Monday, April 22, 2013

Prorogation: digging deeper into the leadmine

Professor Radha Persaud, who teaches public law and public policy, examines a bill in the Ontario legislature that would restrain first ministers' use of prorogation.  He is not keen on it, or on any new process for prorogation.

In place of legislative change, he offers what seems to be doctrine among our constitutional scholars. What we need, he argues, is for premiers and prime ministers to play nice. Leaders should practise "restraint" and then all will be well.
Parliamentary tradition suggests that responsibility for the legitimate use of prorogation lies with the premier who is responsible and accountable to the people. ...In my opinion, it was incumbent on the premier to be more responsible and accountable to the people of Ontario for his decision — not the lieutenant-governor. Meaningful civic engagement by our elected leaders is imperative for good government under the rule of law.
Shouldn't some responsible scholar point out that this is, well, INSANE?

A system of government that depends on the self-restraint of the executive is, not to put too fine a point on it, no system of government at all.  Surely it is not hard to see that the rule of law ceases to exist if the only law that constrains the executive is its own sense of "meaningful civic engagement."

This idea that parliamentary democracy is based on the sweet, self-effacing, reasonableness of the boss seems to be assuming the status of a convention among our scholars. Two Three years ago this was the argument of 200 political scientists faced with Mr Harper's early 2010 prorogation. And today the often wise Parliamentum blog endorses Professor Persaud's vision of parliamentary leaders having no accountability beyond self-restraint.

Professor Persaud repeatedly declares that the premier is accountable to "the people."  But before that he is accountable to the legislature. What restrains an executive is what the legislature will tolerate. In functioning parliamentary systems, backbenchers on both sides of the aisle have an interest in having the legislature in session, because only when it is sitting do the leaders have much need of them. So in parliaments where the tradition of the accountability of leaders to caucuses survives, a leader who does away with the legislature knows he will face the displeasure of both his own backbenchers and the united opposition -- and is restrained. In Canada, where we have de facto abolished the accountability to leaders to caucuses, that restraint is no longer available.

But the political scientists who seem eager to make it a rule that there is no accountability to parliament at all, only the sense of self-restraint a leader may possess,...  well, they are not making things better.
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