Rumour has it that the Conservative Government of Stephen Harper is considering calling the Governor General in to prorogue Parliament as a way of avoiding the possible loss of a confidence vote in the House. All Canadians should be concerned at the prospect, since to do so undermines the very foundation of our Parliamentary system of government.
At this moment, it appears that the Liberals are poised to introduce a confidence motion on December 8, 2008, the next opposition day in Parliament. If a confidence motion is lost, the government is obliged to resign, as maintenance of the confidence of the House is a prerequisite to power. At that point, it would be up to the Governor General to determine whether the opportunity to form a government should be provided to anyone else or whether another election should be held. Given that Canadians voted a scant six weeks ago, the latter ought to be avoided if it can be. The reports of a possible coalition government would appear to provide the Governor General with an option to dissolution, which most Canadians would regard as the option of last resort.
As the Parliament of Canada website tells us, prorogation of Parliament ends the parliamentary session and the House goes into recess until the next Parliament is summoned to meet. Prorogation is effected by the Governor General on the advice of the prime minister in a special ceremony in the Senate Chamber or by the publication of a proclamation of the Governor General in the Canada Gazette. What is significant about prorogation is that no vote is required.
It was just such an event that occurred in 1685 and led to what is now referred to as the Glorious Revolution. James II prorogued Parliament because it refused to grant him money to maintain his army and refused to repeal the Test Acts. James II continued to rule by royal prerogative anyway. Ultimately, as a result, William of Orange was invited to invade England and James II fled the country. William and Mary were then invited to take the throne on the condition that they would accept two fundamental principles of Parliamentary government: the abolition of the suspension power, that is the purported power of the monarch to declare the law rather than for Parliament to enact it, and the requirement that money needed by the Crown can only be secured with the prior consent of the people’s representatives in Parliament. These principles were enshrined in the Bill of Rights, 1688-89 and underpin the development of the legislative process and the presentation to Parliament by executive government of its budget in order to secure funding for its programs.
The enactment of the ancient Bill of Rights marks the end of the struggle between the Crown and Parliament, but it marks the beginning of the struggle between Parliament and the executive arm of government. Eugene Forsey made this prescient observation more than 50 years ago, when he said:
The danger of royal absolutism is past; but the danger of Cabinet absolutism, even of Prime Ministerial absolutism, is present and growing.
It is not so surprising that James II thought that he could dispense with Parliament; he was after all the King of England at a time when that had more significance than now. It is much more difficult to understand how Stephen Harper might think he could get away with proroguing Parliament to avoid a confidence vote, since he was just elected to serve as a representative of the people. More important than Stephen Harper, though, are the long-term consequences for the Parliamentary system of government in Canada. If he can do this, can he also declare the laws, since there won’t be a Parliament to enact them, or approve his own expenditures because Parliament won’t be able to do that either? And if Prime Minister Harper can do this then so can
any other prime minister.
The office of the Governor General exists to police these possible excesses by prime ministers. The Financial Administration Act requires that the Governor General must approve executive spending in the absence of Parliament through the use of what are called special warrants. These are available when a “payment is urgently required for the public good” and “there is no appropriation” from which the payment may be made. While literalists may argue otherwise, a payment is only “urgent” when it could not otherwise have been predicted. The fact that an appropriation does not exist because the prime minister sent Members of Parliament home in a fit of pique isn’t good enough. But it is only the Governor General who can say no to the Prime Minister’s request, thus forcing him to recall Parliament and obtain its approval.
Similarly, in a situation where the Prime Minister requests a prorogation, it is the Governor General who must either participate in the ceremony or sign the proclamation that is published. It is, again, only the Governor General who can say no to the Prime Minister’s request, thus forcing him to demonstrate to all Canadians that he retains the confidence of the House, as he must if he is to retain his office. In this sense, Frank McKinnon so aptly remarked in his book The Crown in Canada, the Governor General acts as a “constitutional fire extinguisher”.
It is important that the Governor General ensure that Stephen Harper is not able to use prorogation as a means to avoid a confidence vote in the House. The Governor General’s intervention is justified, not because of any partisan concerns, but to put out the constitutional fire. The alternative is to substitute despotism for democracy.
Merrilee Rasmussen Q.C. is a founding partner of Rasmussen, Rasmussen & Charowsky. She was the Legislative Counsel to the Saskatchewan Legislature from 1976 to 1988. Her Master's thesis on the abuse of special warrants most notably by the government of Premier Grant Devine was awarded the Governor General's Medal at the University of Regina in 1995.