If there is a deepening debate about prorogation and democracy in Canada what does it mean?

Jan 18th, 2010 | By | Category: Ottawa Scene

Public debate on minority Conservative Prime Minister Stephen Harper’s decision to “prorogue” the Parliament of Canada, until March 3, 2010, at least seems to have grown to a greater degree more quickly than many who follow such obscure events at first imagined. And I am among those who have been pleasantly enough surprised.

At the same time, the dean of Ottawa pundits Jeffrey Simpson may still have a point when he argues that: “Prorogation … shows Canadians nothing new, just another window on the old, and what they have seen in the past four years hasn’t yet bothered enough of them remotely to threaten Mr. Harper’s grip on power.”

The current debate has also demonstrated right up front that the complexities of the prorogation process in Canadian political history are largely unknown to many observers of contemporary Canadian federal politics. Brian Lilley, eg, Ottawa Bureau Chief for the Toronto radio station Newstalk 1010 (CFRB), has urged that aspiring commentators should at least “glimpse over” the relevant past before rushing to rash present judgments.

The Conservative guru from Newfoundland and Labrador Tim Powers has similarly argued: “This year Canada will turn 143 years old and there have been 105 prorogations [since the start of the present confederation in 1867]. Just because of their political dominance during the 20th century, the vast majority would have been by Liberals. So what is the policy going forward on their use? Please explain.”

Impressed by such arguments, I have spent various spare moments over the past few weeks on a quick and dirty but I hope not altogether pointless look at the deeper background to the prorogation of Parliament in Canada. This has included some rummaging around in textbooks and on helpful institutional and other web sites. I have looked hastily at the Canadian past, all the way back to 1867. I have also cast a few glances sideways at the more recent experience in such related parliamentary democracies as Australia, India, and the United Kingdom.

Not everyone will be interested in the resulting details sketched at some length here — more than anyone ever wanted to know about the Canadian and related experience with the prorogation of Parliament, etc, etc. And even with all the space I have taken up, I certainly can’t pretend to offer any comprehensive investigation of the subject. Yet in democracies, according to John Stuart Mill, the truth will arise through the clash of opinion. My aspiration is that, for some discriminating and energetic readers, what follows will enrich the clash of opinion on Prime Minister Harper’s two most recent controversial prorogations of Parliament in Canada today.

What is “prorogation”? — introductory definitions …

According to the Shorter Oxford dictionary,  “prorogue” means: “To discontinue the meetings of [a legislative or other assembly] for a time without dissolving it.”

When a particular elected Parliament of Canada is “dissolved,” that is to say, it is over forever, and the practically sovereign Canadian people must choose another one in a fresh election. The executive branch of government can discontinue the meetings of a particular Parliament without holding a fresh election, however, by merely proroguing it.

MALLORY’S TEXTBOOK EXPLANATION

A passage in J.R. Mallory’s now venerable enough text on The Structure of Canadian Government (1971, 1984) goes into somewhat more detail [see pp. 222-223 of the 1971 edition]:

“Each session of Parliament must be brought to an end by … prorogation. Like the summoning of Parliament, this is one of the powers of the Governor General, exercised on advice, and is thus one of the ways by which Cabinet can control a recalcitrant House. Prorogation has the effect of bringing all parliamentary business … to an end.”

The late Professor Mallory [1916–2003] goes on: “Similarly, prorogation will bring any committee business to an end. This was an important constitutional issue in 1873, when [then Governor General] Lord Dufferin was waited on by a deputation of ninety Liberals urging him to refuse to agree to a prorogation request by the [John A.] Macdonald [Conservative] government. The effect of the prorogation, as everyone knew, would be to terminate abruptly the work of a parliamentary committee investigating certain matters connected with the Pacific [Railway] Scandal.”

Most prorogations since the present Canadian confederation began in 1867 have been more routine than the one Lord Dufferin finally granted John A. Macdonald in 1873 (“with reluctance” Mallory notes). Yet, as Professor Mallory also explains: “The prorogation… of Parliament before a session has lasted a reasonable time is unusual, and rightly thought to show a lack of respect for parliamentary institutions.”

SOME FURTHER CLARIFICATIONS

A few further points of clarification are worth noting quickly.

In Canada, eg, each Parliament (we are now in the midst of the 40th Parliament since 1867) is typically divided into “sessions.” Ordinarily, when the business of a particular session is over, Parliament is prorogued for a time. Then a new session begins, and the business of the new session is set out in a new “Throne Speech” from the government. (Thus the Harper minority government will be presenting a new Throne Speech — read by the Governor General in the Senate chamber — when the present prorogation ends, on March 3, 2010.)

Prorogation is not the only way in which the meetings (or sittings) of Parliament can be discontinued for a time — or, if you like, the only way MPs can be given some time off. The meetings of a particular Parliament can also be discontinued by an adjournment or  “recess.” But this does not  bring the business of a session to an end. And it is not something decided upon by the Governor General as advised by the prime minister, but by Parliament itself.

According to the Canadian House of Commons Procedure and Practice, Second Edition, 2009, eg: “An adjournment is the termination of a sitting …  An adjournment covers the period between the end of one sitting and the beginning of the next. It can be of varying duration—a few hours, overnight, over a weekend, a week or longer. While prorogation and dissolution are prerogative acts of the Crown, the power to adjourn rests solely with the House … the term “recess” is also used in reference to a lengthy adjournment.”

Or, as Professor Mallory explains, prorogation is unique because it is “one of the powers of the Governor General, exercised on advice” (ie a prerogative power of the Crown, nowadays exercised practically by the prime minister), and because it “has the effect of bringing all parliamentary [including committee] business to an end. Thus any bill which has not gone through all stages in both Houses and received royal assent will die, and must be commenced again de novo at a subsequent session.”

