Prorogation as constitutional harm.

• Author: MacDonald, Nicholas A.
• Position: Letters

Sir:

In your spring issue, Nicholas MacDonald and James Bowden offer a novel reply to the numerous constitutional concerns raised by constitutional scholars, political scientists, and parliamentarians regarding the 2008 prorogation of Parliament. They are to be commended for providing a clear argument, calling attention to the troubling case of the 1873 prorogation, and pointing out the distinctions between asking for prorogation and asking for dissolution. Unfortunately, their argument is deficient in several respects.

The authors rely upon the 1873 prorogation of Parliament to suggest the Governor General has no discretion in matters of prorogation. They argue that in 2008, Michaelle Jean had to follow the advice of Prime Minister Stephen Harper to prorogue Parliament. Yet, as the authors themselves point out, in the 1873 example Prime Minister Sir John A Macdonald requested a prorogation to avoid the release of a committee's report, not to avoid a scheduled confidence vote. Whatever the consequences of releasing the report might have been for the Macdonald government in 1873, the situation in 2008 was quite different. The question before Mine Jean was whether she should prorogue Parliament and thus enable Harper to avoid a duly scheduled confidence vote that he was sure to lose. By agreeing to prorogue, she upended core principles of responsible government, and the legitimacy of Canada's democracy became contested.

While any use of prorogation to avoid responsibility in the House is detestable, the case in 2008 went far beyond what happened in 1873. The authors' argument that the 1873 example shows the Governor General had no discretion in 2008 is fundamentally flawed. Although in normal circumstances the Governor General acts on the advice of the Prime Minister, MacDonald and Bowden fail to properly consider the Governor General's overriding mandate to uphold the basic principle that the government must retain the confidence of the House.

In addition to an over-reliance on the 1873 example, the authors rely upon a largely discredited view of the Crown as little more than a rubber stamp for Cabinet. While they allow that this matter is subject to some debate, they manage to totally ignore the authoritative and extensive work by the late Senator Eugene Forsey in regard to the reserve powers of the monarch and her representatives. The arguments made in Forsey's landmark 1943 book on dissolution are updated in his comprehensive hundred-page Introduction to the 1990 volume Evatt and Forsey on the Reserve Powers. Forsey's position is now widely accepted among serious scholars throughout the Commonwealth. In short: in exceptional circumstances, when the primacy of Parliament is threatened, the Crown has the discretion to refuse the advice of her ministers.

Perhaps the authors' failure in this regard is connected to the widespread...