Wednesday, 17 October 2012

Prorogation & the Problem of Civic Illiteracy

In media and partisan circles, the greatest reaction to Ontario premier Dalton McGuinty's decision to step down has been over his decision to prorogue the legislature his way out the door. Indeed, prorogation itself has become a four-letter word, something to be reviled as inherently unjust, sneaky and, above all, anti-democratic. This is no doubt the product of the 2008 prorogation crisis in Ottawa. The current issue, however, has also raised once again the reality that ordinary Ontarians and, more troubling, our supposed professional pundit class have little grasp of the basic concepts of governance in this country.

While it is perhaps unfair to explicitly single a single question on a single program, it is nevertheless illustrative, particularly given the stature of the program and the individual. On the 16 October episode of TVO's The Agenda with Steve Paikin, the moderator asked a squirm-inducing question of the two leaders of the opposition. Pointedly to both Progressive Conservative leader Tim Hudak, and New Democrat Andrea Horwath, Paikin asked if either had considered going to the Lieutenant-Governor and demanding that he "un-prorogue Parliament". This is an extremely troubling question coming from one of the most knowledgeable and respected observers of our political system.

While both leaders answered the question in the negative - Horwath indicating that she looked into it but found it impossible to do - neither leaders nor the moderator addressed the basic - and fundamental - question of exactly why this particular course of action would be ruled out. The answer cuts to the core of responsible government.

Within the Canadian system, powers of the Crown - federally through the Governor General and provincially through the Lieutenant-Governor - have long since been democratized by the institutionalized Cabinet which is drawn from the legislature and therefore is responsible to it. In most cases, the powers of the vice regal representative - and thus the Crown - are proscribed, limited and made accountable in that they are exercised on the discretion of the political executive through advice. Even so-called discretionary powers - to call or dismiss a legislature - are limited essentially to advice from the Crown's advisers.

The only advisers to the Crown - and thus the only ones legitimately able to even approach the vice regal to offer advice - are those in the appointed ministry: the Cabinet headed by the First Minister. For Horwath or Hudak to even approach the David Onley to demand is recall the legislature would be unconscionable and grossly unconstitutional. The act in itself would be an act repellent to the very nature of responsible government.

To suggest also that perhaps Onley should have refused to prorogue is problematic. The differences between the Harper prorogation and the McGuinty prorogation are significant. The late Eugene Forsey's work on the subject of dissolution of Parliament is instructive here. In his Royal Power of Dissolution of Parliament in the British Commonwealth he lays out some of the criteria for accepting the dissolution of Parliaments in light of the King-Byng and this is applicable to the question of prorogation. In McGuinty's case there several reasons why the prorogation is acceptable. First, while one minister was facing a contempt charge, the government itself was not facing censure by the legislature. Related to this, the government was not facing a an imminent vote of confidence. There was no danger of the government falling. To use prorogation as a tool to avoid the censure of the house would certainly be problematic. Second, there was no pressing legislative agenda on the table. With no core legislative agenda, the imperative of keeping the house in session is reduced. Third, the act of prorogation in and of itself is a perfectly acceptable tool of government. It has drawn so much attention now because of its misuse twice by the Harper government in order to avoid facing the House and the prospects of his government collapsing. These are not at issue here.

Additionally, to suggest as some have that the Lieutenant-Governor should have countered McGuinty's demand by asking the opposition to form a ministry is also beyond the pale of idiocy. The government has neither resigned nor been defeated on a matter of confidence. There is no leeway here. Until the government falls in the assembly or decides to resign it remains in place. The vice regal has no recourse to change a government on a whim.

There are two problems, however, with the use of prorogation. On the one hand, enough time has elapsed from the previous election - just over a year - to make an election call an option. If the legislature is indeed deadlocked and no progress can be made an appeal to the people could be desirable. The standard incumbent line that "Ontarians don't want another election" does not render invalid an appeal to the people. If the process has broken down or reached an impasse the people should be asked to remedy the situation.

