How to go about this


I’ve asked a few learned minds about the feasibility of the NDP’s prorogation reform proposal. First to write back, University of Toronto professor emeritus Peter Russell.

I think what the NDP has in mind could be okay if properly drafted. It should be a resolution of Parliament saying that the Prime Minister should not ask the Governor General to prorogue without the approval of a majority of members (or a majority vote) of the House of Commons. Such a resolution would not purport to bind the Governor General in law—but would give the Governor General a political principle to guide her in exercising her discretionary power to prorogue. If the resolutiion supporting this principle had all party support it would have the strength of a constitutional convention.


How to go about this

  1. This is fixed election dates Version 2.0.

    • very close but not quite WDM. this is prorogation. one could make a similar proposal for dissolution which would be fixed election dates Version 2.0.

      • What I mean is that anything the House decides doesn't matter as it won't affect the ability of the GG to prorogue Parliament. Ergo, like fixed election dates, nothing can legally stop the PM from asking her. I actually think it's kind of funny that the person in question actually said the bill would provide a 'parliamentary principle' when we saw how irrelevant that was when the PM pulled the plug in Sept 2008.

        • sorry was not clear on your point originally. so you thinkg laws, with clearly specified sanctions and, of course, a lack of applicable loopholes are our best (only?) option if we want to direct the appropriate use of power these days?

    • Aside from having to re-formulate what Jack Layton proposed yesterday, it's obvious that Peter Russell has not read or hasn't understood Mr. Justice Michel Shore's decision in that case.

    • So what if it is. It's smart populist politics. Yes, I know only conservatives get to play that game.

      • When a law is utterly meaningless, it should be called as such, and not ignored simply to view in a 'smart politics' lens.

      • And when people find out its utterly ineffective at doing what they wanted it to do, and was just designed to fool them into thinking they were actually doing something, is it still smart populist politics?

        • It's rare for an ineffective populist policy to bite a party in the arse down the road. That's why politicians resort to them so often.

        • It's cheap politics for a political party that never has to worry about actually implementing laws to propose such crockery. 'Serious' political parties (ie actual contenders for power) really shouldn't do it at all.
          Unless, of course, you're captain of meaninless populism, fake policies, smoke and mirrors. Then you push through a fixed election date law.
          That law can be said to be worth less than the paper it is written on, but I think that there is still some value in its use as kindling.

    • I disagree and see a major difference because this could be structured to prompt a debate and a vote in the House each time a prime minister requested prorogation, whereas the fixed election date attempted to bind future decision making by either the House or the Governor General.

      This doesn't step on the prerogative of the GG; all it would do is require the Goverment to bring its proposal to prorogue before the members before making the request to the GG.

  2. In other words, like usual, the NDP hasnt thought at all about the mechanics of the legislation they are proposing. The PM wouldnt be bound by any type of law, and would most likely ignore it.

    The GG wouldnt go against the will of the PM, lest she want to trigger a constitutional crisis, and possibly another King-Byng affair.

    So unless this is some machievellian plan by the NDP to destroy the influence of monarchy in our system, I suspect this is another crappy idea by Laytons Team.

    • I don't know about crappy but definitely not well thought out.

    • In other words, like usual, the NDP hasnt thought at all about the mechanics of the legislation they are proposing.

      Have you seen the actual piece of legislation the NDP is going to introduce? No. Can you name another piece of legislation the NDP has introduced that was built upon shoddy mechanics? No. Can you spew nonsense? Yes.

      • Thankfully, the only "legislation" that the NDP can introduce is Private Member's Bills.

    • "The PM wouldn't be bound by any type of law".

      Really? That seems just a bit too sweeping for me. Don't get me wrong, I'm not 100% sure the NDP's idea is advisable (or doable, or constitutional) but I'm not sure a blanket "the PM won't be bound by any law" statement is true either. Some have suggested making it some sort of criminal offense for a Prime Minister to request prorogation from the GG without the express support of the legislature. I'm not sure how feasible that is (or how constitutional) but I do know that binding the PM by statute is different from attempting to bind the GG in a similar manner. Of course, even if it's feasible and constitutional, a PM could still decide to ignore such a law and advise the GG however he or she sees fit – but that might land the PM in jail.

