PROC Committee Report

Supplementary opinion of the New Democratic Party of Canada

Tweedle-dee and Tweedle-dum: How the Liberals and Conservatives conspire to protect the prerogative from democratic control and accountability

Justin Trudeau may not be the first Prime Minister to have abused the power of prorogation for political purposes, but there was some hope at the outset of this study that the committee might propose meaningful reforms that could reasonably be expected to curb, if not completely eliminate, that kind of political abuse.

Two paths were open to the committee, were it more interested in fixing this persistent problem than merely engaging in the opportunity for political theatre that this particular prorogation presented. The committee could have proposed legislative amendments to constrain the Prime Minister’s powers to recommend prorogation or it could have proposed changes to the Standing Orders that would introduce more accountability for the Prime Minister by strengthening the requirements of Standing Order 32(7).

Unfortunately, the committee chose neither option. While the Prime Minister is guilty of having undermined the evidentiary base of the committee’s study by failing to appear, he alone cannot be blamed for the committee’s failure to recommend a path forward that would make it more difficult for future Prime Ministers to engage in the same underhanded tactics.

The support of either the Liberals or Conservatives should have been enough to secure such a recommendation, but there is no such recommendation in the report. The absence speaks volumes.

While Liberals and Conservatives are happy to throw mud at each other over the decisions made by the other party’s Prime Ministers, they are united in protecting this unbridled power of the Prime Minister – already abused on several occasions in this century alone – and shielding Prime Ministers from any meaningful accountability for its use or abuse. New Democrats believe Canadians would be better served by Parliament treating the disease, rather than the symptoms.

Canada often looks to the United Kingdom for guidance on matters of parliamentary procedure. There, the special prerogatives of the Prime Minister concerning the prorogation and dissolution of Parliament do have meaningful constraints. Both Parliament and the courts in the United Kingdom have weighed in on, and can influence, the use of those prerogatives

Legislative fix

New Democrats disagree with recommendation (a), which counsel against limits on the Prime Minister’s powers to prorogue. To the contrary, we believe that the elected House of Commons should have to authorize a prorogation before the Prime Minister proffers advice to the Governor General to that effect, preferably by a two-thirds majority. A similar requirement should be put in place to authorize dissolution of a parliament before the fixed-election date set out in legislation.

These reforms would add a new, material measure of democracy to Canada’s system of government. The only Canadians with anything to fear from such reforms are those who imagine they may one day be in a position to abuse these powers to advance their own interest, and the rest of us should not heed their advice.

Procedural fix

The legislative solution above is challenging to implement in light of the contention of some that a constitutional amendment would be required to impose limits of that nature on the special prerogatives of the Prime Minister. Procedural measures could be taken in the meantime to mitigate the abuses of prorogation. It was open to the committee, for example, to propose enhancements to the procedure in Standing Order 32(7) so as to at least compel the appearance of the Prime Minister as a witness in any future study of the reasons behind a prorogation.

New Democrats believe that the committee ought to have pushed for concrete measures to allow Parliament to more effectively hold Prime Ministers to account for decisions around prorogation. We submit the following recommendation to that effect:

Recommendation

That Standing Order 32(7) be replaced with the following:

(7) Not later than 20 sitting days after the beginning of the second or subsequent session of a Parliament, the Prime Minister shall lay upon the table a document outlining the reasons for the latest prorogation.  This document shall be deemed referred to the Standing Committee on Procedure and House Affairs immediately after it is presented in the House.

(7.1) The Standing Committee on Procedure and House Affairs shall study the document and report back to the House of Commons no more than 30 sitting days after the document is referred to the committee.

(7.2) Any member of the Standing Committee on Procedure and House Affairs may, within 20 sitting days of the Committee commencing a study pursuant to Standing Order 32(7), request that the Prime Minister appear as a witness on the study within 10 sittings days of the request, by depositing the request with the Clerk of the Standing Committee on Procedure and House Affairs. Such a request shall be deemed to have been adopted by the Standing Committee on Procedure and House Affairs, shall be presented to the House at the next earliest opportunity as a report of that Committee, and shall be deemed concurred in as soon as it is presented to the House.

Reasons for the recommendation

This change to the Standing Orders would accomplish several things. First, it would make the Prime Minister’s personal accountability for prorogation decisions clear by requiring that Prime Ministers themselves table the document outlining their reasons for the decision.

Second, it would ensure that the Procedure and House Affairs Committee both study the reasons for prorogation and report back to the House. On many occasions in the course of this study, government members of the committee made statements to the effect that they had done a nice thing by agreeing to a study on the government’s reasons for prorogation. Their view, it seems, was that opposition members should be happy we had a study at all, never mind getting to question the Prime Minister. The fact of this minority parliament is that they did not have much choice. The implications for a majority parliament are clear enough: studying the reasons for prorogation under Standing Order 32(7) is, in their view, a privilege that can be withheld. Even in the context of this minority parliament, it was uncertain for too long whether the committee would succeed in filing a report on the matter. Assurances that there will be a study and a report are therefore necessary.

Third, it would set a timeline for the study. The prolonged filibuster of this study by Liberal members is the best argument one could make for imposing a timeline on the study.

Fourth, it would address the main sticking point in the study that led to the filibuster: the question of whether the Prime Minister has an obligation to appear. By allowing any member of the committee to call the Prime Minister as a witness and giving the call, at the outset, the force of an order of the House, this proposal would make it clear that the Prime Minister has a duty to appear, unless the whole committee decides otherwise. If such a rule had already been in place, the filibuster would not have lasted as long as it did and the committee could have turned its attention to other pressing matters, like consideration of Bill C-19 and its proposals for how to conduct a pandemic election.

It is disappointing that the committee could not find its way to making a recommendation like the one above. Its advice amounts to simply waiting until the power of prorogation is abused again and seeing what political points can be scored in the moment. For all the time spent on this study, Canadians deserve better advice than that.

New Democrats nevertheless endorse the findings of this report, as well as those recommendations that do not seek to protect the Prime Minister’s unfettered right to use and abuse the special prerogatives of the office.