At the same time, a few Canadian rules and/or practices have changed somewhat since Professor Mallory’s textbook was first published.  For a more exact update see House of Commons Canada, Prorogation of Parliament; esp: “The Standing Orders [now] provide for the automatic reinstatement of all items of Private Members’ Business in a new session. Committee work may also be revived either by motion in the House, or in committee.”

The broader context: prorogation in other “Westminster” parliamentary democracies

As most Canadian voters still more or less appreciate, the Constitution of Canada is still “similar in Principle to that of the United Kingdom” (see the preamble to the Constitution Act 1867).  This is also true of such other members of the present-day Commonwealth of Nations as Australia and India. And a quick look at these other countries provides some deep background to the history of prorogation in Canada.

In its broadest sense, that is, “prorogation” is a practice that has evolved out of the history of British parliamentary government (or “Westminster” government, after the City of Westminister in London, which hosts the British “Mother of Parliaments,” in the vocabulary of an earlier era). Prorogation is similar in principle but somewhat different in its detailed operation in such parliamentary democracies as the United Kingdom, Canada, Australia, and India today.

I certainly can’t pretend to any comprehensive comparative survey of prorogation practices in these four places. But my hasty impression from what is most accessible on the net is that the current practice in Canada may retain something of a primordial political (or perhaps politicized) edge, that is nowadays less prominent in the other three countries.

Or, as Mallory put it, the tradition in Canada is that prorogation is “one of the ways by which Cabinet can control a recalcitrant House.” My hasty first impression, at any rate, is that in the United Kingdom, Australia, and India it has become somewhat more routinized or rationalized,  and thus less useful in facilitating executive domination of the legislative branch of government.

UNITED KINGDOM

According to www.parliament.uk, in the United Kingdom (as in Canada): “Prorogation marks the end of a parliamentary session.”

In Canada, however, a session nowadays can still vary a great deal in length, apparently depending on executive whim or other design. But in the UK: “A session of Parliament runs from the State Opening of Parliament —  usually in November — through to the following October/November,” although “if there is a general election, the session begins after the election and runs to the autumn of the following year, eg May 1997 through to November 1998.”

The Harper minority government in Canada, in the wake of criticism of its most recent prorogation, has made some noise about starting a practice of annual prorogation.

The current model here may be the United Kingdom. But the earlier Canadian confederation of 1867 also tended towards annual prorogation — a point to which I will return later.

AUSTRALIA

Prorogation in Australia seems to be a somewhat different practice again — at least at the federal level of government.

According to the Australian Parliamentary Education Office: “The House of Representatives can only meet for three years from the opening of the Parliament before its members must face re-election.” (The comparable maximum term in Canada, the UK, and India is five years)

The “Governor-General can bring the House of Representatives to an end before that time, on the advice of the Prime Minister, by dissolving the House … Before dissolving the House … the Governor-General issues a proclamation proroguing the Parliament. Prorogation is an ancient power of the British Crown adopted in the Australian Parliament as the means of bringing a session of Parliament to a close. A prorogation may take place separately from an election, but this rarely happens now except for ceremonial purposes.”

Put another way, it would appear that each separately elected Parliament in Australia typically has only a single session — of no more than three years. And the prorogation of this session is usually followed by an election. (And so the Australian House of Representatives web site explains: “sessional orders are temporary rules which, in most cases, expire at the end of a session — usually when the House is dissolved for a general election.”)

At the same time, all this applies only to the Australian federal Parliament. The practice in at least some Australian state legislatures is apparently more like current Canadian practice.

Parliament in the state of South Australia, eg, was recently “prorogued on 17 December 2009 until 1 March 2010” — a quite similar term to that of the Harper minority government’s latest federal prorogation in Canada.

John Ibbitson at the Globe and Mail has also noted that, while a prorogation not followed by a fresh election is rare in the Australian federal parliament: “Our [Canadian] MPs do spend more time at their desks than some of their equivalents elsewhere … compared with our House’s 130 days … the Australian and New Zealand legislatures both sit for less than 100 days a year.”

Or as the Australian House of Representatives web site explains in this context: “The normal sitting pattern for the House extends from February to March, May to June and August to December. During these periods the House usually meets in blocks of two sitting weeks followed by two non-sitting weeks. Normally the House sits from Monday to Thursday each sitting week.”

INDIA

It may not be surprising that the world’s by far largest democracy in India today has an “unusually long and complex” Constitution.. I can’t pretend to have even read the Indian Constitution, cover to cover, let alone fully digested its contents. But as noted in the text Introduction to the Constitution of India : “11.27 A House is prorogued by the President … on the advice of the Council of Ministers.” (The President in India, which is a parliamentary democratic republic, fills the role of the Governor General in Canada and Australia, or the monarch directly in the United Kingdom.)

The details here are spelled out at some length in a chapter on “SUMMONING AND PROROGATION OF BOTH HOUSES OF PARLIAMENT AND DISSOLUTION OF LOK SABHA” in Handbook on the working of Ministry of Parliamentary Affairs. (The Lok Sabha or House of the People in India is analogous to the Canadian House of Commons or the House of Representatives in Australia.)

The mere fact that there is such a thing as a Ministry of Parliamentary Affairs in India may imply somewhat greater routinization or rationalization of prorogation practices than in Canada. In any case a website to help those writing Indian civil service exams elaborates:

“[P]rorogation is just the termination of a session of a House. On completion of a particular session of the Parliament, which may last a specified or pre-determined period, the House is announced to be prorogued by the Speaker/Chairperson as per the directives of the President and the President of India acts as per the advice of the Council of Ministers in this regard. The effect of prorogation is that pending notices, motions and resolutions lapse with the prorogation of the House but the pending Bills remain unaffected.” (In the UK nowadays so-called “public bills” may apparently be unaffected by prorogation as well.)

