Limiting the government's power to prorogue parliament.

• Author: Tremblay, Guy
• Position: Viewpoint essay

Many people feel that Prime Minister Harper's second minority government abused its power to prorogue Parliament in order to shut down embarrassing activities. The prorogation of December 4, 2008 circumvented a vote of censure scheduled for the following week that might have led to a coalition government taking power. The prorogation of December 30, 2009 dissolved the parliamentary committees. One of these committees was hounding the government about the fate of Afghans taken prisoner by the Canadian military. After the second prorogation, the opposition parties in the Commons suggested limiting the government's powers of prorogation to prevent future abuses. This article explores how the power to prorogue Parliament could be circumscribed--it would still exist, but with limits on its frequency and the circumstances surrounding its use.

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People were not convinced by the reasons given for the latest prorogation, such as the opening of the Vancouver 2010 Olympic Games in the latter half of February. Suspending Parliament for more than two months attracted widespread criticism, and the government's popularity ratings suffered as a result. One means of limiting the power to prorogue would be to pass a resolution in the House of Commons stipulating the circumstances in which prorogation would be allowed and those in which it would be prohibited. This approach might encourage the government to act with caution in the future, but it would not serve as a constraint since a resolution by a House of Parliament has no legal authority; it is simply the expression of a desire or an opinion. In addition, the House of Commons has no authority to replace the Prime Minister as official advisor to the Queen's representative.

A standing order would also be no more than an expression of the House of Commons' desire to limit the power of prorogation and would have no authority. Firstly, the House is authorized to govern its own internal operations, but it cannot then use that power to subjugate the external (royal) authority that gives it the right to sit. Secondly, a standing order cannot oppose a law, and the power of prorogation in Canada appears to have a legislative, and indeed constitutional, basis.

A Strict or Flexible Constitutional Amendment?

Section 38 of the Constitution Act, 1867, reads:

38. The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon and call together the House of...