Categories: Andrew Coyne

She can say no

Elsewhere on this site you will find commentators shrugging indifferently at, if not actually…

by Andrew Coyne on Friday, August 22, 2008 2:19pm - 56 Comments

Elsewhere on this site you will find commentators shrugging indifferently at, if not actually cheering on the Tories for their casual subversion of their own fixed-election-dates law. As usual, I find myself in the minority.

As I argue in the column, I think the Governor General would be well within her rights to prefer her First Minister’s initial advice, as duly considered and enacted into law — that Parliament should not be treated as a plaything, that lives or dies at the Prime Minister’s pleasure; that elections should not be rigged to the governing party’s advantage, in timing as in any other respect; that the public should not be deprived of fair and open competition among the various contenders for power — rather than submit to his later fit of expediency. If the law does not constrain her discretion, it plainly does his, which constraint he now pretends she must ignore. To collaborate in this would make nonsense of legislation she herself has signed, and as such would bring the Royal Prerogative into disrepute.

That’s assuming any of this means anything — that this is not just another Tory bluff. Since they are so at pains to convince everyone that they mean it this time, I can only assume that they don’t.

Tags: election speculation, fixed election dates, Governor General, Stephen Harper

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Rob Silver

Let me try some statutory interpretation here:

Clause One: The PM can call an election whenever he feels like it….

Rest of Bill: The PM is abdicating his right to call an election whenever he feels like it and instead fixing the election date.

Either this “Act of Parliament” was always meaningless symbolism or one of the two clauses above mean something else…..or maybe the Torys got screwed by a Liberal bureaucrat…..

Breaking a key (if meaningless) promise days before an election call is certainly bold if nothing else.

Back to my checkers game – it’s a lot more complicated than it looks.
Cam

Mr. Coyne, you’re column is quite excellent… you and your colleagues have outdone yourselves with the writing of late… Ms. O’Malley’s humor, Mr. Well’s Hemingwayesque opus, and Mr. Wherry’s clarity and corporate memory for example. It’s the latter why I add my comment here… as for the ‘indifferent shrug’ is that not the body language of choice for the Ottawa press gallery in terms of Harper’s less than strong adherence to his word, his promises, his comments of say, earlier in the month?

Please- I don’t want this an indictment of media, or for the hard core Conservatives reading, the MSM (Absolutely. Hate. That. Term.)… but as an observer of politics, of news, of current affairs, I am so tired of having reporters and pundits tell us that all of the broken promises do not matter… that it’s “inside baseball” or some other insipid cliche. One suspects that this is the type of thing a Conservative staffer whispers over and over to themselves as they try to get to sleep. I’m watching, and I don’t think I am alone, witness some of Mr. Wherry’s coverage this week, or as I referenced elsewhere, the poll commissioned by the Privy Council Office.
http://deleted Sandi

Damn – I’d love for GG to say no….just to see the backlash and Harper’s face…..he rules the world in his own mind.

Love to see…just to see what happens. You can be assured she’s lose her job mind you – he doesn’t like her anyway so what’s she got to lose.
John Lemay

The fixed election dates should be fixed in stone. One election date period. The torys have whined and cried the time, play with my marbles or I pack up and take them home. They are not the only one. The voting public did not give them a clear majority, they have to work with the other parties and practice compromise, It’s the role of the voter to be fed up with minority rule not the PM.
Jarrid

Stephen Harper has completely outmanouvered Dion on the election timing. I agree with Mr. Wells’ assessment that Harper never wanted to go to an election early on in his minority mandate. Instead, he wanted to get Canadians used to having him as Prime Minister. Dion thought that only he had the power to bring the government down and the election timing was in his hands given the election law. He openly bragged about it. Thinking that it was his election to call gave him the illusion that he was in control of events. It turns out not to have been the case.

Stephen Harper has now decided that he has governed for a sufficient amount of time for Canadians to get to know him. Moreover, it is he who will decide when the election is called, not Stephane Dion. Dion looks impotent and a little foolish: did no one advise him of what the law said?