There is also some indication that Lok Sabhas in India tend to have a larger number of shorter sessions than Parliaments in any of the UK, Canada, or Australia. Note the following half dozen examples culled from recent official announcements posted  on the net (and note that during the period involved there were Indian elections from September 5 to October 3, 1999, April 20 to May 10, 2004, and April 16 to May 13, 2009):

“Lok Sabha which commenced its Fifth Session on the 20th November, 2000, has been prorogued by the Hon’ble President on the 22nd December, 2000 … Lok Sabha which commenced its Twelfth Session on the 17th February, 2003, has been prorogued by the Hon’ble President on the 10th May, 2003 … Lok Sabha which commenced its Thirteenth Session on the 21st July, 2003, has been prorogued by the Hon’ble President on the 26th August, 2003 … Lok Sabha which commenced its Fourteenth Session on the 21st July, 2008, has been prorogued by the Hon’ble President on the 24th December, 2008 … Lok Sabha which commenced its Fifteenth Session on the 12th February, 2009, has been prorogued by the Hon’ble President on the 2nd March, 2009 … Lok Sabha which commenced its Second Session on the 2nd July, 2009, has been prorogued by the Hon’ble President on the 11th August, 2009.”

Some very quick snapshots of the last 40 Canadian Parliaments

As alluded to above, Canada has now had 40 Parliaments since the start of the present confederation in 1867, elected in 40 general elections. (The Parliament elected by the Canadian people in the most recent federal election, this past October 14, 2008, is the 40th Parliament.)

The raw data for tracing the history of sessions and prorogations in all 40 Parliaments is conveniently enough laid out by the federal parliamentary website, on a page called “Duration of Sittings, Recesses and Adjournments of the House of Commons 1867 to Date.” As also noted above, Brian Lilley, Ottawa Bureau Chief for the Toronto radio station Newstalk 1010, has drawn attention to this source — and urged the importance of looking it over, before wildly pronouncing on the present Harper minority government’s most recent prorogation of the Parliament of Canada, on December 30, 2009.

PAINTING BY NUMBERS: PROROGATION AVERAGES SINCE CONFEDERATION AND UNCLE LOUIS IN THE 21ST PARLIAMENT

Two particular comments by Brian Lilley have helped orient my own hasty explorations in “Duration of Sittings, Recesses and Adjournments of the House of Commons 1867 to Date.” The first is: “Historically, as the prime minister’s staff were quick to point out on their conference call last Wednesday [December 30, 2009], this current session that has just been adjourned [ie, more exactly prorogued] is not that short.”

(And thus, presumably, the prime minister’s staff are implying, this latest prorogation does not qualify for censure, at least under Professor Mallory’s pronouncement that the “prorogation… of Parliament before a session has lasted a reasonable time is unusual, and rightly thought to show a lack of respect for parliamentary institutions.”)

Brian Lilley goes on: “The average number of sitting days for a session of Parliament, since confederation, has been 109 while the current session came in at 128. Between September 1949 and August 1950, Louis St. Laurent oversaw the opening of three Parliamentary sessions, proroguing Parliament in December of 1949 and then again the following June … Trudeau … had three sessions shorter than the current one plus the longest session on record, 1980 to 1983.”

I can report from my own inspection of the raw data that all this is true enough. In fact, the 21st Parliament of Canada, elected on  June 27, 1949, with “Uncle Louis” St. Laurent, the successor to the Incredible Canadian William Lyon Mackenzie King as Liberal prime minister, went through seven sessions (and seven prorogations) in somewhat less than four full years, as follows: (1) Start September 15, 1949, Prorogued December 11, 1949; (2) Start February 16, 1950, Prorogued June 30, 1950; (3) Start August 29, 1950, Prorogued January 20, 1951; (4) Start January 30, 1951, Prorogued October 9, 1951; (5) Start October 9, 1951, Prorogued December 29, 1951; (6) Start February 28, 1952,  Prorogued November 20, 1952; (7) Start November 20, 1952; Prorogued May 14, 1953.

Yet, as is often enough true in such matters, just painting the raw numbers like this can obscure at least as much as it reveals, or more. To take a strictly arithmetical point first, note that the fourth session of the 21st Parliament was prorogued on the same day that the fifth session began, while the sixth session was prorogued on the same day that the seventh session began. Ie two of the seven prorogations of the 21st Parliament lasted less than a day.

It could not be said in these cases that Louis St. Laurent’s government was trying to avoid or evade its responsibility or accountability to Parliament for any great length of time  — as can be reasonably enough said of both Stephen Harper’s prorogations of the 40th Parliament to date.

MAJORITY AND MINORITY GOVERNMENTS: ST. LAURENT, PEARSON, AND HARPER COMPARED

A second more crucial substantive point here is alluded to in Mike Brock’s January 8, 2010 blog on the Western Standard web site. The “first and foremost reason” for concern about both Harper prorogations of the 40th Parliament of Canada “is that this is a minority government.”

The first principle of parliamentary democracy is that the government or executive branch of the day is responsible or accountable to the majority in the democratically elected “lower house” of the legislature. It is not hard for what Mr. Brock calls “any rational person” to see that both Mr. Harper’s recent prorogations got him out from under, for a considerable time at least, awkward confrontations with the democratic majority in the Canadian House of Commons.

In 2008, that is to say, Mr. Harper’s Conservatives had won less than half the seats in Parliament with less than 38% of the cross-Canada popular vote. Back in 1949, Louis St. Laurent’s Liberals had won almost three-quarters of the seats in Parliament with just under 50% of the popular vote. (And the CCF ancestors of today’s NDP — widely regarded as “Liberals in a hurry” — had won more than 13% of the popular vote: so the progressive side of the spectrum at large, it could be said, had the support of almost two-thirds of the Canadian people.)

In this context, no matter how often Mr. St. Laurent prorogued Parliament, he always commanded the support of the majority in the elected House of Commons (unless there were some kind of revolt in the Liberal party caucus — which there never was).

