Constitutional conundrum

Pity poor Michaëlle Jean, Canada’s Governor General.

Michaëlle Jean

She is a former journalist — hardly a constitutional law expert — but today she will be called upon to cut a Gordian knot of a constitutional problem.

This morning, at 9:30 a.m. Eastern Standard Time, Prime Minister Stephen Harper will ask Jean to “prorogue” (suspend the regular activities of) Parliament. The request is motivated by naked self-interest:  to avoid a vote of confidence, scheduled for Monday, that would almost certainly bring down the government.

The Prime Minister’s request will be unprecedented.

The usual practice is for a Government to begin a new session of Parliament by delivering a Speech from the Throne (which, incidentally, is read by the Governor General). The Speech from the Throne outlines the agenda of the government for that session of Parliament. Then the government spends the next year or two implementing as much of its agenda as it is able to achieve. Finally, the Prime Minister asks the Governor General to prorogue Parliament. That means that they plan to return a little later with a new Speech from the Throne, which will lay out a fresh agenda.

(The alternative is to “dissolve” Parliament, which means the Government is triggering an election, thus seeking a new mandate from voters.)

In this case, the Government delivered a Speech from the Throne barely two weeks ago — on November 19 — and it has not yet carried out any part of its agenda.

Usually, the Governor General would automatically grant the government’s request for a prorogation. But what to do in this case, when the Government has made no effort to carry out its agenda? When it seems that the government has lost the confidence of the House of Commons? When the government’s only motive in asking for a prorogation is to evade being held accountable by Members of Parliament?

Calling for the House to be prorogued at this point is like a kid who knows he is going to fail his High School exam, tries to pull the fire alarm and ask the teacher for two extra months to study. (Robert Silver)

Look at it this way. The Prime Minister will appeal to Parliamentary tradition insofar as it is the norm for the Governor General to automatically grant a Prime Minister’s request for a prorogation. And the Prime Minister will simultaneously flout Parliamentary tradition by seeking a prorogation only two weeks after delivering a Speech from the Throne.

Bob Beal outlines the Governor General’s three options in the Globe and Mail. To paraphrase him, the Governor General could:

  • refuse the Prime Minister’s request for a prorogation, effectively forcing the Prime Minister to face the House of Commons on Monday and try to survive a confidence vote;
     
  • agree to prorogue Parliament and allow the Prime Minister to carry on governing as though there’s nothing unusual going on; or
     
  • agree to prorogue Parliament but block the Government from carrying on business as usual.

Beal learned about the third option from constitutional scholar Ned Franks:

The Governor-General could prorogue the House, but on the condition that the government operate as it would between the time of a dissolution of Parliament and an election. That means the government could manage day-to-day affairs until Parliament was again summoned. But it could not do many things governments usually do. It could not, for example, appoint judges or ambassadors, or negotiate treaties with other countries, or take major policy initiatives that might bind future governments. In other words, the Governor-General would not approve orders-in-council that require cabinet decisions.

In which case, Canadians would have a government with one hand tied behind its back. During a serious, international crisis.

Beal seems to prefer the first option. To refuse the prorogation request would represent the “most minimal use” of the Governor General’s Royal Prerogative.

In effect, the Governor General would be saying, “I’m not going to bail you out of the mess you’ve created.” She wouldn’t assume that the government has lost the confidence of the House; instead, she would be saying, “You need to face your colleagues in the House of Commons and demonstrate that you still have their confidence.”

If the Prime Minister has indeed lost the confidence of the House, it would be profoundly undemocratic for him to continue to govern. Prorogation only evades the issue; it is an extremely cynical ploy.

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4 Comments (+add yours?)

  1. Juggling mother
    Dec 04, 2008 @ 08:42:09

    If she does allow the perogation, does it not just postpone the issue? Surely parliament will have to re-convene some time – and then they will table a motion of no confidence again?

    Considering you’ve only just had an election, Haper’s position is unique I would think.

    Reply

  2. Stephen
    Dec 04, 2008 @ 09:15:43

    Unique — that’s the right word.

    Harper is (a) stalling for time; (b) trying to rally public opinion against the proposed Liberal/NDP coalition; and (c) appealing to Liberal MPs not to support the coalition.

    And it just might work.

    Reply

  3. Juggling mother
    Dec 04, 2008 @ 10:00:58

    ….and what is the public perception of Harper, from the “man on the streeet” perspective? Is this really about politicians not liking that one of them is doing so much better, or are they actually representing their constituents feelings that the right party but the wrong man got in?

    We have very little info over here, other than which party is which really….

    Reply

  4. Stephen
    Dec 05, 2008 @ 08:22:48

    When it comes to public perception, it’s hard to generalize. However, it’s possible to conclude that Canadians, in general, (a) never warmed up to Stephen Harper and (b) never overcame a certain level of distrust of him.

    Harper should have won a majority in the last election. Stephane Dion ran a rather dreadful campaign, and the Liberal vote dropped to its lowest level since very early in Confederation. To fail to win a majority in those circumstances says that Canadians weren’t enthusiastic about Harper, either. They parked their votes with the Bloc Quebecois, the NDP and the Green Party, knowing that those parties could not form a government.

    But Harper has some stalwart supporters. In western Canada, the reaction to the proposed coalition is reportedly one of extreme outrage. The Liberal party alienated the west, beginning during the Trudeau era. Moreover, once upon a time, Harper wasn’t very far removed from being a western separatist: he spoke of building a “firewall” around the province of Alberta. So his base is in the west, and westerners are prepared to believe that the proposed coalition is undemocratic and illegitimate. (It isn’t, as a Brit like you would understand.)

    The opposition parties banded together out of a visceral dislike of Harper’s bully tactics. When Harper proposed eliminating public financing for political parties, it was calculated to strike at all three opposition parties. Under the circumstances — minority Parliament, economic crisis, promises from Stephen Harper that he would play nice with the opposition parties — it was a ruthless, partisan tactic. And so the opposition banded together against a common enemy.

    Now, with Harper’s resurrection of the separatist bogeyman, it’s safe to say that he has sunk his battleship in Quebec. Quebecers won’t take kindly to that characterization of the Bloc Quebecois, even though it is partially justified.

    Harper can’t recover from this. Conservatives will appreciate that he has led them to the brink of losing government, even if he manages to hang on for the time being. (Since the Governor General agreed to prorogue Parliament, Harper has bought himself a little time to find an escape.) He is now a seriously wounded leader, and I think he’ll have to consider resigning.

    Reply

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