Harper is entering into the 4th year of his mandate in 4 months or so. The Governor General will take his advice and an election will be called for the simple reason that it’s time for an election.

The election should be and will be about the issues. But the fact that Harper has run circles around Dion on the election timing tells me that we may be in for a bit of a mismatch.
Lord Kitchener’s Own

So, count Jarrid amongst those who think the “fixed election date” law isn’t worth the paper the Governor General signed. He even mocks Dion for naively believing that the law the Tories trumpeted as a great democratic reform was actually a meaningful piece of legislation (though, here I agree, Dion should have known the Conservatives were just jerking the country around on this one).

Shorter Jarrid: “Harper is a political genius because he convinced Dion that he was being honest and sincere when he was talking ( and legislating) about democratic reform”.

It’ kinda hard to argue with that.
Brian

Andrew,

Surely even you would agree that the juvenile actions we are currently witnessing in Parliament (from all four parties) mean that there has to be a limit somewhere that says minority parliaments do not have to last the full four year term. There is no way that the GG can say no to advice from her First Minister on this one.

The poisonous atmosphere is even worse today than it was in May 2005 when Paul Martin ignored that vote of non-confidence to allow time to buy Belinda’s vote.

An election now will clear the air. Even if its another minority, we’ll still have several years of relative stability.
http://jasoncherniak.com Jason Cherniak

…but she won’t.

I think we need to accept the reality that however reasonable it might be for the GG to refuse a dissolution, there is about a 0% chance that it is going to happen. Dion himself has said that it is up to the PM, although it would be unethical considering the legislation. Why would Jean ask Dion to form a government when it seems that he would refuse? Then you would have a real constitutional crisis with no prime minister and the two major contenders for the job recommending an election.

Would Jack Layton end up as PM for a 36 day writ?
John.K

If it is “unethical considering the legislation”, and Jean believes it to be unethical, she does have another choice besides refusing a dissolution or asking Dion to govern. She can resign herself, leaving Harper in the position of having to appoint a new GG for the sole purpose of asking her/him to dismiss the government as his/her first act.

Ridiculously hypothetical, I know, but so has been the rest of this thread….
sf

Harper should just join with one opposition party to vote himself out. In a minority government, the governing party should be able to vote no-confidence in the government, if they cannot progress their legislative agenda.
Jack Mitchell

Mr. Coyne writes, in his post:

“To collaborate in this would make nonsense of legislation she herself has signed, and as such would bring the Royal Prerogative into disrepute.”

Her mistake was not to veto (or “take into consideration” or whatever the formula is) that unconstitutional piece of legislation in the first place.

The question now is whether she will violate the unwritten constitution by refusing dissolution and ignoring the PM’s constitutional Advice.

Mr. Coyne writes, in his comment:

“The Governor General is the protector of the Constitution. King-Byng wasn’t a constitutional crisis — it was a wholly fabricated “crisis” that King exploited for political gain. He may have won the election, but Byng was right in law.”

It was indeed a constitutional crisis, fabricated or not. (“Crisis” is an objective not a legal term.)

But the main problem is that convention has, in the intervening 80 years, required the GG to follow Advice without hesitating. To do otherwise would be to recur to an older model of the Crown’s practical powers. (Which, IMHO, were better, but which have lapsed.) If we do that, where do we draw the line? How do we avoid politicising the Crown, as future PM’s nominate GG’s for their malleability and/or partisanship? This is why we can’t defy 80 years of convention.
madeyoulook