Again, it is Mr. Harper’s lack of a majority in the democratically elected House of Commons (to say nothing of his support among the Canadian people at large) that ultimately makes his two prorogations of the 40th Parliament so far so troubling. And the most meaningful historical comparison here would be not Louis St. Laurent in the 21st Parliament, but Lester Pearson’s Liberal minority governments in the 26th and 27th Parliaments, from 1963 to 1968.

Yet again, my own hasty impression is that the raw prorogation numbers in this case are not altogether decisive, by themselves. The 26th Parliament had three sessions in about two and a half years: (1) Start May 16, 1963, Prorogued December 21, 1963; (2) Start February 18, 1964, Prorogued April 3, 1965; (3) Start April 5, 1965, Prorogued June 30, 1965. The 27th Parliament had two sessions in somewhat less than two and a half years: (1) Start January 18, 1966,  Prorogued May 8, 1967; (2) Start May 8, 1967; Dissolved April 23, 1968.

On the surface of these numbers, minority Prime Minister Pearson’s first prorogation of the 26th Parliament, on December 21, 1963, with the House not scheduled to meet again until February 18, 1964 has dates that bear some resemblance to minority Prime Minister Harper’s second prorogation — on December 30, 2009, with the House not scheduled to meet again until March 3, 2010. (Prime Minister St. Laurent’s first prorogation above, intriguingly enough has somewhat similar dates as well.) But was Prime Minister Pearson in December 1963, eg, trying to evade a confrontation with a parliamentary majority over such a thing as an order to produce un-redacted foreign policy documents, as Prime Minister Harper quite arguably was in December 2009?

I can’t of course pretend to any exhaustive overnight study of Canadian federal politics in 1963. I have, however, glanced quickly at J.M. Beck’s useful summary of Canada’s Federal Elections from 1867 to 1968. Lester Pearson first became prime minister on April 22, 1963. He had promised “60 days of decision,” for some reason. And, Professor Beck tells us: “He might have wanted to forget that promise, but the newspapers did not.” Similarly, with the Conservatives still led by John Diefenbaker: “Parliament had got off to a bad start and the drift was steadily downward.” By “June 1964” (already in the second session of the 26th Parliament) a Commonwealth publication was talking about “an addled Parliament” in Canada.

At the same time, two of Pearson’s four prorogations were quickly followed by the start of fresh parliamentary sessions, within a few days or even on the same day. And none remotely approached Stephen Harper’s first prorogation of the 40th Parliament of Canada, on December 4, 2008 — “a most dangerous and unseemly precedent to force the Queen’s representative to dissolve Parliament just so the Conservatives could avoid losing a vote of confidence in the House of Commons.”  (As described by Errol Mendes, professor of constitutional law at the University of Ottawa, who has also urged that: “Apart from the doomed attempts of Charles I to prorogue the British parliament in the 17th century, there was no precedent in any parliamentary democracy anywhere in the world where a democratic parliament was shut down to hide from a vote of confidence” — at least until Stephen Harper in Canada, December 4, 2008.)

Moreover, it was in the midst of the “addled” 26th and 27th Parliaments of Canada that Lester Pearson’s two minority governments of the day ushered in both the modern independent Canadian flag, and the crucial institutions of the modern Canadian welfare state (led by publicly funded pensions and [provincially managed] health care systems). The Pearson governments were supported on both these fronts by what had by this point become the modern New Democratic Party, as a matter of principle and broad philosophical agreement. And the Liberals and New Democrats together had quite clear majorities of both seats in Parliament and the cross-Canada popular vote — in both the elections of  April 8, 1963 and November 8, 1965.

THE OLD TRADITION OF ANNUAL PROROGATION IN CANADA AND THE END OF THE PART-TIME LEGISLATURE IN THE LAST HALF OF THE 20TH CENTURY

Brian Lilley has made a second broad argument about prorogations of the federal Parliament in Canadian political history, that also seems worth some at least slightly deeper investigation.

To quote more exactly: “Canadians, even supposed experts, quoted by media outlets seem unaware of the nature of prorogation in our Parliamentary system. In a story on the possibility that the Harper Conservatives might seek to make it standard for Parliament to prorogue every year, The Canadian Press quotes” some supposed experts “as saying, ‘It’s not easy to see how this can work.’” Yet if these experts “had glimpsed over Canadian history at all” they “would have learned that annual prorogation was at one time the norm and Harper, if he went in that direction, would be returning Canada to its roots.”

As best as I can make out, when you do glimpse over the long-term history of prorogation in Canada, the picture is, say, somewhat more complicated than Mr. Lilley implies (at the very least). Consider, eg, the five sessions of the 1st Parliament (1867–1872), when John A. Macdonald served as Canada’s first Conservative prime minister: (1) Start November 6, 1867,  Prorogued May 22, 1868; (2) Start April 15, 1869; Prorogued June 22, 1869; (3) Start February 15, 1870, Prorogued May 12, 1870; (4) Start February 15, 1871, Prorogued April 14, 1871; (5) Start April 11, 1872, Prorogued June 14, 1872.

Now consider the rather similar pattern displayed by the five sessions of the 8th Parliament (1896–1900), when Wilfrid Laurier served as Canada’s second Liberal prime minister: (1) Start August 19, 1896, Prorogued October 5, 1896; (2) Start March 25, 1897, Prorogued June 29, 1897; (3) Start February 3, 1898, Prorogued June 13, 1898; (4) Start March 16, 1899, Prorogued August 11, 1899; (5) Start February 1, 1900, Prorogued July 18, 1900.

In both cases what you have, after some minor initial complications that flow from particular election dates, are annual sessions of the federal parliament that tend to start in the late winter or early spring and are then prorogued by the summer. Within this pattern of annual sessions Parliament actually sits for considerably less than half the year — from the middle of April to late June in 1869, eg, from the middle of February to the middle of May in 1870, from late March to late June in 1897, and from early February to the middle of June in 1898.

