On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist Peter Russell.
Constitutional conventions
This has been a period of great uncertainty about some of the “unwritten” conventions of our constitution. Most of the principles and rules about operating our system of parliamentary democracy take this form. In the final analysis what these principles and rules are depends on all of us – on the people – so it is certainly good to see you who are here today and so many others concerned about these issues.
Recent events have established that the GG can say “NO”
There should now be no doubt that the Governor General had the legal power under our constitution to refuse the request Mr. Harper made yesterday to prorogue parliament. Our parliament is made up of three components: The House of Commons, the Senate and the Crown. Normally the Crown’s role is entirely formal and ceremonial, and the Crown’s powers are exercised on the advice of the Prime Minister and the government he leads. However, the Crown in a parliamentary democracy reserves the power to act independently, if need be, to protect the most fundamental principles and the integrity of parliamentary government. In that sense the Crown can act as a check and balance on Prime Ministers and the governments they lead. There is similar role for appointed or indirectly elected presidents in republican parliamentary systems.
Prime Minister Harper’s request that the first session of Canada’s 40th parliament be prorogued just as it was beginning, in order to escape an imminent no-confidence vote, was an occasion for the Governor General to act independently and exercise her judgment as to whether this request should be granted. The event established that in such a situation the Governor General is not a “rubber stamp”. If our constitution permitted a Prime Minister to prorogue Parliament any time he wants to, then there would be no way of ensuring his accountability to parliament. So last Thursday removed any doubt about the GG having a discretionary power and the duty to act independently in these situations.
Did the GG exercise her discretionary power wisely?
The decision the Governor General had to make was very difficult. On one side, the PM’s request seemed to contravene the most fundamental principle of parliamentary democracy, namely that the right to govern depends on having the confidence of a majority in the House of Commons. On the other side were considerations of a more prudential nature. This is nearly always the case with the exercise of the Crown’s reserve powers in a democratic age – there proper exercise is a combination of principle and prudence.
On the side of prudence, the Governor General had to think of the consequences of her decision. If she rejected the PM’s request, he would have to resign and she would have to ask the Leader of the Opposition, Mr. Dion to form a government. The Crown cannot govern without ministers responsible to parliament. These ministers must form a government that will have the confidence of the H of C. Could she be sure that Mr. Dion’s party was solidly behind him and that his government would not soon be defeated in the House of Commons? If she had assurance from the Prime Minister that there would be a new session of parliament at the end of January with a budget aimed at addressing the economic crisis much more vigorously than the Minister of Finance’s economic update statement, and responding to opposition concerns, and that he was prepared to face the test of confidence then, this might offset the uncertainty and turmoil that refusal of the PM’s request would surely arouse. These were some of the considerations that might weigh in favour of acceding to the request for prorogation and suggest to me that this would not be an easy decision to make– for anyone, including those of us who understand and respect the principles of parliamentary democracy.
Legalizing constitutional conventions
It has been suggested that the Supreme Court of Canada make decisions such as the one the GG made on Dec 4. I don’t think this is a good idea. It would transform constitutional conventions into judiciable legal rules and make judges the final arbiters of how parliamentary democracy should operate. While I have great respect for the Supreme Court of Canada, I prefer to leave this part of our constitutional to evolve through the political process. That process leaves responsibility for these conventions, in the final analysis, with we the people. Codifying these conventions in law would mean that instead of thinking through ourselves what is required to safeguard the parliamentary system we would have to parse Supreme Court decisions to figure out what parliamentary democracy requires. I don’t think we should sub-contract out this responsibility to the Supreme Court of Canada.
In Australia, after Governor General Kerr, in 1975, dismissed PM Whitlam, a process was set up to codify that country’s constitutional conventions. It went on for many years, traveled around the country and involved many political leaders and legal academics. In the end it came to nothing, because it was impossible to get agreement on the precise wording of the conventions. I doubt that if we Canadians took on such a project we would have any more success than the Australians.
Writing rules into written Constitutions does not produce absolute certainty. In 1982 we transformed the rules for amending our formal Constitution from convention to written provisions of the Constitution. Yet now we have uncertainty about whether the Harper government’s bill to indirectly elect Senators needs provincial consent. It is foolish to chase after certainty in all constitutional matters.
Need for public education
The recent crisis has shown appalling levels of ignorance about the most basic rules of parliamentary democracy – including the view put forward by Prime Minister Harper that in parliamentary elections voters elect a Prime Minister who cannot be replaced without another election.
Education about the traditions, practices and principles of parliamentary democracy is most urgently needed at the secondary school level. But it is also important to have more coverage of this part of our constitution at the university level. There is a lot of good writing about the so-called unwritten conventions of our constitution. Andrew Heard, a Ph D from the our own Dept of Political Science, has written an excellent book on the subject. How much coverage does this part of the constitution receive in the law schools’ constitutional curriculum? Are legal academics capable of escaping the narrow confines of case law to think and reason normatively about parliamentary democracy? I hope so – but I am not at all sure.
Stabilizing minority governments
Parliamentary democracy is always evolving. Canadians need to learn to live with minority government as the norm of parliamentary life rather than a frightful departure from majority government. In my book, Two Cheers for Minority Government: The Evolution of Canadian parliamentary democracy (Emond/Montgomery, 2008), I suggest some changes that we need to make in the practices and rules of our parliamentary democracy to better accommodate minority parliaments. One is the practice used by many of Europe’s constitutional monarchs of appointing an informateur, a widely respected and politically knowledgeable person, to probe the parliamentary situation after an election and give the Crown an assessment of which party leader is most likely to be able to secure majority support in the newly elected parliament. I believe that the introduction of such an institution in Canada would do much to reduce the uncertainty about which party or combination of parties is most likely to command the confidence of the House of Commons.
Another suggestion is to introduce a requirement that parliament meet soon after an election. In contrast to virtually every other parliamentary democracy in the world, our Constitution stipulates only that there must be a session of Parliament once a year. This leaves us at the mercy of an incumbent Prime Minister whose party has not won a majority seats to keep Canadians waiting for months before they know who has the confidence of the House of Commons they have elected. In my book (p. 147) I draft an amendment to the Constitution Act, 1867 that would stipulate that the Governor General should summon the House of Commons no later than a short period (say 30 days) after an election. This amendment could be enacted under section 44 of the Constitution Act, 1982 that requires only a simple majority vote in the federal Parliament. We urgently need this amendment.