Saturday, 20 October 2012

Prorogation, Convention and Democratic Legitimacy

On TVO's The Agenda, constitutional scholar Peter Russell makes the case that the recent prorogation of the Ontario legislature by out-going premier Dalton McGuinty was illegitimate and that the manner in which he terminated the current session of parliament violated basic practices and conventions around the use of what is, when used correctly, a legitimate tool of parliamentary governance. Russell criticizes the move on the grounds that it violates basic principles of Canada's constitution, namely responsible government.

'Responsible Government' is a fluid concept, one that - quite obviously, as it is a convention - is difficult to pin down precisely. There is a simple definition and there are more involved and expansive variants. On the simplistic side of the spectrum responsible government is simply a political executive being held accountable by the elected assembly. In Canada's case, the cabinet is held to account directly by the House of Commons.

A more involved definition combines this with a form of cabinet government in which the cabinet is held accountable on three grounds. First, individual ministers exercise ministerial responsibility. They are held to account for their own conduct and for the conduct of their ministries. Second, the cabinet as a collective is deemed responsible for its actions. This is the principle of collective responsibility. Third, cabinet is a collective decision-making body which exercises collective action in a unified manner. This is the principle of cabinet solidarity. The public face of the executive is one of unity.

There is also a corollary to the exercise of responsible government. Not only is the political executive accountable to the legislative assembly, but this also represents a democratizing of monarchical power. The powers once associated with the Crown are now exercised by those who do so in accordance with the popular will and retain the confidence of the elected assembly. This democratizing of executive power is reverse side of the responsible government coin.

Professor Russell, for whom I have greater respect and admiration, is entirely correct. The cynical move by the Dalton McGuinty to prorogue the legislature now is a violation of the principle of responsible government. The result is, simply put, that the act is a clear violation of principle of a core constitutional principle.

Russell also challenges former Liberal insider John Duffy's claim that, on the contrary, the act was, on the whole, constitutional. To Russell, Duffy's assertion is, bluntly put, dead wrong. I think a greater degree of nuance is required here. We need to reconcile the legitimate exercise of executive power with parliamentary scrutiny.

In a very technical sense, Duffy is entirely correct. Practice, as it has developed over time into a convention, stipulates that it is unconstitutional to prorogue - or dissolve in the extreme case - a parliament once the confidence of the House has been lost or has been challenged. Once this confidence evaporates, the exercise of prerogative powers in this regard is illegitimate and unconstitutional.

Russell's challenge is much more broad and takes into account the motivation for the prorogation. The spirit of responsible government has been broken simply because - on the face of it - the move was designed solely to evade parliamentary scrutiny and to essentially conduct labour negotiations outside the scrutiny of the legislature in a 'less rancorous' environment.

Here is the problem of Canadian governance. It is entirely possible to occupy two contradictory positions at the same time. In this case, the motivation for proroguing may be unconstitutional while the manner in which it is carried out may be entirely constitutional. In this case, the two core components of responsible government - accountability before the legislature and the democratic exercise of prerogative powers by an accountable executive - are in direct competition.

The latter point demonstrates a core problem of relying on convention. Constitutionally the powers of the monarch are exercised by the political executive - sometimes the cabinet as a whole, often by the first minister acting alone. Genuine discretionary powers of a vice regal - the Governor General at the federal level or the Lieutenant Governor in the provinces - are few and far between and, even then, are much proscribed and limited to actions taken on advice. In this case, while the power to prorogue rests with the Lieutenant Governor, it is exercised on advice. To refuse advice from a premier, in this case when the confidence of the government is not in question, would be to violate this component of responsible government. For the Crown to refuse to accede to the request of a minister here would be unconstitutional itself.

The prorogation may well be unconstitutional  but the manner in which it was accomplished may be above board. Duffy errs because he looks solely at the constitution as a mechanism, rather than a set of fundamental principles. How the premier prorogued certainly met the basic litmus test. Why he prorogued does not.
The means may be verified, but the motive and outcomes also matter.

This confusion speaks to a larger issue. A core cognitive problem emerges when we discuss conventions, given their ephemeral, fluid and inherently intangible nature. They are hard to pin down because they are unenforceable. They development and perpetuate by practice. By contrast, elements stemming from the written text - the Constitution Act - are more easily digested and understood. We can point directly to a section of the written text and understand quite clearly whether a clause has been broken or not. With conventions the case is less clear cut. Often it is a matter of degrees. Moreover, these principles are utterly unenforceable except by the political actors themselves.

In the 1970s, then Prime Minister Pierre Trudeau, frustrated by the lack of progress after yet another decade of deadlocked constitutional negotiations, planned to break the impasse by legislating in areas of Parliament's own jurisdiction. Among the proposals was for the principles of responsible government to be codified. The plan failed, but perhaps it is time to reengage with the task of establishing more clearly delineated rules and procedures. While legalizing the principles of responsible government would be a mistake, it is worth at least - as Russell and others have forcefully argued - to at least set down some basic rules and expectations about the use of Crown powers, particularly around prorogation.

Retaining the conventional nature of many of our constitutional principles is beneficial. Their fluid nature allows for more easy adaptation to changing political realities. It avoids some of the rigidity and deadlock often associated with the American political system. Yet because they are not codified and they lack legal force, conventions are easily abused by politicians who are entrusted to uphold and respect the constitution yet manipulate it for their own - often partisan - ends.

Finally, there is a question of precedence. Can one convention be used to override another? Moreover, what happens when the same convention - for instance, responsible government - contains within it an inherent ambiguity and contradiction? The McGuinty prorogation gives these questions a sense of urgency. Constitutional means can clearly be used for unconstitutional ends. This engenders another problem. Do we uphold one principle by violating another? For the Lieutenant Governor to refuse prorogation would have been equally problematic, an unconstitutional exercise of powers. Clearly the rules of the game need to be made more apparent and readily accessible. Moreover, there need to be penalties, yet recent history illustrates that a party can be handily rewarded for violating basic principles of democracy. The Harper majority is the clearest proof of this.

At the core of conventions are not questions of legality but of political legitimacy. This is, for instance, at the core two key Supreme Court cases dealing with conventions. In the Patriation Reference the court took note of the legality of a unilateral patriation but warned that such a move would lack legitimacy. Similarly, the the Secession Reference placed questions of legitimacy to the fore. Democracies require more than simply a technical adherence to the written letter of the law. They must adhere to the spirit of the law and the basic principles it underwrites. Democracies, in short, require legitimacy in equal measure. Our constitutional conventions give shape to this spirit by animating the process by which our political process retains its legitimacy.

The past years have witnessed a troubling trend in Canadian politics in which constitutional principles have been cast aside in a strict adherence to the letter of the law. The federal government has prorogued the House twice in questionable circumstances. The Senate has struck down legislation passed by the elected House of Commons. Legislatures in British Columbia and now Ontario have been cast aside as hindrances.  The defence has been simplistic and hollow: "it's not illegal". Acts are justified, not on principle, but rather on a cold, heartless and utterly unjustifiable defence of being 'technically correct'. The rule of law, however, becomes hollow when the basic principles of a polity - responsible government and democracy - are cast aside. Its value is diminished without some semblance of legitimacy.

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