A non-partisan question for a knowledgeable Parliamentary historian: how many minority Parliaments in Canada have been dissolved by loss of confidence in the House, and how many minority Parliaments have been dissolved by the GG on advice of the PM while confidence was still maintained? Of the latter (if any), what were the durations of their terms (i.e. how does that compare with the current duration)?
Is it not the GG’s job to solicit MPs (effectively the other party leaders) about the possibility of reconstituting a governing coalition before calling an election? Is that only a legal (or convention-al) step to take after loss of confidence, or is that a valid option once the current PM gives up on governing? Does the validity of that option (again, by convention I suppose) diminish given the already-impressively elapsed duration of the current minority Parliament? Has that validity threshold been passed?
All the above information may pre-suppose the quirk of the fixed / not-fixed election date legislation recently passed into law. I would just appreciate that factual info from a reliable historian as a background to the partisan speculation over what the new legislation brings to the debate / campaign.
To the historian who may be so kind to address any or all of these questions, thank you in advance.
madeyoulook

OK, here’s what I’ve got, with thanks to Wikipedia, the Canadian Encyclopedia Online, and parl.gc.ca (the latter being the least helpful).

2nd(1873): 0y 10m: MacDonald (9+m), Mackenzie (1d)
NOT A MINORITY AT OUTSET; COLLAPSE BY PACIFIC SCANDAL, GG request to Mackenzie to govern: election immediately called on Mackenzie’s advice to GG.

14th(close to 50-50, de facto majority, debate as to maj vs. min)

I have chosen to not include the two above as “minority” governments.

15th(1925): 1y 6m; King (1y6m), Meighen (3d)
MINORITY: TRANSFER OF GOVERNING PARTY; LOST IMMEDIATELY ON A CONFIDENCE VOTE King-Byng affair: Dissolution advised by King, refused by Byng. Meighen accepted Byng’s invitation, then promptly lost a confidence vote.

16th(1926): 3y 6m: King
“MINORITY” (PROPPED UP BY PROGRESSIVES) “DISSOLVED” AFTER 3.5 YRS (parl.gc.ca does not even list this as a minority, Wikipedia does. So does history: “longest minority govt in Canadian history”) (No evidence found of a loss of confidence)

23rd(1957): 0y 3.5m: Diefenbaker
MINORITY DISSOLVED BY “SNAP ELECTION CALL”

25th(1962): 0y 4m: Diefenbaker
MINORITY LOST TO NON-CONFIDENCE MOTION

26th(1963): 2y 4m: Pearson
MINORITY DISSOLVED BY ELECTION CALL

27th(1966): 2y 3m: Pearson (2y3m), Trudeau(days)
MINORITY DISSOLVED BY ELECTION CALL Confidence vote lost, then all parties voted to ignore / revoke the “confidence” status of the lost vote, continuing the Pearson minority, ostensibly because Pearson was in process of retiring anyways. Was that actually legal?

29th(1973): 1y 4m: Trudeau
MINORITY LOST TO NON-CONFIDENCE MOTION

31st(1979): 0y 2m: Clark
MINORITY LOST TO NON-CONFIDENCE MOTION

38th(2004): 1y 2m: Martin
MINORITY LOST TO NON-CONFIDENCE MOTION

39th(2006): 2y 5m and counting: Harper
MINORITY GOVT STILL IN EFFECT AS OF AUG 25/2008
(“second longest minority ever”)

Summary:
10 Minorities, 9 of which have ended.
5/9 ended by loss of confidence
4/9 ended by election call by PM
(closer to 50-50 than I would have guessed initially)

Durations of four confidence-retained Minorities: 3y 6m
2y 4m
2y 3m
0y 3.5m

Only one minority government saw the transfer of power between parties without an election: King to Meighen, during the “King-Byng” affair. A short-lived transfer, only long enough to immediately fall to a confidence vote.

As for the GG: I have no idea how often prior GG’s have invited other party leaders to secure confidence of the House to continue a minority-government Parliament, or whether it matters that the House falls to non-confidence or that the incumbent PM advises dissolution. So, help still requested on the remaining Q’s in prior post. Thanks.
Jack Mitchell

madeyoulook, thanks for the interesting info. I’d add, however, that when the Government loses a confidence vote the PM then goes to the GG to request dissolution for that reason. So in that case the GG is also acting on the Advice of the PM. The GG has only acted against Advice in the King-Bing Thing. The weird 1966 confidence two-step meant that the House reaffirmed support for the Government before the PM was duty-bound to advise dissolution.

