Harper’s Prorogue Precedent
At the end of 2008 Stephen Harper asked Governor General Michaël Jean to prorogue parliament as a stalling technique in order to save his minority Conservative government. Now it’s reported that he’ll do it again. And again he’s plotting the move as a stalling tactic to get his Conservatives out of the hot water into which they’ve plunged. Let’s examine how Harper is taking advantage of the precedent he set in 2008.
Backtracking, I’ll start with the recent news reporting that Harper will ask the Governor-General to prorogue parliament today, until the end of March 2010 (after the Winter Olympics). Without the prorogue, parliament would otherwise resume on 25 January 2010.
Why would Harper want this extended prorogue? Several reasons seem to benefit the Conservatives: one is that a bunch of bills will die1, another is that it buys them time to dilute their scandals or otherwise cause the scandals to fade from the public memory (e.g. afghan torture, imbalanced stimulus money, environmental inaction, etc.), finally it gives Harper a chance to take over the Senate with Conservatives. According to CTV’s2 (30 December 2009) chief political correspondent, Craig Oliver:
“”(Prorogation) has the great convenience of course of getting this government out of any kind of political trouble, because Parliament will not be sitting until after the Olympics. . . The plan is for the government to come back with a very brief throne speech just talking about what’s to come in the economy, and then a budget probably in days.”
Prorogation will also serve another purpose, Oliver said. Harper will likely appoint another group of new Senators, which will mean the Conservatives will finally hold a majority in the Red Chamber, and by extension, on Senate committees, Oliver said.”
Shouldn’t we be surprised that Harper wants to appoint unelected Senators? No, it’s perfectly consistent with his lies about reforming the Senate. He’s striving for Conservative control with a total disregard toward improving the democratic process. He already acted contrary to his own words on the subject and has proven he has no accountability in this regard.
The London Free Press3 (30 December 2009) pointed out how the prorogue would shut down further inquiry to the Conservative Afghan torture scandal.
“Preventing the return of Parliament until after the Olympics would effectively shut down all government committees, which would stop MPs from pursuing the Afghan detainee controversy until Parliament returned.
“If the government attempts this manoeuvre, it’s a shocking insult to democracy,” said Liberal House Leader Ralph Goodale. “The government is in a very sticky place with respect to Afghan detainees and they’re running from accountability here — this is a cut and run government.”"
It’s worth noting as well, that preventing Parliament from functioning until after the Olympics, stands a good chance of replacing the negative opinions on the Conservative minority government from fomenting in the public eye and instead replacing them with the optimism and goodwill likely produced through the spectacle of the Olympics. The world’s eyes will be on Canada and all the press will be covering the events. Not only would Parliament resume at a time when the public is in a generally positive mood toward Canada but also much of what had happened prior to 2010, will have effectively been wiped clean from the public memory. The Tories are masters of spin.
So what was going on this time last year: the Conservative minority government found itself in very hot water. It had just come out of an election in which Canadians were once again unwilling to vote-in a Conservative majority government. As parliament met, the Conservatives washed aside real consideration for the economic crisis, instead presenting an inadequate budget that did more to play partisan games than to suit Canadian needs or to develop an effective parliament (minority government are supposed to get the other parties of parliament to cooperate with them on a mutual agenda, the Tories prefer to obstruct parliament).
The opposition parties met and decided two things. First, that they’d lost confidence in the minority Conservative government (Stephen Harper as PM lost the confidence of the house), and second that they could form a stable coalition to serve as an alternate government. According to a Globe and Mail4 (3 December 2008) article, which included this point from University of Saskatchewan constitutional scholar David Smith
“As for the opposition parties and their coalition plan, the expert consensus is that they’re following to the letter the precedent established in Canada for the sovereign’s representative to approve a change of government without an election.
The test that has to be met is, first, has the government lost the confidence of Parliament?; second, has an election just occurred?; and, third, is there a viable alternative to the government?”
Nevertheless Stephen Harper ran and asked the Governor General to either dissolve (require a new election–an unlikely option after just coming out of one) or prorogue parliament rather than face the vote of non-confidence by the opposition.
He used this delay tactic to sow fear, uncertainty, and doubt on the proper plan of the opposition and our democratic process. The Conservatives presented the public with false rhetoric about the options (going to the polls again or accepting a coalition representing the majority of the votes).
In the same Globe and Mail article cited above, it identifies some of the difficulties involved in the situation.
“Using prorogation to duck a confidence vote that would terminate the Conservative government is unprecedented, and, although the Governor-General has the power to refuse Mr. Harper’s request, she likely would find herself in stormy constitutional waters if she did.
However, she’d be on firm ground if she granted him a qualified prorogation, severely limiting his ability to govern until he faces the opposition parties in the House of Commons, one of Canada’s leading experts on parliamentary procedure said yesterday.
Queen’s University political scientist C.E.S. Franks said an unprecedented use of prorogation could validly be met with an unprecedented use of the reserve power of the Queen’s representative – the power that can be exercised by the head of state in a parliamentary system without the approval of another branch of the government.
