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Artillery Row

Prorogation Canadian-style

Canadians have more faith in the democratic process than their British cousins

The word “prorogation” elbowed its way into the mainstream political vocabulary for the first time last year, with Boris Johnson’s flamboyant announcement in August of side-lining of Parliament, and the Supreme Court’s equally trenchant side-lining of Boris a month later, on 24 September. But that is not the end of it. On Tuesday last week the Canadian Parliament was abruptly prorogued in not dissimilar circumstances. The Canadian political class dealt with it rather differently from ours, however: some might say, a great deal better.

There have been no screaming denunciations of an authoritarian bid to subvert democracy

Justin Trudeau’s minority Liberal government, run by the party that gained most seats in last year’s election despite polling rather fewer votes than the Conservatives, has been in trouble for some little time. Finance Minister Bill Morneau has resigned, reportedly after hard words with Trudeau, to be supplanted by a Trudeau loyalist of questionable financial acumen. Very awkward queries are being raised, including by Trudeau’s own Liberals, about the administration’s award of a major contract to a body known as the WE Charity, which is too close for comfort to both Trudeau and Morneau and has paid both of them substantial sums in travel expenses and speaking fees. As if this was not enough, last December the Ottawa Parliament voted against the government to create a special committee on Sino-Canadian relations; this committee has been asking some equally searching questions about what many regarded as an unhealthy cosying-up to China and Chinese companies such as Huawei. And, of course, in the background there are always simmering questions about Canada’s handling of Covid-19.

On Tuesday, on Trudeau’s advice, the Governor-General prorogued Parliament for five weeks. The abstract political argument that followed was curiously similar to what happened here. Trudeau spoke in honeyed terms about housekeeping and the need to abandon unfinished business and “reboot” Parliament to help it deal with urgent things like Covid-19. The opposition retorted that a one-day prorogation would have been enough for that and hinted, with some reason, at a felt need to take the heat off the government by shifting allegations against it out of the House of Commons and into op-eds and social media where they might more easily be forgotten. 

There, however, the similarity ends. In contrast to what happened here, the whole affair is intriguingly low-key. There have been no screaming denunciations of an authoritarian, not-quite-fascist, bid to subvert democracy, such as appeared in the leftish press in Britain last September; nor yet, it seems, has Canada seen any mass demonstrations worth the name like those that appeared in the UK under such banners as “Resist the Parliament Shutdown”. Indeed, it is very largely business as usual. Everyone seems resigned to Parliament being out; no-one suggests that the prorogation could be somehow invalid; comment is largely limited to referring to politicians’ hypocrisy with the occasional mild suggestion that there must be a better way of doing things. And one thing is definitely lacking. Aside from the odd passing reference by an earnest law professor to the result of the UK Supreme Court’s decision last year, there is no talk whatever of bringing the lawyers in.

There are reasons for this. One is that the Canadian context is not quite the same as that in the UK. People in glass houses need to think twice before throwing stones; and there is a good deal of glazing in the opposition Conservatives’ mansion. Canadians have not been allowed to forget that a previous Tory prime minister, Stephen Harper, himself used substantial tactical prorogations three times: twice to wrongfoot possible confidence motions (in 2007 and 2008), and once in 2010 to deflect bad publicity from an inquiry into Canadian treatment of prisoners in Afghanistan. 

Another, no doubt, is that the leading media are predominantly on the liberal side, with an instinctive dislike for the Conservatives but no axe to grind against Trudeau. But even the conservative press and social media seem to have limited itself to regarding this less as a constitutional outrage, and more as an opportunity for the Conservatives to score a serious political hit once Parliament reconvenes by portraying Trudeau as incompetent and running scared. 

But the real reason, one suspects, is that Canadian attitudes to the constitution and to democracy seem to be subtly different from ours. They might even be – suggest this quietly – rather healthier. 

The muted reaction indicates a heartening faith in the democratic political process

For one thing, the affair demonstrates a sound respect for playing by the established rules. True, where a party uses those rules creatively to further its ends and avoid political embarrassment it becomes fair game for some pretty withering political criticism. But rules are rules, and whether we like it or not, prorogations for substantial periods for reasons other than Parliamentary housekeeping are both permissible and indeed already part of the Canadian political landscape. Except perhaps for a few of the professoriate and the metropolitan elite on either coast, the general view seems to be that a party cannot be attacked as somehow acting unconstitutionally or dictatorially merely because it takes advantage of them. An analogy with UK political history might be the invocation of a threat to use the prerogative to flood the House of Lords with Liberal peers in order to pass Lloyd George’s budget in 1910; an invocation of arcane rules by an elected government to get its way, and as such regarded as fairly unexceptionable. 

For another, the muted reaction indicates a heartening faith in the democratic political process and a willingness to allow matters to be played out by interaction between elected representatives. The belief is, it appears, that the best reaction to misbehaviour or misuse of the rules is to point it out to the electorate, which can then duly punish it at the ballot-box if it disapproves.

But perhaps the most interesting sign is the one briefly touched on above: the apparent lack of any appetite to short-circuit the political process by going to law. Even among those Canadian writers who do make reference to the UK Supreme Court decision voiding the Westminster prorogation, there is a good deal of scepticism as to whether the reasoning in it would pass muster in a Canadian court. This development is most encouraging, because it seems to show an entirely sound appreciation of the proper spheres of judges and politicians in the political context. 

The former is, or should be, concerned with the limits of power and preventing it being exercised, even by elected politicians, for purposes clearly contrary to law so as to infringe some specific right in a specific complainant. But this is a fairly limited function. Matters relating not so much to rights as to more general political or constitutional virtue – classic examples include the effective scrutiny of what government does, and calling out the exercise of power for controversial purposes we might disapprove of – are exactly what we elect politicians to deal with. Furthermore, these latter areas exactly those where we tend to find party political disagreement, and hence where there are dangers in courts intervening if they wish to preserve at least a patina of impartiality… 

Such matters are precisely the problem democrats see in the interventionist stance of the UK Supreme Court in the matter of Boris Johnson. This is admittedly just one difficulty out of many: on a general plane it is not difficult to criticise with hindsight its conscious choice to dive headlong into deep political matters when (as even leftish commentators admitted) no precedent demanded that it do so, and furthermore in a case where there was little time for sober deliberation. But the real sticking-points are two others. One is the court’s calculated choice not only to interfere with the prerogative of prorogation but to do so in an expansive way, effectively putting the burden on the government to give full reasons satisfactory to the court for its exercise. The other was the court’s arrogation to itself of the function of arbiter of constitutional virtue, by deciding that it would intervene legally to enforce what it saw as an adequate degree of parliamentary scrutiny of government. Both these matters are way outside the ambit of any normal court, especially one not mandated to support any particular written constitution.

Put shortly they are supremely matters of political ­– not legal – judgment. It is to Canada’s enormous credit that its Supreme Court, even though it has since 1982 had a constitution to supervise, seems to have no stomach for exercises of this sort. It is even more encouraging that on all the indications the Canadian political establishment has no desire for it to do so either.

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