The Globe supported the 2008 prorogation; today, in a lengthy editorial, it is supporting an NDP proposal to legislate a requirement that Mr. Harper and his successors not have the power to request that the Governor-General prorogue Parliament without a majority vote in the House of Commons.
1. It's understandable that the NDP (and the Bloc) as perennial opposition parties would support such a proposal; however, in reversing its recent position, The Globe owes its readers an explanation of why Canada and Canadians would be better off today had that been the law of the land in 2008.
2. The Globe argues that "Ms. Jean had the power to deny Mr. Harper's request in 2008, but Canada is a constitutional monarchy, and when it comes to politics the Crown acts on advice, even if the advice is bad." In fact, in our constitutional democracy, the Governor-General is bound to accept the advice of an elected official, the Prime Minister - but only if he or she has the confidence of the House. As Peter Hogg has observed, that is the case today but it was not the case in 2008 when the Globe presumably considered Mr. Harper's request to prorogue to have been good advice.
3. In today's editorial, The Globe cites Queen's professor Ned Franks as its authority.
In 2008, Mr. Franks - unlike the Globe - was clearly in favour of the Governor-General calling on the Liberal-NDP coalition to form a government with the support of the Bloc, without having to bother with an election. And, had the paper at least accepted his advice back then that the Governor-General place conditions in granting prorogation, a noxious precedent would have been avoided and we'd not be in the position we are in today.
4. Today, Professor Franks himself acknowledges that the NDP law would have to be carefully drafted as it would likely be challenged. (Aside from the Government, has Professor Franks or anyone else given any thought to the small matter that a Senator or two might look askance at the prospect of MPs alone having a say in when they are permitted to transact the business of Canadians?)
5. Two other experts frequently cited by The Globe appear dubious about the NDP-proposed law: Lorne Sossin says "I do not think such legislation would be enforceable nor do I think it is the optimal solution." Peter Russell says that the NDP would be better off proceeding by way of a Parliamentary resolution.
6. In backing Jack Layton's proposal to legislate on the matter of prorogation, The Globe cites Mr. Harper's fixed election date law as a precedent. In fact, Mr. Harper's failure to respect that law was challenged by Democracy Watch; a quick read of Mr. Justice Michel Shore's dismissal of that challenge demonstrates why Mr. Layton's law - and the resolution proposed by Professor Russell - would likely suffer a similar fate if challenged.
7. In fairness to the Globe, the paper correctly notes that, in the matter of prorogation, we are dealing with the unwritten constitution and powers of a prime minister that derive "from an accumulation of royal prerogatives, including powers to effectively suspend or dissolve parliament and even to declare war." However, in comparing our situation (unfavourably) with that in Britain, it fails to note that Mr. Harper has curbed the prime minister's power to unilaterally deploy troops in a combat operation - as was the case in Afghanistan - whereas the British prime minister still retains that power.
8. Why is that omission from the editorial important?
With that precedent in mind, Mr. Justice Shore's decision suggests an alternative route for those of us who are concerned about the Prime Minister - any prime minister - thumbing his nose at fundamental aspects of our constitutional democracy.
In curbing his power to deploy the Canadian Forces in a combat operation, Mr. Harper has likely established a constitutional convention that will bind his successors in the exercise of this aspect of the powers that flow from Crown prerogative.
Michael Ignatieff has committed never to use the power to prorogue in a tight spot. If he were to become Prime Minister - a distinct possibility - he could achieve the same result by the very same means.