Once a year for the past three years Prime Minister Stephen Harper has successfully asked Governor General Michaelle Jean to summarily terminate a session of Parliament.
In agreeing with each of his requests, Jean was guided by a constitutional convention established well before her time. It stipulates that the governor general dissolve or prorogue Parliament on the advice of the prime minister.
But all of Harper’s recommendations involved an aggressive partisan use of the discretion of the prime minister.
In every case, his advice went against the will of the majority in the House of Commons.
In the first instance, Harper also set aside his own legislation so as to move forward an election. To Jean’s defence, she could hardly have guessed, at the time of the 2008 election, that the prime minister would take a shine to his capacity to have Parliament disposed of at his political convenience.
Last year, she hauled Harper in for the better part of a morning before accepting his recommendation to close down Parliament rather than have his Conservative government face a non-confidence vote. The message then was that she felt she did have some latitude to deal with Harper’s advice. But when he called to ask for yet another prorogation last month, she apparently was not inclined to exercise that latitude.
A pattern had now been set that the governor general is at the beck and call of the prime minister of the day, regardless of whether his advice reflects the will of Parliament as expressed in laws or through the voices of a majority of its elected members.
This is a situation that no bill, including the one NDP Leader Jack Layton plans to bring to the House, can fix. He is proposing that future prorogations be subject to a vote in the Commons.
Even if it were adopted, it would almost certainly suffer the same fate as the fixed-date law set aside by the prime minister when he called the last election.
Last September, the Federal Court ruled on that particular episode. Its answer was unequivocal.
It found that the fixed-election law neither superseded the constitutionally enshrined powers of the governor general to dissolve Parliament nor created a new constitutional convention that limited the discretion of the prime minister to seek dissolution.
On the same basis, Layton’s legislation would likely be no more binding on the prime minister (or the governor general).
There is a foolproof way to make the prorogation and dissolution powers of the governor general contingent on the will of the Commons, but it would involve amending the Constitution and such an amendment would require the unanimous backing of the provinces. So far, no party has advocated going down that route.
Instead Layton is insisting that the first purpose of his bill would be to “inform the governor general” of the will of the House.
If polls are to be believed, the current minority cycle is unlikely to end in the next election. The odds that the Governor General could be dragged further into the political dynamics of the next Parliament are high. Jean’s own term at Rideau Hall is almost up. In September, it will be five years since she became Governor General.
In the absence of parliamentary reform of the prorogation process, it will be interesting to see if Harper picks a successor for Jean with the political backbone and credibility to take the self-interested advice he or she might receive with a bigger grain of democratic salt.
Chantal Hebert writes for The Toronto Star Syndicate.