      • Any minister, being simply a person like any other under the eyes of the law, can be bound by statute and it is very, very common to do. Ministers are subject to a myriad of obligations under statute and even by way of mere regulations. Legally speaking, there’s nothing special about the prime minister. I don’t see any reason why Parliament could not bind the PM by statute in terms of when he may advise the GG and under what circumstances. That would in no way affect the GG’s discretion to actually prorogue Parliament, but it would affect the PM’s ability to give advice, which should be fine. I also don’t particularly see a need to attach sanctions to such an obligation on the PM. Any advice given in contravention of the statute would be illegal in and of itself – void ab initio, we would say – and could not be considered advice by the prime minister to the GG, but merely advice by some person to the GG. That advice should have no weight and therefore one would expect that the GG would never accede to it.

        All that said, this is really a cultural issue, as others have mentioned, relating to the power and exercise of Parliamentary control. Setting down rules isn’t really going to improve things overall. Parliament has the power *now* to sanction or control the PM if a majority of its members wish, without even resort to passing a bill to that effect. But Parliament has drifted very far from its British apex, if it were ever even near that in the Canadian experience.

        • But the sanctions are what make it fun!

      • Agreed. As I understand it, the Constitution deals with the PM asking the GG. A simple statute could be enacted detailing when a PM could ask the GG, and there'd be nothing Constitutional about it, yet still have the force of law (the statute).

        Having said that, I'm a little leery of this. Let us say for example that there is a minority government in our future (No! Really?) Let us say that the government has fulfilled it's goals of the session, bills have been passed, no looming contempt or confidence vote on the horizon, etc. And let's say they feel the need for a Throne Speech to kick-start some new goals. Let's say the opposition decides, just to be cheeky, not to approve the request. The session drags on (probably with MPs not sitting as there's nothing for them to do).

        Are we much better off? I guess this is the answer because we have to do something, but I'm not solidly in favour of this solution.

        • Under your scenario the government could still introduce all the new bills it wants. They just wouldn't get a fancy throne speech to talk about them.

          • No, I know, and that's why I end up on the supporting the initiative side. But I can see where a fancy throne speech would be helpful. Seriously. Everyone says pomp and circumstance is so much nonsense, but it brings the emotions onside, and I firmly believe emotional involvement with intellectual involvement beats intellectual involvement alone.

          • They could do the same with a Mike Duffy emcee'd townhall

          • Obviously, I wasn't clear in my intent. I meant *positive* emotions, not the kind that make you go "eeeugh."

  3. This NDP proposal is simply to expose the Harpenator.

    note the caveat: "If this …. had all party support"

    they know it will not fly – but when the Harpenator finally deigns to reopen the HoC they will revive the prorogation issue and force the the Cons vote it down.

    good going Jack!

  4. But….

    Under what circumstances would a minority-parliament ever give a majority consent to a PM for prorogation?

    • When the agenda put forth in the throne speech was/or nearly was completed.

    • Prorogation should be relative uncontroversial. I can’t see the opposition opposing a brief prorogation when the government can reasonably claim to have completed what it set forth in the previous Throne Speech. I don’t see why it should be any different than agreeing on the timing and duration of adjournments, unless the government is attempting to abuse prorogation as a parliamentary procedure.

    • Next time we host the Olympics?

  5. Hard cases make bad law. What Harper did was constitutional but ethically questionable so we don't need new laws, we just need better MPs.

    Also, I am not sure why we are supposed to think tyranny by majority government is any better than tyranny by a minority government.

    • "Also, I am not sure why we are supposed to think tyranny by majority government is any better than tyranny by a minority government".

      Perhaps because a majority in power ignoring the wishes of a minority is much less frequently tyrannous in nature than is a minority in power ignoring the wishes of the majority. You've been right all these many (MANY) times that you've pointed out that a tyranny of the majority is not necessarily any better than a tyranny of the minority, but I think where that argument goes off the rails is that the majority doing something that a minority doesn't like describes pretty much everything we do in a democracy, and while that can sometimes be tyrannous and wrong (a majority repressing the rights of a minority for instance) it is exponentially less likely to be wrong than are cases of a minority imposing their will on the majority. A majority imposing their will on a minority can be bad, or it can just be democracy. A minority imposing their will on the majority is rarely just democracy at work.

