Russell’s Errors of Interpretation on Prorogation

Ontario News Watch uploaded an interview with Peter Russell on 25 June 2012, in which he displayed his unalloyed Forseyite interpretation of the reserve powers. Russell made several demonstrably incorrect assertions throughout the interview, which I shall enumerate below and support with the appropriate scholarship and primary sources, such as the proclamations of prorogation themselves contained in the Canada Gazette.

“Unprecedented” Advice to Prorogue

Russell incorrectly characterized the prorogation of 2008 as “unprecedented.” Canadian historian Barbara Messamore wrote a book on the early Governors General of the United Province of Canada and the Dominion of Canada and thoroughly debunked Russell’s assertion. In “No Discretion: On Prorogation and the Governor General,” Nick MacDonald and I demonstrated that the prorogation of 1873 took place under almost identical circumstances as did the prorogation of 2008: with a government facing imminent defeat in the Commons, the Prime Minister advised the Governor General to prorogue Parliament, and the Governor General did so. As The Globe (a Liberal paper) and the Ottawa Citizen (then a steadfastly Conservative paper) show, Macdonald’s prorogation of 1873 also provoked an enormous public controversy and heated debate for and against his advice. In 1873 as in 2008, critics decried a breach of parliamentary principles and denigration of Responsible Government.

The difference between the two prorogations rests with the response of the House of Commons. Macdonald advised prorogation, which Lord Dufferin formally implemented on 13 August 1873, with a pro forma summoning for “the despatch of business” on 22 September 1873.[1] Macdonald then advised Dufferin to extend the length of the intersession to 23 October 1873, at which point the 2^nd Parliament reconvened. In this case, the Commons decided to withdraw its confidence in the Macdonald government after the intersession and despite the prorogation. The first Macdonald ministry resigned on 5 November 1873, and Governor General Lord Dufferin formally appointed Alexander Mackenzie as Prime Minister on 7 November 1873.[2] Alexander Mackenzie then advised Governor General Dufferin to prorogue the 2^nd Parliament that same day, and to extend the intersession of the prorogation yet further on 12 December 1873.[3] Finally, he advised dissolution on the 2^nd Parliament for 4 January 1874, even though it had sat for only two years.[4]

However, when the 40^th Parliament resumed for its 2^nd session in January 2009, the Commons saw fit to pass the Harper government’s Keynesian budget and thus maintained its confidence in that Government. The identical inputs of these situations produced divergent outputs, but the House of Commons decided the fate of both the Macdonald government and the Harper government. Therefore, Russell and all those who agree with him should blame the House of Commons and the breakdown of the Liberal-New Democratic “cooperative government” agreement and the second Liberal-New Democratic agreement with the Bloc Québécois[5] – not Prime Minister Harper.

The Meaning of Responsible Government

Russell gave an unbridled, classic recap of Forsey’s interpretation of the reserve powers at 1 minute, 50 seconds:

The power to summon, prorogue, and dissolve Parliament […] are powers of the Crown, which are exercised in Canada by the Governor General. […] There’s no question that the power is hers and hers to use as she sees fit. [The Governor General] has to think what is in the best interest of parliamentary democracy and the well-being of Canadians. […] The Crown has the reserve power […]. It’s a tough call, which lots of arguments on either side of the issue. […] The Crown is our safeguard over our Prime Ministers who might want to ride roughshod over Parliament, ignore its will, not be willing to submit themselves to its judgement. That was the big worry: was this a Prime Minister not willing to submit his government to the judgement of Parliament? [The Governor General] has an important job to project the integrity of parliamentary democracy.  

Russell has omitted the conventional constitution and thus lost sight of the definition of Responsible Government itself. Responsible Government means that “Ministers of the Crown” (the Prime Minister and Cabinet) “take responsibility for all acts of the Crown” (policies, expenditure, decisions).[6] Under Responsible Government, the Sovereign does not act unilaterally and independently, but on the advice of the Prime Minister alone or the Cabinet as a whole and in accordance with that advice, except in extraordinary circumstances where the “reserve powers” may apply.[7] The Government must command the confidence of the Commons, gauged by formal votes in the chamber, in order to govern, though it retains all its formal legal powers and authority when Parliament is prorogued or dissolved.[8] The Government must also command the confidence of the Commons in order that the Governor General act in accordance with the advice of the Prime Minister to prorogue and dissolve. Notwithstanding the extra-parliamentary declarations of Members, the Harper government had already demonstrated that it possessed the confidence of the 40^th Parliament through the Address in Reply to the Speech from the Throne when Harper advised prorogation on 4 December 2008.[9]

The Supreme Court of Canada and the Court of Appeal for Ontario have recognized the validity of the aforesaid interpretation of Responsible Government. In Black v Chretien (2001), the Court of Appeal for Ontario ruled:

By convention, the Governor General exercises her powers on the advice of the Prime Minister or Cabinet. Although the Governor General retains discretion to refuse to follow this advice, in Canada that discretion has been exercised only in the most exceptional circumstances. Still, nothing in the Letters Patent or the case law requires that all prerogative powers by exercised exclusively by the Governor General. As members of the Privy Council, the Prime Minister and other Ministers of the Crown may also exercise the Crown prerogative. The reasons of Wilson J. in Operation Dismantle [case of the Supreme Court] affirm that prerogative power may be exercised by cabinet ministers and therefore does not lie exclusively with the Governor General.[10]   

Russell has therefore conflated the discretionary authority of the Sovereign or vice-regal to reject the Prime Minister’s advice under exceptional circumstances (the reserve powers) with the total powers of the Crown as a whole, which Ministers of the Crown routinely exercise in the name of the Queen or Governor General and for which they must take responsibility. Russell also uses “the Crown” to mean “the Governor General”; in reality, even Walter Bagehot, writing in 1867, recognized that “the Crown” consists of the “dignified” function, represented by the Queen or Governor General, and the “efficient” function, carried out by Ministers of the Crown.[11] Where the written constitution declares that the Governor General carries out a function, he does so by convention on and in accordance with the advice of the Prime Minister. Where the written constitution declares that the Governor-in-Council carries out a function, he does so on and with accordance to the advice of Cabinet. Russell is therefore wrong to assert that “There’s no question that the power [to summon, prorogue, and dissolve] is [the Governor General’s] and hers to use as she sees fit” because the Governor General does not act unilaterally and independently. The Governor General may reject advice, but must always ensure that the government can defend that decision, which is why vice-regal rejection of constitutional advice to prorogue or dissolve parliament would require the Governor General to dismiss the Prime Minister and government whose advice he rejected and appoint another. Just as the Governor General cannot dissolve parliament unilaterally, he cannot prorogue it unilaterally.

Procedure of Prorogation and the Duration of the Intersession

Russell ignores the written constitution’s limit on the duration of an intersession and ignores the proclamations on pro forma summoning. At 5 minutes and 5 seconds, he argues that the Governor General would “be bound to refuse [advice to prorogue]” under certain conditions. “One would be proroguing Parliament for an indefinite period or for months.”

Nick MacDonald and I already thoroughly debunked this spurious claim in our article, “No Discretion: On Prorogation and the Governor General,” but I will cite the relevant passage here.

[A] government in fact cannot indefinitely avoid or postpone a vote of non-confidence via prorogation, because it necessarily results in a new session of parliament, which in turn necessitates a new Speech from the Throne. The Address in Reply of the Speech from the Throne marks the first vote of confidence of any session, and parliament must debate this before conducting other business. The opposition can vote against this and thus defeat the government. The government can therefore only invoke prorogation once before the House of Commons could withdraw its confidence. In addition, the Constitution Act, 1982 requires that parliament meet at least once annually. Parliament must convene in order, at the very least, to pass supply in the form of the budget and estimates; the bills associated with supply constitute votes of confidence on which the government cannot evade parliament’s will.[12]

The documents in the first section show that each proclamation of prorogation (or before 1982, each Throne Speech than ended a session) and each proclamation of dissolution also entail a “pro forma summoning” of the next session or next Parliament. The Manual of Official Procedure of the Government of Canada, which Russell consciously dismisses and ignores despite its accurate descriptions of historical practice, explains this tradition and accounts for the proclamations extending the prorogations of 1873, which I included earlier in this column.

It is customary for a parliament to be always on summons, so Parliament must be prorogued to a specific date, even if there is no intention of convening it on that day. Historically, if no date for meeting is selected, it was customary to prorogue it pro forma for 40 days. The period of prorogation could be extended by proclamations for periods of 40 days.  The 40-day custom is based on the Magna Carta of King John, which agreed to give a minimum of 40 days’ notice for the summoning of Parliament.[13]   

The Canada Gazette contains the proclamations of prorogation, which also include the proclamation for the pro forma summoning of the next session of parliament. The prorogation of 4 December 2008 consisted of a “Proclamation Proroguing Parliament to 26 January 2009” as well as a “Proclamation Summoning Parliament to Meet on 26 January 2009,” both of which the Governor General issued “by and with the advice and consent of the Prime Minister of Canada.”[14] This wording demonstrates that contrary to Russell’s implication, the Governor General does not prorogue unilaterally and independently. The same applies to the prorogation of 2009.

Russell’s Dismissal of the Manual of Official Procedure of the Government of Canada

Russell again consciously dismissed the Manual of Official Procedure of the Government of Canada and pretended that it does not exist. Russell most certainly knows about the Manual because MacDonald and I once showed him a complete copy. Where Forsey described the reserve powers as “the last bulwark against prime ministerial absolutism,”[15] Russell described their raison d’etre as the “protect[ion] of our democracy.” He lamented, “I wish some of the principles governing their use were better set out in writing and available to the people and the media and the politicians – and agreed upon by the politicians […] We’re working on that – it’s a work in progress.”