It doesn’t take too much imagination to guess that this version of annual prorogation made a lot of practical sense in a Canadian society still dominated by the rhythms of life on the North American family farm, and in a political system in which Member of Parliament was not a full-time (or a very well-paid) occupation. But are these the kinds of roots to which we want to (or even can?) return today?

Stephen Harper might conceivably say yes: In an article cutely called “Harper goes prorogue” (a not altogether inapt allusion to Sarah Palin in the USA) The Economist in the UK has pointed out that, even today: “Some places, such as Texas, manage well with only a part-time legislature.”   Mr. Harper himself is an MP for a Calgary riding in Alberta, which some would say is just a Canadian miniature variation on Texan themes. On the other hand, time itself started to erode the old agrarian tradition of annual prorogation and the part-time legislature in Canada. And there was apparently a key watershed as long ago as the Second World War [1939–1945].

The 17th and 18th Parliaments (elected July 28, 1930, with a Conservative majority government under R.B. Bennett, and October 14, 1935 with a Liberal majority government that brought back the ubiquitous Prime Minister William Lyon Mackenzie King) both retained strong marks of the old agrarian tradition. But the 19th Parliament, elected March 26, 1940, just as the Second World War was getting seriously under way, pioneered new patterns. Its first session, eg,  started May 16, 1940 and was not prorogued until November 5 of the same year. Then the second session started on November 7, 1940 and was not prorogued until January 21, 1942.

The new patterns prompted by the demands of the Second World War hung on in the second half of the 20th century — or (perhaps more accurately?) they at least broke the mold of the old agrarian tradition of annual prorogation and the part-time legislature. Louis St. Laurent’s 21st Parliament of 1949–1953 is a case in point, as are Lester Pearson’s 26th and 27th minority-government Parliaments of 1963–1968. The 28th Parliament of 1968–1972 — which delivered Pierre Trudeau’s first majority government in Canada’s second century — showed just how much the world had changed since John A. Macdonald’s 1st Parliament of 1867–1872.

Although it was formally prorogued three times, the 28th Parliament sat almost continuously, as new sessions began like clockwork the day after old sessions were prorogued. There were four sessions all told: (1) Start September 12, 1968, Prorogued October 22, 1969; (2) Start October 23, 1969, Prorogued October 7, 1970; (3) Start October 8, 1970, Prorogued February 16, 1972; (4) Start February 17, 1972, Dissolved September 1, 1972. Among many other things, Trudeau became notorious for contemptuously dismissing ordinary Members of Parliament as “nobodies” once they left Parliament Hill. But it seems that he liked to have them around anyway. By his time, in any case (and for better or worse?), the age of the part-time legislature in Canadian federal politics had come to an unmistakable end.

THE MOST RECENT CANADIAN PROROGATION PATTERNS — AND THE PRACTICAL POLITICS OF JEAN CHRÉTIEN

Trudeau once (and perhaps even more than the once I heard him on TV) declared that the crucial talent of his protegé-of-sorts Jean Chrétien lay in his instinct for the darker arts and crafts of politics. And even some Conservatives who have criticized Stephen Harper’s latest December 30, 2009 prorogation of the Parliament of Canada have nonetheless urged that, in a few darker chapters of more recent Canadian political history “Jean Chrétien did it too.”

According to Brian Mulroney’s old chief of staff Norman Spector, e.g.: “One argument you sometimes hear from Conservatives … is that Jean Chrétien was not criticized for proroguing to avoid having to receive Sheila Fraser’s report on the sponsorship scandal. Conservatives also say that many of today’s critics actually respected him for his wiliness; some even cheered Mr. Chrétien’s toughness in shutting down the Somalia inquiry, which was investigating a far more serious matter than Afghan detainees.”

At the same time, Frances Russell has recently urged in the Winnipeg Free Press: “Only one other prime minister in Canadian history was granted prorogation to shut down a parliamentary inquiry … John A. Macdonald in 1873 … Conservatives are claiming a parallel in former prime minister Jean Chrétien’s decision to prorogue Parliament Nov. 13, 2003, saying it also was done to avoid embarrassment from auditor general Sheila Fraser’s report on the sponsorship scandal. There were other factors at play, however. The Liberals had a big majority, not a minority, the investigation was finished, not underway and Chrétien was retiring … [As an over-fussy point of detail here, according to the official “Duration of Sittings, Recesses and Adjournments of the House of Commons,” Parliament was prorogued in this case on November 12, not 13, 2003.]

Norman Spector’s point about “Mr. Chrétien’s toughness in shutting down the Somalia inquiry” in 1997 probably does show that Chrétien could be just as bloody-minded as Harper in his own way. Yet, as the Wikipedia report on the “Somalia Affair” also makes clear: “Despite being controversially cut short by the government … in the months before the 1997 election….  the Somalia Inquiry cited problems in the leadership of the Canadian Forces” which “led to the disbanding of” the “elite Canadian Airborne Regiment.” More to the immediate point at hand, there was no prorogation of Parliament involved in Mr. Chrétien’s action here at all.

Finally, I think it is worth just briefly noting the official details from “Duration of Sittings, Recesses and Adjournments of the House of Commons,”on the prorogations of the two most recent Parliaments of Canada, which have been home to Stephen Harper’s two Conservative minority governments, elected on January 23, 2006 and October 14, 2008. The 39th Parliament (2006–2008) had two sessions: (1) Start April 3, 2006, Prorogued September 14, 2007; (2) Start October 16, 2007, Dissolved September 7, 2008. The 40th Parliament (2008–????) is now between its second and third sessions: (1) Start November 18, 2008, Prorogued December 4, 2008; (2) Start January 26, 2009, Prorogued December 30, 2009; (3) Start March 3, 2010 …

No one complained about Stephen Harper’s first prorogation, of the 39th Parliament of Canada,  on September 14, 2007. (And most of us, no doubt, were not even aware it happened!) His first prorogation of the 40th Parliament, however, is what Professor Errol Mendes has called “a most dangerous and unseemly precedent to force the Queen’s representative to dissolve Parliament just so the Conservatives could avoid losing a vote of confidence in the House of Commons.”

