My column appears in iPolitics under the title, “The Wrong Way to Limit a Premier’s Power to Prorogue.” I am grateful to Doug Beazley for having published it in the “Insight” section.
The controversial prorogation of former Liberal Premier Dalton McGuinty lasted from 15 October 2012 to 19 February 2013. With the legislature back in session, the political backlash to this political tactic has just begun.
On 5 March 2013, New Democratic MPP Catherine Fife introduced a private members’ bill that would amend the Legislative Assembly Act so that the Premier could no longer exercise the judgement and discretion when to advise the Lieutenant Governor to summon and prorogue the legislature. Instead, the Premier could only offer this constitutional advice after “the Legislature has adopted a resolution in support of the prorogation.”
The bill would also require that “the Premier shall also advise the Lieutenant Governor to summon the Legislature in accordance with the recommendation of the Assembly.” The Legislative Assembly would de facto prorogue and summon itself, and the Premier would no longer be able take responsibility the act of the Crown for prorogation.
Despite the bill’s assertion that “nothing alters or abridges the powers of the Crown, including the power to prorogue, dissolve or summon the Legislature,” all the preceding sections would alter and abridge the power to summon and prorogue the legislature.
This bill would be unconstitutional because only an amendment under section 41(a) of the Constitution Act, 1982 can change anything “in relation to the office of the Lieutenant Governor of a province.”
The Lieutenant Governor’s powers to summon (and, implicitly, to prorogue) the legislature come directly from section 82 of the Constitution Act, 1867. Section 5 of the Constitution Act, 1982 further requires that the Legislature sit at least once per year, which puts the maximum theoretical duration of a prorogation at 364 days. The Legislative Assembly Act affirms those powers as part of the Constitution of Ontario.
The Constitution of Ontario includes both the Lieutenant Governor’s written constitutional power to summon and prorogue and the uncodified conventions of Responsible Government that Ministers of the Crown take responsibility for all acts of the Crown and that the Lieutenant Governor acts on and in accordance with the Premier’s advice in summoning and proroguing the legislature. Fife’s bill even acknowledges that the Premier alone advises the Lieutenant Governor to summon, prorogue, and dissolve the legislature.
This bill would limit how the Premier can exercise the discretion to advise and take responsibility for summoning and prorogation and therefore necessarily limit how the Lieutenant Governor promulgates that advice. The legislature cannot drive a wedge between the Governor and First Minister of the Crown without a constitutional amendment.
However, the Legislature could pass a bill that better defines prorogation, provided that it also preserves the respective constitutional roles of the Premier and Lieutenant Governor. The Government would only have to advise the Lieutenant Governor to give the bill Crown Consent (if the provincial legislatures, like the Parliament of Canada, also recognize this procedure).
First, the Legislature could define “prorogation” and “intersession” in statute without infringing upon the power itself. The Legislative Assembly Act currently states, “It is not necessary for the Lieutenant Governor in proroguing the Legislature to name a day to which it is prorogued.”
The Legislature could amend that law such that the Lieutenant Governor issues two proclamations (on and in accordance with the Premier’s advice): the first would prorogue the legislature and the second would summon the next session for despatch of business at, say, intervals of 40 days. The Premier could only advise the Lieutenant Governor to extend the intersession through another 40 days through a subsequent proclamation. Such an amendment would bring Ontario in line with the federal convention on prorogation.
Second, the legislature could also amend the Financial Administration Act in order restrict Special Warrants to periods of 60 days and only when parliament is dissolved. The federal parliament adopted such a reform in the 1990s. Special Warrants give the Government an emergency power to implement spending without first obtaining parliamentary authorization, which directly contradicts the historical and modern purpose of parliament. The current legislation allows the Lieutenant Governor to issue Special Warrants on and in accordance with the advice of the Government “if the legislature is not in session,” which includes both the intersessions when parliament is prorogued and the writ when parliament is dissolved.
Special Warrants are a pure statutory power and pertain neither to the written constitution nor to constitutional conventions. MPPs could simply amend section 1.0.7(1) of the Financial Administration Act to read “If the legislature is dissolved” without raising any constitutional questions. By restricting the Special Warrants to the writ, the legislature would place an indirect but practical and important limit on the duration of a prorogation. Whenever the Government ran out of money during an intersession, Parliament would have to be recalled in order to approve any additional spending.
NDP leader Andrea Horwath has touted this bill as “taking the politics out of prorogation.” In reality, this bill would inject even more politics into every subsequent prorogation – particularly in a minority parliament – and would be unconstitutional. Thankfully, the Legislature could amend the bill at committee so that it both promotes the same principle of better defining prorogation and conforms to the constitution.
James W.J. Bowden is an M.A. Candidate at the University of Ottawa.
- Crown (Powers) — Prorogation
- David Onley Defends Responsible Government
- McGuinty Had Every Right to Prorogue
- In Vogue to Prorogue?
- Prorogation Should Remain a Prime Ministerial Power
- Peter Russell on the Prorogation-Coalition Controversy of 2008
- Prorogation as a Prime Ministerial Delay Tactic: A Legitimate Parliamentary Tool, Not “Abuse of Power”
- Neither the Queen Nor the Governor General May Dissolve Parliament Unilaterally