Prorogation subverts democrasy. Who knew?

Jeff Green | Sep 27, 2019

Lately it has been a lot of fun looking at the mess the United Kingdom has got itself into from the safe vantage point of Canada.

Since we borrowed/inherited the UK’s parliamentary system, the way that Brexit has played out over the last 18 months provides a pretty good hint about what might have happened in Canada had the Quebec referendum in 1990 produced a thin yes result instead of a thin no result.

The stakes are very high for residents of the UK in all this, of course, and the way it has filtered through the UK parliamentary system has made it increasingly difficult for most people in the UK, and almost all of us outside of the UK, to follow.

But while it has been chaotic, the UK is at least working out its most important policy issue, its economic and political ties to the European Union, in public and according to a set of rules, as fragile as those rules may appear.

A couple of weeks ago, the current (I’m writing on Tuesday) British Prime Minister Boris Johnson, decided to use the obscure parliamentary tool of prorogation to allow him to negotiate or reject a deal with the European Union without parliament interference.

Many who follow politics in Canada remember prorogation because two of our governments have used it as a means of remaining in power in recent memory.

In both of those cases, Stephen Harper in 2008 and Ontario Premier Dalton McGuinty in 2012, A minority governmens used prorogation to suspend the proceedings of an elected body in order to buy time.

Stephen Harper was facing a united front intent on removing him from office. Prorogation allowed him enough time for a tenously united opposition that was poised to remove his Conservative government from power, which included the Bloc Quebecois, to disintegrate. The technique worked and he remained in power for almost 8 more years.

In Ontario, Dalton McGuinty was facing a political scandal over the cancellation of a 2 natural gas plant contracts for overtly political reason, which cost the province over a billion dollars in penalties and exposed members of cabinet to criminal investigations. The Mcguinty case was substantially more egregious than the Harper. Mcguinty resigned and prorogued the legislature for over 6 months before his replacement, Kathleen Wynne, faced the legislature.

In both cases, it was an appointee, Governor General Michael Jean in the Harper case, and Lieutenant Governer Toni Only in the McGuinty case, who was left with a decision to make. Both of these positions are primarily ceremonial, and both Jean and Only later wrote that they felt they had no real choice but to grant the requests given the nature of their roles.

In the Canadian context, there is no court remedy for those who think that successive provincial and federal governments have been using prorogation as a political tool to circumvent the power of parliament.

The Federal court ruled in 2009 that in order to challenge the way prorogation works in Canada would require and amendment to the Canadian Constitution Act of 1982.

But lo and behold, back in the UK, the Supreme Court ruled today that prorogation can not be used as means of subverting the authority of parliament to hold the government to account, and order Parliament. And that is that. An obscure legislative device which was never intended to be used except in a narrow procedural context cannot be used by a government to avoid the will of the elected Parliament. The court said the prorogation order is “void and of no effect”.

That sounds, to me, like a robust democracy.

How is it then, that Canada, with the benefit of its own constitution, is hanging on to obscure interpretations of the British parliamentary system that are easily jettisoned by the UK supreme court because they clearly subvert the very idea of democracy.

Somehow, through our own Supreme Court some other mechanism, Canada needs to find a way to be able to answer bogus attempts to subvert democracy in such clear and simple terms.