The second problem with this prorogation is that it violates the spirit of what these breaks are for. This is not about a 'retooling' of the agenda (as Harper one put it) or a desire to consult with the opposition in a less rancorous atmosphere. The desire is, essentially, one of partisanship and completely unrelated to the question of executive prerogative. Prorogation was used as a timeout, not to improve governance, but to allow the Liberal Party of Ontario to undergo a leadership contest in an environment not available to the opposition parties and which guarantees the party's political control during this period. It is, in effect, the use of prerogative powers for private use.

In fairness, there is at least one valid reason for taking this route. There would be a genuine danger that, if there was a leadership race with a sitting legislature in a minority setting, that the combined forces of the opposition would take partisan advantage by defeating the government. Ontarians are better served by an election in which all three of the parties - including the incumbent government - have coherent platforms articulated by a leader.

Two related points also need to be made. It should be noted that requirement for the sitting of his legislature has already been met. Constitutionally a legislature is required to sit at least once during a twelve month period. Moreover, the argument has been made that prorogation is an evasion and gross violation of the basic principle of responsible government that a political executive be held to account by an elected legislature. This runs into a problem on two grounds. First, the legislature has not been dissolved but merely suspended. Moreover, as is quite obvious, the legislature does not sit continuously. It takes long breaks intermittently and of various length. To claim that responsible government ceases during these periods would be a stretch. It is worth remember that there is more to the responsible government than simply the relationship between the executive and the assembly. The role of the Cabinet in ensuring accountability is also central. As such, the use of executive powers by a democratically elected body is also essential. This continues regardless if there is a house in session or not.

Yes, McGuinty has violated, in part, of the spirit of responsible government. As I mentioned above, he has not done so to avoid a motion of confidence and there is no vital piece of legislation on the agenda. Yet there is something about the use of prorogation that has become anathema. If the Premier had used other means at his disposal, for instance, to shorten the number of scheduled sitting days or expand the recess without resetting the assembly, it is unlikely there would have been this much of an outcry. Unfortunately, a legitimate mechanism has been rendered, in effect, as illegitimate largely because of its abuse by the federal government.

This is a problem of optics and expectation over constitutional reality. The expectation that a legislature must be in session or else appear to be 'not working' is endemic. There are legitimate instances in which pauses are desirable and, indeed, necessary. A legislature should not sit solely for the sake of sitting. There needs to be a substantive policy agenda beyond partisan jockeying. An opposition devoting itself solely to undermining a government is not fulfilling its obligations. The question of prorogation does not fit neatly into a discrete binary of good or bad. It is much more complicated and defies the treatment is typically receives. Yes, the optics are bad, yet this is a government which, by all accounts, still retains the confidence of the house and is therefore entitled to advise the Crown to hit the reset button. Prorogation will become a problem, however, if its length becomes excessive. That is the danger in this situation. A prolonged and protracted race for the premiership - and thus the length of the break - will be the problem, not the act in itself.

The question of prorogation here is ultimately a political one. It passes the constitutional and prerogative test. Once again, however, the incident exposes a troubling lack of knowledge and understanding of the political process by those who profess to offer insight and make claims to expertise. While the concept of prorogation has become more clearly understood - thanks largely to its contentious use by the Harper government - a more comprehensive understanding of political processes - particularly around the dissolution of legislatures and the formation of governments - is still entirely lacking. In an ideal world in which journalists had full knowledge of what they purport to cover, the question asked by Steve Paikin on the Agenda would not have been asked at all. Moreover, the response from the opposition leaders should have been simple and to the point: "No, Steve, that would be unconstitutional". This incident reveals not a crisis of responsible government, but a profound crisis of civic literacy. When the media, politicians and voters have no clear working understanding of our political system , that is the true threat to responsible and accountable government, not the act of prorogation. 

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