Great article, thanks! I've been interested in this case as someone who only semi-successfully studied constitutional law many years ago. I struggle with the notion that the justiciability of the prorogation power is even in question on a division of powers and rule of law basis. Its seems axiomatic that a power that allows the executive branch to render the legislative branch ineffective has constitutional limits and that those limits can be enforced by the judicial branch. These were obviously bad facts to be making the argument (god help us if good facts ever appear), but that the GG could refuse to prorogue if they had a reasonable belief (or whatever the standard would be) that the PM was acting beyond their constitutional authority and that the decision would be reviewable by the courts seems obvious to me. Anything else would put the PM above the law.
"Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty.
...
The sovereignty of Parliament would… be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament… An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty."
This spurred me to do some reading (with the caveat that a little learning is a dangerous thing).
If, it is argued that the GG has no choice but to prorogue Parliament when "asked" by the PM, then why does the procedure exist? If the procedure exists, it must have had some significance in the past. When and how was that significance lost? Is it just because no PM has made an unreasonable request in recent memory, and it is therefore now deemed that the Crown cannot refuse? (Use it, or lose it?)
In the UK, it seems that the PM does not have carte blanche and the Crown can refuse prorogation for several reasons, one of which is when the government has lost or is about to lose the confidence of the House of Commons. ( How does one decide that Mr. Singh’s action is/is not inevitable?)
The claimed reason for prorogation was because the House had become deadlocked. Wouldn’t a 1 day prorogation have been sufficient to clear the agenda and restart the House’s business? The PM prorogued Parliament for 77 days.
Furthermore, the evening before asking the GG for prorogation, the PM asked the Liberal party president to begin the process of selecting a new leader.
Is it reasonable to assume that prorogation was to enable the Liberal party to choose a new leader before the PM lost the confidence of the House? If so, could the GG have recognized this, but felt powerless to refuse prorogation?
"Furthermore, it is far from clear when any motion of non-confidence likely would have been placed before the House for a vote, had the House not been prorogued." Good read.
I am not a fan of the work-around where the Prime Minister's advice is the subject of judicial review. The Courts should drop the charade, and accept that 'executive' prerogative decisions — like all executive decisions — can be subject to judicial review.
Why shouldn't the King in his judicial capacity (i.e., the King on the Bench) be able to judicially review decisions made by His Majesty in his executive capacity (either on the advice of his Ministers, or in extremely narrow circumstances, without advice)?
In essence, clearly the King in Parliament has an elevated position in the separation of powers. However, why should the King in his executive capacity be on a higher plane than the King in his judicial capacity?
I can only speculate. However, I think that Professor Lagasse referred to the "offices of the Queen..." (rather than the King) because that is the express wording of the Constitution Act, 1867 (even though we of course now have a King).
Great article, thanks! I've been interested in this case as someone who only semi-successfully studied constitutional law many years ago. I struggle with the notion that the justiciability of the prorogation power is even in question on a division of powers and rule of law basis. Its seems axiomatic that a power that allows the executive branch to render the legislative branch ineffective has constitutional limits and that those limits can be enforced by the judicial branch. These were obviously bad facts to be making the argument (god help us if good facts ever appear), but that the GG could refuse to prorogue if they had a reasonable belief (or whatever the standard would be) that the PM was acting beyond their constitutional authority and that the decision would be reviewable by the courts seems obvious to me. Anything else would put the PM above the law.
I also found this interesting quote:
"Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty.
...
The sovereignty of Parliament would… be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament… An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty."
This spurred me to do some reading (with the caveat that a little learning is a dangerous thing).
If, it is argued that the GG has no choice but to prorogue Parliament when "asked" by the PM, then why does the procedure exist? If the procedure exists, it must have had some significance in the past. When and how was that significance lost? Is it just because no PM has made an unreasonable request in recent memory, and it is therefore now deemed that the Crown cannot refuse? (Use it, or lose it?)
In the UK, it seems that the PM does not have carte blanche and the Crown can refuse prorogation for several reasons, one of which is when the government has lost or is about to lose the confidence of the House of Commons. ( How does one decide that Mr. Singh’s action is/is not inevitable?)
The claimed reason for prorogation was because the House had become deadlocked. Wouldn’t a 1 day prorogation have been sufficient to clear the agenda and restart the House’s business? The PM prorogued Parliament for 77 days.
Furthermore, the evening before asking the GG for prorogation, the PM asked the Liberal party president to begin the process of selecting a new leader.
Is it reasonable to assume that prorogation was to enable the Liberal party to choose a new leader before the PM lost the confidence of the House? If so, could the GG have recognized this, but felt powerless to refuse prorogation?
"Furthermore, it is far from clear when any motion of non-confidence likely would have been placed before the House for a vote, had the House not been prorogued." Good read.
Great article.
I am not a fan of the work-around where the Prime Minister's advice is the subject of judicial review. The Courts should drop the charade, and accept that 'executive' prerogative decisions — like all executive decisions — can be subject to judicial review.
Why shouldn't the King in his judicial capacity (i.e., the King on the Bench) be able to judicially review decisions made by His Majesty in his executive capacity (either on the advice of his Ministers, or in extremely narrow circumstances, without advice)?
In essence, clearly the King in Parliament has an elevated position in the separation of powers. However, why should the King in his executive capacity be on a higher plane than the King in his judicial capacity?
I’ve officially lost all hope in Canada.
Too bad someone can't spell. Was it the Judge or the author who misspelled "linchpin"? Para 68
Similarly referring to the “Queen”; when the monarch is presently the “King” at this time
I can only speculate. However, I think that Professor Lagasse referred to the "offices of the Queen..." (rather than the King) because that is the express wording of the Constitution Act, 1867 (even though we of course now have a King).
I would also note that it was the Chief Justice who used the term "lynchpin." That said, both versions of the spelling are are correct: https://www.merriam-webster.com/dictionary/lynchpin