Harper’s Fourth Prorogation Looks Much Like His First


I thank James Anderson for having published this column on National New Watch’s Featured Ink earlier today.

Introduction

Prime Minister Harper advised that the 1st session of this 41st Parliament be prorogued on 16 September 2013, and that the 2nd session be summoned on 16 October 2013. In total, Prime Minister Harper has advised that parliament be prorogued four times – contrary to the Globe and Mail’s and CBC’s early reports that he had just undertaken his third this year. Some journalists forgot about Harper’s first prorogation because it did not generate any political controversy. Harper advised that the 1st session of the 39th Parliament be prorogued on 15 September 2007 and that the 2nd session be summoned with a Speech from the Throne on 16 October 2007. Harper’s second prorogation (5 December 2008 to 26 January 2009) and his third prorogation (31 December 2009 to 3 March 2010) proved more controversial because they gave the Government tactical advantage over the Opposition by, respectively, postponing a vote of confidence and a parliamentary investigation into the Afghan detainee file.

In short, Harper’s fourth prorogation most resembles his first – the timing and length are almost identical. Unlike his second and third prorogations of December 2008 and December 2009, respectively, and McGuinty’s prorogation of October 2012, Harper’s fourth prorogation in no way amounts to a tactical usage. Some Canadians have only questioned it because they have compared it to Harper’s second and third prorogations instead of to his first. The length of the intersession, at one month, conforms to all the legal-constitutional norms and federal practices. This prorogation is thoroughly ordinary for at least four reasons.

Four Reasons Why Harper’s Fourth Prorogation Is Thoroughly Ordinary

First, no one can claim that this prorogation came as a surprise; in fact, Prime Minister Harper took the unusual step of announcing several weeks in advance his intention to advise that Parliament be prorogued in the autumn. The Liberals and New Democrats knew what to expect and almost certainly planned for a prorogation this autumn. Harper announced his planned parliamentary timetable so early that the Globe and Mail published an inaccurate and hyperbolic editorial as early as August 2 – more than one month beforehand – in which the paper of record lashed out against Harper’s “third” prorogation (which in fact happened in 2009).

Second, the timing of this prorogation within the life of the parliament conforms to the norm. Since 1984, most sessions in majority Parliaments have lasted two years. The 1st session of this 41st Parliament started in June 2011 and ended in September 2013; in fact, it was the longest since the 1st session of the 32nd Parliament, which lasted from April 1980 to November 1983.

Third, every prorogation of the Parliament of Canada since 1867 has specified the date on which Parliament would return for the subsequent session. By custom, prorogation involves two proclamations: the first terminates the present session, and the second summons the next session for “dispatch of business.” The Governor General issues both proclamations on and in accordance with the advice of the Prime Minister, and the Deputy Attorney General and the Deputy Registrar General must counter-sign both proclamations, pursuant to the Seals Act. In fact, each proclamation even state that the Governor General, as the Queen’s representative, prorogues and summons Parliament “by and with the advice of Our Prime Minister.” If the Prime Minister does not know the date on which Parliament should reconvene, such as before an upcoming change of government, the Dispatch of Business summons Parliament 40 days later pro forma; the Prime Minister can then advise the Governor General to extend the duration of the intersession once the first Dispatch of Business expires. But that procedure will not apply to this case. In contrast, the procedures for prorogation in Ontario and most other provinces generally do not include the second proclamation for the dispatch of business. As we saw in 2012, Premier McGuinty advised that the legislature be prorogued on October 15 indefinitely; his successor, Premier Wynne, advised that the legislature be reconvened shortly after her appointment, on February 19. Harper’s fourth prorogation will last for one month, from September 16 to October 16 – the norm under Mulroney and Chretien.

Fourth and finally, Harper’s fourth prorogation truly is routine and should not generate the controversy that his second and third tactical (but constitutionally sound and legitimate) prorogations did four and five years ago. Harper now leads a majority government. This fourth prorogation came after the summer recess – which the intersession will end up extending until October 16 – and therefore did not postpone any pending business. The Harper government has exhausted its legislative program and passed all the bills that it still wanted to pass or could pass in the 1st session. Thomas Mulcair, Leader of Her Majesty’s Loyal Opposition, suggested that Harper opted for this intersession of one month in order to prevent questioning about the Senate Expenses Scandal, among other issues. The intersession would certainly delay such questions – but it will not make these political problems disappear.

Journalistic Hyperbole Seeps into Academic Writing

On 2 August 2013, the Globe and Mail released an absurd editorial criticizing Prime Minister Harper’s 4th prorogation – though the national paper of record described it throughout as Harper’s “third” prorogation, which in fact occurred in December 2009. The editors insist that “Parliament should not sit at the whim of the Prime Minister.” In reality, the Parliament of Canada has always “sat at the whim of the Prime Minister,” at least in the sense that the Prime Minister takes responsibility for the executive decision to summon and prorogue parliament. But the Government’s various responsibilities, notably implementing its platform or other policies and the annual budgetary cycle, must also factor into the Prime Minister’s “whims.”

