were much thunder to steal.

  9. There is nothing stopping the Liberals from voting no confidence after parliament resumes. So you CAN vote no confidence after prorogation. It's not like we're talking about an *indefinite* suspension of parliament. Unless you don't understand that parliament will in fact sit again, prorogation has happened since the beginning of our democracy, and will continue to. If the opposition feels that the government has been avoiding a confidence vote, they should have the opportunity to express their confidence as soon as possible… after parliament resumes.

    And saying that the proposal doesn't affect the GG, while limiting when and what advice her PM can give to her is a logical contradiction. She is advised by the PM, but by no means required to follow that advice. What you're suggesting would allow parliament to overrule the GG. That's not possible. Unless of course you're suggesting that the GG be held accountable to parliament.

  10. No, I said STOP being an idiot. What good is voting against prorogation after the prorogation has ended? It is as useful as a campaign to save the dodo bird. And I don't know how logic works in your world, but in the real world it works like this: First, the PM advises the GG, then the GG can decide whether to follow that advice. The proposal is to get in there BEFORE the first part, vote to approve prorogation, now the PM advises the GG, then the GG can decide whether to follow that advice. See how the GGs part hasn't changed one iota? Or, if parliament votes not to approve prorogation, the PM doesn't advise the GG about anything. Which would be the same as her day yesterday, last week, probably tomorrow, etc.

  11. I really like this answer.

    Well, they wouldn't say it that way. What they would say is the Prime Minister cannot advise the Governor General to prorogue Parliament unless a motion to that effect has been passed in the House of Commons. So it's limiting the Prime Minister's power to advise rather than the Governor General's discretion … It would leave the Governor General open to prorogue without the advice of the Prime Minister.