To say it again: for the GG to refuse Advice would provoke a major constitutional crisis. Of course, it’s an open question whether even a major constitutional crisis would be noticed by Canadians or respected by the various parties. That would be the final humiliation.
madeyoulook

Jack, I fear you may be lumping too much together in the “advice of the PM” basket. You see the same justification for the GG acting when the PM must visit Rideau Hall as when the PM chooses to visit. I see it differently.

And I would still appreciate historical facts surrounding the concept of consulting other MPs, particularly other party leaders, regarding the prospect of continuing Parliament with a new governing party that might enjoy the confidence of the House, and without dropping the writ. Does the GG ever avail him-her-self of this power? Or is it more of an actual constitutional obligation? Or is it more of a constitutional nicety that convention has obliterated? If that power is still legally and practically available to the GG, is it to be called on: (a) when a minority government falls to a confidence vote; (b) when a minority-leading PM gives up too soon (à la King — sorry, couldn’t resist); (c) either a or b?

Chief Justice McLachlin, surely you’re still up, and surely you are a regular reader here. Care to offer up some ex parte thoughts? We won’t tell anyone…
Jack Mitchell

madeyoulook, I appreciate the distinction, but the point is that the GG must act on Advice.

To say that Parliament, of which the PM is leader even for that brief interval in which he no longer has the confidence of the House to govern, cannot Advise the Crown on when to dissolve the House would be to roll back our constitution several centuries.

In a minority situation, the convention is (I believe) that the GG can ask a different leader to form a government only in the very early days of a Parliament, when the first PM has attempted to govern and not been able to. This PM has been PM for nearly three years – actually almost the same length of time as King had governed prior to the King-Byng Thing.

Not to add another wrinkle, but it would be, if possible, even more unconstitutional for the Supreme Court to force the GG to act one way or another. The GG has to decide this independently, based on convention. The choice is clear, she must act on Advice.
Mike

Harper and his cabinet can resign from the GG’s government for the duration of this parliament. She can either ask Dion to form a coalition with the Bloc and NDP or she can dissolve parliament and call an election. Informally, she will probably seek Harper’s advice and select an election date of his choosing.

Harper can claim that he will not have violated the meaningless fixed-term election date. He will just be informing the GG that he and his party will no longer participate in her government for the duration of this parliament. This is sometimes done in European democracies.
Geiseric the Lame

“But Andrew, isn’t the GG’s entire role really just a contrivance?…”

My read of things is that the way it works is the GG is the only person that stands between Cabinet and any law they want. The passage of bills through Commons and the Senate are conventions, not requirements.
Jack Mitchell

Geiseric:

“My read of things is that the way it works is the GG is the only person that stands between Cabinet and any law they want. The passage of bills through Commons and the Senate are conventions, not requirements.”

The same could be said of most of our constitution. The passage of bills by Parliament is a convention that predates the Magna Carta (1215). The Crown’s attempt to govern without Parliament is what provoked the English Civil War (1642) and the Glorious Revolution (1688).

Under our current constitution, the main thing standing between the Cabinet and unfettered rule is the voter.
Geiseric the Lame

“Under our current constitution, the main thing standing between the Cabinet and unfettered rule is the voter.”

ok

now you’re scaring me
Jack Mitchell

I mean that legitimacy flows from the voter to the MP to the Cabinet; that the fundamental act of accountability takes place at election time.
katy

since the GG is in essence an extension of the monarch are we allowed to write to her and let her know that we as citizens would like her to deny Harper’s request to dissolve parliament? Is this considered inappropriate?
Jack Mitchell

What an interesting idea! Doesn’t sound inappropriate to me, though I would hope her sense of duty would not be swayed one way or the other. In this she is acting not on behalf of the people of Canada per se but on behalf of the constitution, however you interpret that . . . Still, I think it’s a beautiful idea.
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