Russell dismisses this cabinet handbook and its officialization of constitutional convention because it contradicts all his writings and assertions since the prorogation of 2008. For instance, the Manual states, “The Governor General does not retain any discretion in the matter of summoning or proroguing Parliament, but acts directly on the advice of the Prime Minister.”[16] However, the governor general can reject advice to dissolve under “those rare and almost indefinable circumstances when it is necessary for the protection of the constitution”.[17]

Activism vs Scholarship: Coalition of 2008

Russell was right on some key points, such as the constitutionality of coalition governments, and criticized “the government’s propaganda” with respect to the coalition agreements. He also confirmed that the Conservatives negotiated with the Liberals in order to secure passage of the budget in January 2009.

Like so many other scholars in the wake of the Prorogation of 2008, Russell has descended into anti-Conservative and anti-Harper political activism, which he insists on portraying as genuine constitutional scholarship. He characterized some unnamed ministers in the Harper government as “disgusting rather than ignorant” for having portrayed the proposed coalition as an unconstitutional coup d’état. He added,

[the Harper government] did two things which I think are disgusting – and I’ll use that word: one is misleading the people that there’s some rule that you can’t have a coalition unless it’s put before the public prior to the election – that’s absolutely BS, and there’s no parliamentary democracy in the world that has any such rule. […] [The Harper government] was also disgusting in that it treated the Bloc Québécois […] as an illegitimate group of MPs whose support for that [proposed coalition] government made it illegitimate […] because their long-term political program was an independent Quebec.

Obviously, coalition governments are not illegal or unconstitutional (contrary to some of the Harper government’s rhetoric), though I would argue that they are undesirable. And the proposed Liberal-New Democratic government certainly did not qualify as a coup d’état, contary to the most absurd and hyperbolic Conservative claims. The mendacity of the coalition-prorogation crisis knew no bounds and certainly did not apply exclusively to the Conservatives. In his memoirs, Brian Topp revealed that before Dion, Layton, and Duceppe held their joint press conference, he had identified on 30 November 2008 the possibility that the “Tories [would] prorogue to January” as a “short-term risk” to the fledging coalition.[18] Topp also acknowledged that he knew of “a manual drafted in the 1960s by the Privy Council Office […] that directs the governor general to grant a prorogation of the house to the prime minister, unconditionally and in every case.”[19] Topp served as one of the New Democrats’ chief negotiators and political operators; if he considered prorogation a legitimate delay tactic on 30 November 2008, then the New Democrats should not have question the constitutional legitimacy of Harper’s advice to prorogue. Of course, political parties operate under politicians’ logic and must shore up their respective bases of support, whether with integrity, or more likely, through the official mendacity and soft deception that so often characterize politics.

In addition, the evidence also leads to the conclusion that coalition governments do not form part of Canada’s political-cultural norms, and norms matter in a country that operates under a hybridized written-conventional constitution. Of the 41 Parliaments of Canada, 11 have been minority parliaments. All 11 supported single-party minority governments, sometimes with general support from an opposition party (as the New Democrats supported Pearson’s and Trudeau’s minorities) but never in formal coalition government, which means that the Prime Minister nominates Ministers of the Crown from more than one political party.[20] In fact, I would argue that the Conservatives’ and Harper government’s mendacity on the illegality of coalition government so resonated with the Canadian electorate and succeeded in shifting public opinion precisely because coalitions do not figure into our federal political norms.

The only coalition government at the federal level consisted of Robert Borden’s Conservatives and most English-speaking Liberals and governed from 1917 to 1920 through two majority parliaments; even Russell himself has acknowledged this fact.[21] This Unionist government formed in order to help better manage Canada’s war effort in Europe. The Cabinet itself consisted of 15 Conservatives, 9 Liberals, and 1 Labourite, which the Governor General appointed on 12 October 1917.[22] Most importantly for the purposes of this discussion, the Liberals and Conservatives adopted the platform of the Unionist Coalition Government, led by Prime Minister Robert Borden, and thus campaigned in the election of 17 December 1917 as a coalition.[23] Therefore, contrary to Russell’s assertions, the proposed Liberal-New Democratic coalition of 2008 was the only “unprecedented” element of the prorogation-coalition controversy because the parties did not campaign in the 40^th general election as a coalition. Finally, if anyone wants to argue that national emergencies warrant coalition governments, then I must point out that the scale of crisis that the recession of 2008 posed does not even come close to the futile carnage of the First World War.

Unfortunately, I suspect that to the extent that media outlets pay this interview any attention, they will proclaim Russell’s words gospel, shun any critical examination of his assertions, and gloss over the factual errors.

Similar Posts:

• Dawson and Forsey Clash on the Prorogation of 2008
• Constitutional Scholarship or Political Activism? The State of the Academy in the Wake of the Prorogation of 2008
• The True Nature of Crown Prerogative and Responsible Government
• The Constitutional Sophistry of Your Canada, Your Constitution
• Neither the Queen nor the Governor General May Dissolve Parliament Unilaterally