      • "majority doing something that a minority doesn't like describes pretty much everything we do in a democracy"

        I agree when you are talking about regular people. Majority of people decide and minority can like it or lump it.

        However, we are talking about political parties/MPs. Majority governments rarely have more than 40/42% of vote of the 60% of people who can be bothered to vote in first place so majority governments can't really be said to be representing the majority of people.

        Libs won majority government in 1997 with 38.46% of vote, while Cons won minority government with 37.65% in 2008. I am not impressed with argument that Libs could do whatever they liked because they had majority while Cons behaving in similar manner is threat to democracy.

        Also, my perspective is influenced by the fact that I think all the major parties are corrupt and should be abolished.

        • Well, now you're questioning whether or not we should continue to have representative government, so that's a whole other story. (Also, even when we're talking about "regular people", the idea that "Majority of people decide and minority can like it or lump it" can still lead to a tyranny of the majority, even if we decided everything by referendum, so I'm not sure how you square that circle).

        • I think I'm liking your abolish the parties thing, I'd love to explore that a bit more. Obviously, candidates would still identify with a party's ideology (at least at first as the current batch of MPs came up for re-election), but so what? They'd be free to pick and choose what proposals to vote yea or nay, they'd pick a PM from level seats, and the PM could pick the most capable MPs from the bunch–no matter what their avowed ideology is.

          I wonder what the chances of Harper being elected would be in that scenario, or how many current cabinet ministers would be cabinet ministers in this alternate universe. Or would everybody just vote for themselves?

          • In my mind, there is no PM or cabinet. There are 320 ridings I think, or there's going to be soon, and anyone who wants to be MP can run during Fed election. There are no parties to decide who runs, who doesn't.

            After election, we have 320 people beholden to no one except their constituents. Any MP can propose legislation and all they need to do is convince 160 others that their leg is good and needs to become law.

            If it's decided that we need some kind of President, or figure head, all Canadians would get a vote and not just people in one riding.

          • Technically, one can argue that the system you propose is actually what's in legislation right now. We just have the add on of the parties on top of it. The question arises of how you stop people from forming parties.. even with legislation against it, that just means there won't be a formal party, but rather informal alliances that everybody knows about. "I pledge to support the ideas of Mr. Harper from Calgary" type thing.

          • "the system you propose is actually what's in legislation right now."

            I was wondering about that. I remember Americans were against parties during their revolution but they quickly formed anyways but I could not recall what people were thinking when they created Westminster Parliament. I was not certain if Westminster was meant to have parties or not.

            I have no idea how you stop people from forming parties – probably not possible because humans sure seem to like to join groups and not be out on their own. Maybe someone cleverer than I could draft legislation that would stop people from joining groups or desiring leader to lead them.

          • I'm totally in agreement with your stance on parties, but getting rid of them is not possible – they will always form whether explicitly acknowledged or not. The ancient Greeks (who used the rep. by lotter system you advance above), were also extremely concerned about the formation of parties. They went so far as to constantly rotate the seats in the Boule so that the same people did not sit next to each other all the time in an attempt to prevent like-minded voting blocs from forming.

            The Westminster system did not specifically envision parties, nor specifically envision not having parties, they developed organaically, like most things in our system. Court/country; conservatives/whigs; Conservatives/Liberals; Coservatives/(New)Labour, not necessarily in a straight intellectual lineage of course.

            Having 308 individual MPs is a great thought but ultimately not possible, as is obvious from history, parties will form. What we do have more control over however is to break up some of the power of parties and break-up the power of the de facto Exectuvie branch (the PM).


          • Yes, but this is what I like. I want there to be a cabinet minister responsible for certain files–a Prime Minister can't do everything by himself. The informal party means that there is no whip, there is nobody to say you "must" vote this way or that–except for the constituents. You can pledge to support if you want to–but why would you lock yourself into such a stupid thing? "The ideas of Mr. Harper from Calgary are generally ideas I can support" would be more the thing. There are no national advertising buys because nobody is advertising nationally. There is no election war room. There are no national fundraising campaigns–if you want to donate to your candidate's campaign, that's great, but you won't be sending any of that money to anyone else. There are riding associations, but for individual candidates, not of political parties. There is no such thing as a parachute candidate. Really, its a fabulous system! Why didn't they think of that in the first place? Oh. they did.

