Wednesday, February 3, 2010

Former Liberal MP Rats On the Troika Perogy Proposals

A former Liberal MP slams his party and the NDP for their perogy proposals.

The best thing about writing in the Globe’s dead-tree edition is the feedback from its unique readership.

For example, in reaction to yesterday’s column, I received an e-mail from Edward McWhinney – a former professor of constitutional law and adviser to governments, who sat in the House of Commons as Liberal MP for Vancouver-Quadra from 1993-2000. In it, Professor McWhinney disses the Liberal and NDP prorogation proposals and suggests an ingenious one of his own:

Norman Spector, Columnist, Globe & Mail

I read with great interest your comments in the Globe and Mail of February 2 on a current proposal by the federal NDP leader, and a later, rather more intricate and “Gothic” plan by the Liberal leader, to have the House of Commons establish, in terms, specific limits and conditions to the Governor General’s Reserve, Prerogative powers, such as they may exist today, as to Prorogation. I fully share the constitutional-legal doubts expressed by Quebec jurist, Benoit Pelletier, as reported in the G&M of January 26, as to Mr. Layton’s proposal, and these doubts would seem to apply even more to the brief now advanced by Mr. Ignatieff.

It is surely beyond the constitutional mandate and competence of Parliament to seek to legislate in regard to what is, after all, a fully autonomous and separate, coordinate institution of government in relation to Parliament.

To say that is not to suggest that constitutional changes should not be considered to the incidents and attributes of the office of Governor General today or, more specifically, to the constitutional relations inter se of the institutions of head-of-state and head-of-government: it is simply that the office of Governor General is too important in our system of government for amendment in it to be ventured upon by conscious constitutional indirection, in the interstices of a proposed change to Parliamentary rules and practice.

If Mr. Layton were now to delete the references to the Governor General and to limit his proposal to the “saving” of public legislation still before the House at the time of Prorogation he would respond to heartfelt irritations felt by MPs of all main parties in recent years in having Bills on which they had spent many hours working together in Committee automatically disappear into legal limbo on the grant of the writ.

Mr. Layton could at the same time suggest the addition to all such grants in the future of a specific, deliberately limited time duration: this has certainly been the practice, one might say convention, in exercises in grants of Prorogation under the Chretien and the Harper governments equally, and there is no reason why it shouldn’t now be formalised.

Why not, at the same time, replace the esoteric Latinism, “Prorogation” by something in plainer English that is more nearly descriptive of what has actually been involved in the historical record of the 105 grants of Prorogation, to Liberal and also Conservative Prime Ministers, since the Constitution was first adopted in 1867?

Best wishes, and keep on with your always stimulating columns. [I remember earlier valuable exchanges of views with you during your years in Ottawa when there was still the possibility to save Meech Lake].

Ted McWhinney

(h/t) Norman Spector

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