The Globe also created an interesting neologism by accusing Harper of being a “serial proroguer.” Strictly speaking, this is true, if only because Harper has advised more than one prorogation. Most Prime Ministers are also “serial summoners” and “serial dissolvers” as well. The Globe then made the extraordinary claim that “No other modern prime minister has resorted to prorogation as often the current one.” This is false (though “modern” is a bit ambiguous). Prime Minister Chretien also advised four prorogations; Prime Minister Mulroney, three; Prime Minister Trudeau, eight. In any event, the Globe and Mail’s objection should pertain not to the number of prorogations that a Prime Minister may advise and receive over the course of his premiership, but rather the duration of the intersession – the days between prorogation and the Speech from the Throne. Mulroney started, and Chretien and Harper have continued, the trend toward longer intersessions. Mulroney’s first two intersessions each lasted 32 days, but his third prorogation conformed to the older pattern and lasted only one day. Chretien’s intersessions fell between 13, 23, 24, and 81 days. Harper’s intersessions fell between 31, 52, 62 days.

The Prorogation-Coalition Controversy of 2008 first brought prorogation, this once obscure but important power of the Crown, into prominence; it has also made any rational, calm discussion on it difficult – certainly in the media, but, more surprisingly and troublingly, within academia. Prorogation terminates a session of parliament, clears all government bills from the Order Paper, allows parliamentary committees to be reconstituted (such as after the appointment of new Senators), and ensures that the Government introduces its latest program in a Speech from the Throne that opens the next session. Dissolution extinguishes the parliament itself. However, since 2008, political rhetoric has crept into the debate and has replaced neutral descriptive terminology. Now prorogation does not merely “end a session” – it “shuts down” Parliament, with all the negative connotations of that verb. In extreme cases, prorogation might even “silence” Parliament, with the implicit comparison of Prime Minister Harper to a Stuart King. (Professor Lori Turnbull used both phrases in her recent column in The Globe and Mail.)

Conclusion: Prorogation and Responsible Government

While Harper’s fourth prorogation itself conformed to the federal customs and most legal-constitutional norms, the Prime Minister did make one significant mistake that contradicts the basic principle of Responsible Government. Unlike for his previous prorogations, Harper’s website did not confirm the length of the prorogation and the date on which the Governor General would summon the next session with the government’s Speech from the Throne. The Prime Minister has a duty to publish that information on his website in order to prevent anyone from contacting the Governor General about decisions of the executive government for which the Prime Minister and Cabinet take responsibility. On 4 September 2007, “Prime Minister Harper announced his intention to prorogue parliament. (Presumably, PMO had discussed the upcoming prorogation with Government House before publishing that news release). In December 2008, Harper spoke to reporters, after spending two hours in Rideau Hall, to confirm and defend the prorogation. In addition, on 30 December 2009, Harper’s website announced that a “Throne Speech [would] launch a new session of parliament.” While that news release and its accompanying backgrounder assiduously avoided any mention of “prorogation” for political and public relations purposes, it still allowed journalists to report that a prorogation had occurred, since Speeches from the Throne can only come after a prorogation. The Governor General’s Office should not have to field questions on matters of the executive government of Canada, because the Prime Minister and Cabinet take responsibility for all acts of the Crown. The Prime Minister – not the Governor General – must therefore explain the reasons behind and the consequences of an executive decision like prorogation.

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One Response to Harper’s Fourth Prorogation Looks Much Like His First

  1. Richard Berthelsen says:

    James

    Your points are well taken, except I do not agree with this statement: “The Harper government has exhausted its legislative program and passed all the bills that it still wanted to pass or could pass in the 1st session.”

    There were several government bills which were lost on prorogation, although they could be re-introduced. There is no indication thus far that a new session will have anything appreciably different from the last: focus on crime, focus on the economy, Senate reform. Every statement by government ministers, including the PM, has suggested that these would be the same priorities.

    I would also say that while the number of intersession days are material and are part of a trend, I do think one has to consider the combination of days on which Parliament was adjourned as well as the intersession. It is very difficult to imagine that there had not been enough time for a Throne Speech to be written since June 19 when Parliament rose.

    These details are exacerbating the sense that the government is operating outside the unwritten rules.

    I like the rewording of the end but the point is that the media as well as the wider public, should be advised by the PMO when prorogation has taken place and Parliament is summoned sooner rather than awaiting the Canada Gazette. Again, this is leading to an impression of something nefarious. Good thing the Canada Gazette is promptly published on-line and has special editions, unlike Ontario, or we might never know.

    R

I invite reasonable questions and comments; all others will be prorogued or dissolved.

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