In effect, the Governor-General, by agreeing only to a qualified prorogation, would declare that the government exists in the same state as during an election campaign: unable to carry out anything but the most routine operations, barred from making appointments, executing new policies or authorizing major expenditures. The reason for this is that nobody knows which party ultimately will have the confidence of Parliament.”
Another Globe and Mail article5 (2 December 2008) discussed the Governor-General’s options (written by historian Bob Beal). It explains
“If the House decides it does not have confidence in the present government, the Governor-General will have to wonder if the House might have confidence in a different government drawn from the same House. . . .
Constitutional experts say in that situation the most minimal use of the Royal Prerogative would be to let the House get on with its work and let a new prime minister test the confidence of the House.
Accepting the prime minister’s advice for dissolution and an election in the present situation is also a possible, and proper, use of the prerogative. But that would establish a precedent, so far unknown, of the Crown interfering in the work of a newly elected House when it seems possible a new prime minister might be able to command the confidence of the House.
The current Prime Minister could ask the Governor-General to prorogue this session of Parliament, to delay the work of the House until the New Year, an exercise of the Crown’s reserve powers. That request would raise questions that have never been raised before. It seems a murkier situation than a request for dissolution would be.
The Governor-General could refuse a prorogation request on the same grounds as refusing a dissolution request, that the refusal would represent the most minimal use of the Crown’s powers and the least Crown interference with the work of the House. This session has hardly begun, and a confidence vote is scheduled within days.”
As we now know of course, the Governor-General did accept the prorogation request but oddly, not as a qualified prorogation. This stance did not seem to fall in-line with the regular process that would be expected to occur. The process I would have expected, would be that the non-confidence vote would have been allowed, and then the alternate government would be given its chance. But it also allowed the Conservatives to continue governing, making appointments, policies, etc. In fact, as the CBC6 reported (22 December 2008), Harper went ahead and appointed eighteen people to the Senate during the prorogue–trying to increase its total number of Conservatives.
“The deluge of appointments sets a record for the most Senate seats filled in a single day and is part of Harper’s efforts to ensure a Tory toehold in the upper chamber. Until now, the prime minister refrained from filling most of the vacancies — with the exception of two — because of his long-held position that those sitting in the Red Chamber should be elected.”
Even though the majority of Canadians did not vote for the Conservatives, even though all opposition parties (which did, collectively enjoy the majority of Canadian votes) were set to vote non-confidence in Harper and his Conservatives, the Governor-General allowed parliament to be put on hold, while Harper had free reign to continue acting against the majority of the Canadian will. Why?
In a Globe and Mail roundtable discussion7 (2 December 2008), John Manley (former liberal MP), referring to the Governor-General said
“I think the advice that she would probably receive would be that if the purpose of the prorogation is simply for the government to avoid facing a vote of confidence in the House of Commons, then that’s not an appropriate use of the prorogation of power. I’d be surprised if she agreed to that.
I also think that refusing the advice of the Prime Minister to grant prorogation would be entirely unprecedented. We’re going to see something for the very first time with this. . .”
She didn’t refuse the PM. I would guess that the argument in favour of the Governor-General’s position at that time was that she should act in the way that involves only the most minimal use of the Crown’s powers so as to interfere as little as possible with with the work of elected representatives.
Thus her decision could have been based on an idea that granting whatever the prime minister wanted would be the least interfering action. In other words not asserting her will, which could be contrary to the PM’s. Unfortunately, in that situation, her action actually interfered far more with the functioning of our democratically elected representatives than if she had either allowed the non-confidence vote (and then the alternate coalition to govern), or even granted a qualified prorogation.
It also set a precedent that the Governor-General essentially rubber stamps the PM’s advice when it comes to proroguing parliament. Stephen Harper, having caused that precedent to be set is unashamed to repeatedly use it to his advantage.
December 2009 and we’ve learned that when the Conservative minority government is most likely to fall, is faced with Canada’s greatest hardships, holds no confidence, or is being battered by its own scandals, it runs away. It tries to buy itself time to diffuse its problems or whitewash them in the public eye.
Stephen Harper has a free pass to buy himself time with another extended prorogue because of the precedent he established with the Governor-General in December 2008. While parliament is stuck doing nothing, he gets to continue his Conservative agenda by stuffing the Senate with his cherry-picked, unelected officials–remember his pattern, it’s what he did last year.
To leave this subject, I’d like to ask, aside from political opportunism (the Senate issue), why else might Harper go so far as to request the extended prorogue?
He has more information about the goings-on of the Conservative minority government, he has the information on the Conservative Afghan torture scandal, which won’t be released. While that’s a hot issue, it isn’t threatening his government to the extreme that 2008′s non-confidence vote/coalition did. Perhaps Harper knows that what is yet to come from the Conservative scandals will reach a point that boils past the level we saw in 2008.
(Follow up from the Toronto Star after the Governor-General granted Harper’s request)