This (it at least seems clear at the moment) internationally unprecedented prorogation of the first session of the 40th Parliament of Canada also took place when the session was a mere 16 calendar days old! It unambiguously fails to pass Professor Mallory’s traditional Canadian domestic test:“The prorogation… of Parliament before a session has lasted a reasonable time is unusual, and rightly thought to show a lack of respect for parliamentary institutions.”

There are some critics of Mr. Harper’s most recent second prorogation of the 40th Parliament, on December 30, 2009, who view it as worse than his December 4, 2008 prorogation. (According to the Edmonton Journal, eg: “while proroguing Parliament made sense in late 2008 given the bizarre circumstances at hand then, it is simply wrong and dishonourable this time.”) Yet, as Frances Russell has pointed out in the Winnipeg Free Press, this most recent prorogation at least has some domestic precedent, in John A. Macdonald’s 1873 prorogation, to thwart the work of a parliamentary committee investigating the Pacific [Railway] Scandal. My own view is that, while Mr. Harper’s December 4, 2008 prorogation actually may have made some practical sense, when all is said and done, it in principle sets a much more “dangerous and unseemly precedent” for Canadian parliamentary democracy. And the most recent December 30, 2009 prorogation would probably not look as bad as it does, if it had not been preceded by such an even internationally appalling use of this ancient “prerogative power of the Crown” just over a year before.

What kind of prorogation garden path is Stephen Harper trying to lead Canada down?

This no doubt too long quick and dirty report on more than anyone ever wanted to know about the Canadian and related experience with the prorogation of Parliament, etc, etc has made at least one thing very clear to me. It is certainly not Stephen Harper’s use of the ancient power of proroguing Parliament itself — on December 4, 2008 and December 30, 2009 — that has troubled so many Canadians (even if they are mostly Canadians who would never have voted for Mr. Harper’s Conservative Party of Canada in any case).

Even a mere glimpse at Canadian political history since the present confederation began in 1867, that is to say, does show that prorogation has been used in quite routine ways by governments of both major political parties more than 100 times. The point in all this is not that there is anything wrong with executive branches of government — and even minority governments — proroguing Parliaments from time to time. Mr. Harper himself prorogued the 39th Parliament in a quite routine way, and no one complained or criticized him.

MR. HARPER’S (ACCIDENTAL BUT RADICAL?) EXPANSION OF VARIOUS DEMOCRATIC DEFICITS IN CANADIAN FEDERAL POLITICS TODAY

What is troubling about Mr. Harper’s most recent prorogations of the Parliament of Canada, on December 4, 2008 and December 30, 2009, is the more substantive reasons behind them. The ancient power of prorogation, you might say, is a sharp sword in the modern prime ministerial armoury. Prudence, the norms of good government (or even “Peace, Order, and good Government” as Canada’s Constitution Act 1867 says) and a special concern for the “democracy” part of parliamentary democracy in the modern era all suggest that such potentially quite dangerous weapons must be used with discrimination and common sense.

Both Mr. Harper’s two most recent prorogations of Parliament, however, have involved a minority government trying to avoid or evade its responsibility or accountability to the democratically elected majority in Parliament. Or, the first principle of parliamentary democracy is that the government or executive branch of the day is responsible or accountable to the majority in the democratically elected “lower house” of the legislature. Whatever he himself (or his spokespersons) may say about the motivations involved, it is easy enough for anyone paying serious attention to see that both Mr. Harper’s recent prorogations have got him out from under, for a considerable time at least, awkward confrontations with the democratic majority in the Canadian House of Commons.

Put another way again, what Prime Minister Harper has done in his prorogations of December 4, 2008 and December 30, 2009 is, in effect, attack the fundamental underlying principles of our democratic system of government itself. I would hasten to add myself that I do not think he has, so to speak, done this deliberately or systematically. It has all been a kind of accident — albeit a kind of accident to which Mr. Harper seems increasingly and increasingly disturbingly prone. He apparently has a talent for inadvertently steering into wildly troubled waters — and then not shrinking from bending the rules of the system outrageously to bail himself out.

Similarly, it would be wrong to exaggerate the ultimate dangers to Canadian parliamentary democracy that Stephen Harper’s accidentally disturbing  prorogations of December 4, 2008 and December 30, 2009 pose. It is true enough that prorogation itself can only postpone and never cancel a minority government’s confrontation with a democratically elected parliamentary majority. If the united opposition majority that wanted to vote no confidence in Mr. Harper during the days just before December 4, 2008 had managed to stay united, it still could have voted him out of office after January 26, 2009. The more recent postponed quest for un-redacted documents on torture in Afghanistan can be taken up again, after March 3, 2010.

It is true enough as well, as stressed in John Ibbitson’s recent Globe and Mail piece “Few countries can claim such a pathetic Parliament,” that there has been a longstanding international debate on lamentable modern tendencies towards executive domination of the legislature in Westminster parliamentary democracies — and that Canada has long had an especially bad case of this disease. Or as another Globe and Mail columnist, Rick Salutin, has still more recently urged, “most Canadians today” probably “couldn’t tell you if Parliament is in session.” And, even if “most Canadians” nonetheless “want it there” because, as bad as it is, “Parliament” nonetheless “proves democracy exists … most people” also “sense it’s a pile of political pretense that is only minimally democratic, and that elections are what” mere parliamentary democracies “give us instead of a real democracy in which we’d have a genuine say.”