  6. Unfortunately, though we know how to make new laws, making better MPs seems to be beyond us.

    • Agreed. We are dealing with conundrum – sensible people would not touch MP job with ten-foot pole while those who are attracted to politics are exactly the people we don't actually want to run the country.

      The solution I would like to see, though it will never ever happen, is to declare being an MP is part of our civic duty. Every few years we have lottery of all Canadians and we randomly choose 320 people to be representatives for x-number of years.

      • I was with you until the lottery system a la jury duty. Even in that case, potential jurors are screened for potential bias (etc) and overall suitability to be a juror. If we were to run MP selection the same way, who makes the decisions as to what constitutes a good MP? Who doesn't? How do we change the system, if after 100 years Canadian values somehow change drastically from where they are today?

        I'm inclined to propose a recall provision, whereby if x percent of constituents petition for a by-election in their riding with a new candidate, the MP is required to submit. (Waitaminit – doesn't democracy already allow for this?)

        • One problem with recalls, is that in a multi-party FPTP situation, the MP is quite likely not elected by the majority of the constituents, and signing up a sufficient number of people to trigger a recall from among those who voted against the MP might be too easy.

          • That's a good point. Would going back to the CRO's lists of who showed up to vote and using only those names as eligible to petition, and set the threshold…say…to 25% of those who voted?

        • There would be no screening of people: everyone over the age of 21 would be entered into lottery to be MP except convicted criminals and those diagnosed with serious mental problems. I have more faith in the wisdom of crowds than I do in the few people attracted to politics.

          I also think the randomness would better reflect 'Canadian values' than liberal shibboleths we are subjected to now.

          • Heavier things fall faster than light things.
            The earth is the centre of the universe.
            Harsher punishment lessens crime.
            Iraq was responsible for 9/11.

            I have serious doubts about "the wisdom of crowds"

          • And I have serious doubts about leaving these topics to so-called experts.

            There is no perfect solution because humans are far from perfect. I have more faith in 320 random people passing equitable legislation than I do when one or two people crafts all the laws, which is how our system works now.

            You or I could find ourselves proposing legislation but we would have to convince 318 others that we are not entirely crazy, which could be difficult for both of us.

  7. I disagree with the assertion that this is the same as the fixed election dates. That "legislation" was completely silent on the issue of what the PM could do. Read literally it says that anyone who can call an election is required to wait for 4 years between elections with the notable exception of the GG who can do whatever they like. Since the GG is the only one that can call an election it was disfunctional in the extreme.

    Since this explicitly describes what the PM should do it will solve the problem or at the very least provide a greater challenge for the PMO's spin doctors.

    • that's disingenuous

      in both cases the GG has the official and theoretical power while obviously the PM holds the defacto power

    • The other difference I note in my reply to WDM above is that this would trigger a debate/vote each time prorogation was requested, which provide a basis for GG's decision, rather than binding future decisions and removing the GG's perogative.

      • But would the PM be obliged to listen to it? I appreciate the NDP's attempts, but its treating a symptom without treating the disease, and not particularly well. We've seen in the past that the will of Parliament, particularly on private members bills can be ignored.

  8. From House of Commons Procedure and Practice

    "Like the summoning and dissolution of Parliament, prorogation is a prerogative act of the Crown, taken on the advice of the Prime Minister"

    • Yes, but what's been suggested here doesn't restrict the Crown whatsoever. It restricts what advice the Prime Minister can give.

    • CJ, this is why I don't think one could enact legislation attempting to constrain the prerogative of the GG to prorogue. However, whether legislation could be crafted to constrain the PM's ability to advise the GG to prorogue when that advice is contrary to the will of Parliament is another question (and the answer may well be "no" but I haven't seen a convincing argument to that affect yet).