During my hasty adventurers in Canadian prorogation history here, I have also been drawn back to two now quite ancient quotations cited by the near-great Canadian historian Harold Innis, in two essays of the late 1940s, at the end of the long reign of the ubiquitous Liberal Prime Minister William Lyon Mackenzie King. In the first of these Innis cites some remarks on the early politics of the present confederation, by the visiting British academic and public intellectual G.C. Broderick. And, as it happens, these remarks were in fact occasioned by Broderick’s observations on John A. Macdonald’s historic prorogation of 1873 (though Innis does not note this himself, in his still quite compelling essay on “Great Britain, the United States and Canada”).

Broderick had been invited to Ottawa, in the midst of a wider North American trip, by Governor General Lord Dufferin. And he subsequently reported, to all or any who might be interested: “During my stay at Ottawa, it was impossible not to be struck by the malicious credulity of Canadian party-spirit, and the extreme lengths to which party-warfare is carried at the instigation of a most virulent and unscrupulous Press. I was constantly assured that Sir J. Macdonald had advised the Prorogation for the sole purpose of gaining time to buy off opponents, and was deliberately spinning out the debate while his agents were employing the basest means of winning back defaulters. On the other hand, I was gravely informed, with particulars of names and circumstances, that persons connected with the Northern Pacific Railway Company were paying down hard cash for promises to vote against the Government, in the hope of frustrating the rival scheme of a Canadian Pacific Railway.”

All this of course is about something that happened more than 135 years ago. But it is both intriguing and in many ways rather alarming to recognize here certain threads in the fabric of Canadian political culture that are still all too prominent today. In another late 1940s essay, on “The Church in Canada,” Harold Innis wrote: “The late J.W. Dafoe [1866–1944, and editor of what is now the Winnipeg Free Press — at a time when it was ‘among the most important newspapers in Canada’] is said to have stated that all great public questions in Canada were settled on the basis of personal prejudices, and that political leaders on the whole have lacked the virtue of magnanimity. Lord Acton’s comment that ‘no public character has ever stood the revelation of private utterances and correspondence’ has particular significance for the fundamental corruption of Canadian public life.”

There is little doubt as well, I would agree myself, that this historic neo-Machiavellian tradition in Canadian federal political culture has continued to play an important enough role in the growth and survival of the Liberal Party of Canada — which at least until recently could be called “the natural governing party of Canada” without provoking too much nervous laughter. It no doubt was part of Pierre Trudeau’s broader appeal (to those who found him appealing of course) that he was not a typical Liberal or even just Canadian politician, and stood somewhat outside the neo-Machiavellian tradition. At the same time, he ultimately came to survive as long as he did in Ottawa by transforming himself (in the words of the wit from Winnipeg Larry Zolf) “from philosopher king to Mackenzie King.” Moreover, I have little trouble myself accepting the view that, in some important ways, the old neo-Machiavellian tradition was reinvigorated with some particular relish and tough-guy panache by Trudeau’s ultimate successor, Jean Chrétien.

I similarly have little trouble accepting the view that what Stephen Harper has finally wound up doing during his, in a number of respects, surprising past four years as minority Prime Minister of Canada is embracing the old Liberal neo-Machiavellian tradition, sharpened to such a fine point by Mackenzie King and then Louis St. Laurent, etc, etc, and adapting it to his own brand of Conservative purposes. I would even agree that it is at least somewhat instructive to see Mr. Harper’s most recent prorogations of the Parliament of Canada, on December 4, 2008 and December 30, 2009, in the light of this old Liberal tradition.

There are, however, two crucial differences that, certainly to a person such as myself, make all the difference in the world. In the first place I think Frances Russell of today’s Winnipeg Free Press is right. The only serious precedent in Canadian political history since 1867 for Mr. Harper’s most recent  December 30, 2009 prorogation is John A. Macdonald’s “Pacific Scandal” parliamentary shutdown  (that among other things prompted the remarks of G.C. Broderick quoted by Harold Innis some 75 years later). And John A. Macdonald of course was a Conservative not a Liberal. (Some may correctly enough in some ways quibble “Liberal Conservative,” but that is a red herring at best in the present context.) Similarly, I think Errol Mendes of the University of Ottawa is essentially right about Mr. Harper’s first prorogation of the 40th Parliament of Canada, on December 4, 2008. There is, it seems clear enough at the moment, no precedent for proroguing a serious free and democratic parliament to evade a vote of non-confidence anywhere else in the world. And, whatever else might be said about the practical domestic circumstances of the day, this has to go down as a matter of some considerable shame for Canada in the international history of parliamentary democracy.

Finally, it was (perhaps somewhat too hyperbolically) attacking the, as it were, alleged ultimate negative embodiment of the old neo-Machiavellian leadership tradition of the Liberal Party of Canada in the ill-fated “sponsorship scandal” or “Adscam,” with such self-righteous virulence and abrasive moral superiority, that at last won the Harper Conservatives at least a minority government in the federal election of January 23, 2006. As has been widely remarked, in all parts of the country today, for Mr. Harper to then suddenly turn around and start employing the same tactics of the neo-Machiavellian tradition, even more aggressively and darkly than the old Liberal masters, betrays  more abject hypocrisy and “fundamental corruption” than even the most ancient apathetic and disengaged version of Canadian political culture can logically stand.

WHAT IS TO BE DONE?

“What is to be done” is always the decisive practical political question. And to answer it will always betray your own values and underlying philosophical convictions.

If the most recent opinion polls have shown some surprising (if also quite encouraging) more or less immediate popular opposition to the mundane mechanics of Mr. Harper’s second prorogation of the 40th Parliament of Canada, on December 30, 2009, they still suggest that just how far this opposition will go remains unclear. As the latest EKOS poll analysis explains, eg, “the last few days of polling saw the CPC fortunes rebounding somewhat, suggesting that it may be difficult for the opposition to sustain public attention on the issue of prorogation.”

With all the appropriate caveats in such circumstances, my quick and dirty look at Canadian prorogation history here leads me into two different kinds of answers to “what is to be done.”

First, I think it is very reasonable to wonder privately, and to ask in public: “If the December 4, 2008 and December 30, 2009 prorogations are examples of what Stephen Harper does when all he has is a minority government, what kind of (even albeit accidental) attack might he be prepared to launch on the fundamental underlying principles of our democratic system itself if he had a majority government?” And if you do think that Mr. Harper’s two most recent prorogation decisions have done some serious enough damage to our parliamentary democracy in Canada, the first thing to do is make sure he does not finally get a majority of seats in Parliament in the next federal election (which is unfortunately a lot easier in our system today than winning a majority of the cross-Canada popular vote), whenever the next election comes.

Some will ask can’t we do more than this? Here I am reminded of another Harold Innis quotation from the late 1940s, at the end of the age of Canada’s longest-lived Liberal prime minister, William Lyon Mackenzie King. “As evidence of the futility of political discussion in Canada,” Innis wrote in his essay on Great Britain, the United States, and Canada, “there were Liberals who deplored the activities of the federal administration in no uncertain terms but always concluded with what was to them an unanswerable argument — ‘What is the alternative?’.”

If you substitute “Conservatives” for “Liberals” in this Innis quotation, some would say, you have a tidy summary of the continuing futility of political discussion in Canada today. In fact I think there is an at least theoretical alternative to yet another Harper Conservative minority government in the 41st Canadian federal election, whenever it happens. It is some sort of informal Liberal-New Democrat coalition government — unsupported by the Bloc Quebecois, and growing out of the kind of Liberal-NDP “cease-fire” agreement proposed by the British Columbia New Democrat Michael Byers some months ago now. Unfortunately, I also agree with those who urge that in the current real world of Canadian federal politics, this remains, for the moment at any rate, an impossible dream. (And certainly as matters stand a Liberal majority government seems even more unlikely.)

My second kind of answer to “what is to be done” here is more narrowly focussed on the future of the prorogation tactic in Canada. The most optimistic way of looking at the whole issue, it finally seems to me, is that Stephen Harper, whatever else, just may have done the future of Canadian democracy an accidental favour, so to speak, in spite of himself .

This coming Saturday, January 23, 2010, eg, demonstrations against Mr. Harper’s latest prorogation of the Parliament of Canada are planned for as many as 50 centres across the country — from Antigonish, NS to Yellowknife, NWT.  The crowds these demonstrations attract will be one measure of just how far popular opposition to the assault on Canadian parliamentary democracy will go, at least in the near future.

In 2010 I will become an official senior Canadian citizen. And I have seen too many similar moments of  democratic political hope quickly fade, for one practical reason or another, to entertain any too great expectations. But if Stephen Harper has now got enough people of Canada angry enough by his December 4, 2008 and December 30, 2009 parliamentary prorogations, he actually may have made a quite positive contribution to Canadian democracy.

According to John Ivison at the National Post: “The Conservatives think an election is probably at least a year away and are trusting in the public’s political amnesia … They believe the only question that will matter by then is: Who do you trust to lead the country through a period of fiscal restraint? If they can contain themselves from doing anything too rash between now and then, prorogation will fade into political antiquity.”

If this is what does in fact happen — and the Conservatives wind up paying no widely perceived serious political price for the 2008 and 2009 prorogations — then these quite wrongheaded legislative suspensions will go down in history as setting some very unfortunate precedents for the future of Canadian parliamentary democracy.

Again, I agree that it would be wrong to exaggerate just how decisive and fundamentally damaging these precedents would be. Whatever happens, we will of course still have elections. It is amusing and apt enough, in a way, when the Queen’s University professor emeritus Ned Franks says “We should call him King Stephen the First of Canada, for that, in effect, is the way he is behaving.” But a serious political dictatorship is not just around the corner in Canada today.

At the same time, it is equally wrong, it certainly seems to me, to minimize just how troubling and dangerous the precedents set by Stephen Harper’s two latest prorogations are. And if there is enough popular opposition to these precedents — and it somehow manages to carry through to the next Canadian federal election —  then future politicians in Canada will be much less likely to try these same attacks on the fundamental underlying principles of our democratic system again, accidentally or otherwise.

So, if you do agree that, whatever else might be said in their favour or by way of excuse, the 2008 and 2009 prorogations of the Parliament of Canada have in fact been quite dangerous for the future of Canadian parliamentary democracy, you can and should, just to start with right now, attend the Saturday, January 23 “No Prorogue” demonstration at whatever of the now scheduled centres is closest to you. That is what I am going to do myself. Like all such popular political protests, this kind of action has strict limitations. But it is a start on trying to do something better for Canadian democracy — and letting all our political and other leaders know that we especially expect them to keep faith with our domestic expressions of the free and democratic values that they are also asking us to fight for in far away corners of the world.

As the Saskatoon Star Phoenix said very nicely on January 11, 2010: “It is one thing to achieve one’s aims as prime minister by manipulating the levers of office, abusing the reputation of underlings, using party funds to unfairly denigrate one’s opponents, removing from office watchdogs and bureaucrats who point out weaknesses, ducking responsibility by proroguing Parliament and stretching the limits of one’s power … It’s quite another, however, to achieve laudable ends by actually leading the nation to those goals. Mr. Harper, although incredibly successful as a politician and tactician, has failed to lead Canada on almost every file.”

We increasingly do need politicians who can lead Canada (and not just their own careers) in the increasingly troubled 21st century. It is no doubt not easy at all. But if we the Canadian people don’t start asking for them, it does seem a near certainty that they will never come.

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