      I'm reasonably convinced that Parliament cannot constrain the GG's prerogative to prorogue when she sees fit with mere statutory limits (i.e. they'd need to open up the constitution to make it effective). However, I'm less convinced that Parliament can't constrain the ability of the PM to offer advise to the GG which contradicts the will of Parliament. Parliament can't tell the GG "You can't prorogue without Parliament's acquiescence" as that would be a constitutionally moot piece of legislation However, I think that Parliament may well be able to tell the PM "You can't ask the GG to prorogue without our acquiescence" and have that legislation stand up to constitutional scrutiny.


      • Our systen seems to have a flaw here. The GG may only listen to her first minister for advise, but the price of her acquiescence is tha t the PM must have the confidence of the house…but if you're proroguing to avoid that CV shouldn't the answer be no in every case? There's no way i can see the GG should have granted the December 'coup' prorogation. She could have reasonably granted an election if she didn't like the houses proposal to govern, but that's it. The GG has in effect become a rubber stamp. Whatever Coyne may say our system is broken. If the PM can prorogue without the confidence of the house it's a sham. A motion to Prorogue should go before the house in all instances…this may not bind the PM constitutionally but it would make it clear where the duty of the GG lay.

  9. If you want an answer, look to Quebec. Google different combinations of "Committee on the National Assembly", two-thirds, "standing orders", and you'll be on the right path.

  10. 1. We could take away the power of appointing/approving candidates from the parties and their leaders – in each riding run real candidate primaries like in the U.S (gasp!, I know).
    2. Break up the power of the Executive over its regular party members. The way the Westminster system is supposed to work, is that the Cabinet, led by the PM, is the defacto executive with it role of providing advice to the Crown. Everyone else, including members who happen to be of the same "party" as the members of the Cabinet, should be free to vote as they like. The problem is that over the years, back bench MPs of the governing party have become beholden to PM and essentially voting machines, and hence the opposition MPs have also become beholden to their party leader, because no one wants to give up their advantage.
    2.A – Alternative to limiting the PMs power is to elect the GG.

    • To me, it all comes down to your second point – power of executive. What I don't really understand is why regular MPs go along with the system and how it is now.

      Why don't MPs grow some spine and stick up for their rights and responsibilities? I follow UK politics and Labour government regularly has 30-40 of its own members voting against proposed legislation and nothing happens to them. I believe if MPs were to push back against the power wielded by PM and a few of his cohorts then change would occur.

      Until MPs get tired of being little more than sheep, nothing will change because PMs quite like how the system works now, I am sure.

      • And MPs won't get tired until their electors get tired of electing sheep. And we won't get tired of electing sheep if it means "our guy" wins. Which is why I still like the idea of doing away with parties, because even if people will group together, the entire party mechanism (whips, advertising, candidate approval, etc.) can be legislated away–never to return. Also meaning there is no guaranteed "guy" to be "our guy". That plus the NDP motion could solve all our problems.

        Of course it would make a few new ones, too.

      • Point 2.A deals with the power of the Executive as well, just by a different route. If the GG were elected, then the Executive power that only theoretically lies with that office could actually be exercised by it, greatly diminishing the PM, but this is probably too big a change for Canada, I'm not even sure that I support it.

        From what I understand Brit backbenchers are much more likely to dissent for a few reasons:
        1. Longer standing sense of tradition and the way things once were
        2. There are way more of them – so many of them know they are never going to get to Cabinet or the plum patronage posts, so dissenting against their party doesn't hurt them as much; in some ways it helps because it raises their profile
        3? I don't know if the British party leaders have the same control over candidate nominations that Canadian party leaders do? If they don't that's another reason.

  11. So what happens when the PM of a minority government makes the NDP prorogation vote a matter of confidence. Prorogation as is triggers a delayed ocnfidence vote (i.e. on the Speech from the Throne). So all the NDP proposal does is that the Prime Minister would read a defacto "Speech from the Throne" or "State of the Nation" at the end of the session and have a prorogation vote that is a confidence vote.

  12. The fixed date election law was passed unanimously by Parliament and it did not influence the Governor General when Harper asked to dissolve Parliament for an election (not just prorogue). So, it is naive to believe that a Parliamentary motion would have any influence on this Governor General. She does not seem to understand her Constitutional role. A rubber stamp could be Governor General.

    She does a great job of everything else.