Beyond The Commons

Aaron Wherry covers all the goings-on in and around Parliament Hill. Follow Aaron on Twitter: @aaronwherry

Categories: Beyond The Commons, Capital Read

Honouring a parliamentarian

by Aaron Wherry on Wednesday, August 24, 2011 12:20pm - 19 Comments

Dan Gardner suggests a fitting tribute to Jack Layton would be the completion of a guiding document for our democracy.

There is a fitting way to honour such a man. Since the beginning of the year, the Public Policy Forum and the David Asper Centre for Constitutional Rights at the University of Toronto have been bringing constitutional experts together to discuss the production of a sort of pocket guide to Canadian parliamentary governance. That may sound like a trivial thing. It’s not. The Canadian system, inherited from Britain, is largely composed of unwritten rules. This project would put those rules on official paper for the first time.

It is essential that that happen.

Tags: dan gardner, democracy, house of commons, Parliament, Peter Russell

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Anonymous

Has the way we govern ourselves changed much, if at all, since Forsey? His guide is certainly one of the best document on the matter for the public at large. What we need are scholars who will write books on what happened in Canada 2006-2010, particularly 2008!

Anonymous

Forsey’s How Canadians Govern Themselves is great, but I’m not sure it covers the “unwritten rules” of how we do so (When would it be appropriate for a GG to stop a prorogation, and what are the precedents? When a government is defeated in the House, when should a GG call an election and when should they ask the LOO to form a government, and the like).

I did a quick search of the PDF of Forsey’s book and the word “convention” only appears three times in 58 pages, and nowhere in relation to a specific convention (once in relation to a “Leadership Convention”, once to say “A third basic difference between our system and the Americans’ is that custom, usage, practice and “convention” play a far larger part in our Constitution than in theirs“, and a third time in the very next paragraph explaining the example that unlike the American President, who’s qualifications are spelled out in the constitution, the PM is only mentioned once in the Canadian Constitution, which has no discussion of “prime ministerial qualifications, the method of election or removal, or the prime minister’s powers (except for the calling of constitutional conferences)” and that the PM is only ever mentioned in other Acts of Parliament in relation to the salary, pension and residence of the incumbent. I don’t think Forsey discusses the unwritten rules and conventions of our governance much beyond acknowledging that we have a lot of unwritten rules and conventions (the word “unwritten” does not appear at all, and the word “written” only 19 times, mostly in relation to things that ARE in the written constitution).

Anonymous

“When a government is defeated in the House, when should a GG call an election and when should they ask the LOO to form a government, and the like. ”

Forsey: “If a cabinet is defeated in the House of Commons on a motion of censure or want of confidence, the cabinet must either resign (the Governor General will then ask the leader of the Opposition to form a new cabinet) or ask for a dissolution of Parliament and a fresh election. In very exceptional circumstances, the Governor General could refuse a request for a fresh election. For instance, if an election gave no party a clear majority and the prime minister asked for a fresh election without even allowing the new Parliament to meet, the Governor General would have to say no. This is because, if “parliamentary government” is to mean anything, a newly elected House of Commons must at least be allowed to meet and see whether it can transact public business. Also, if a minority government is defeated on a motion of want of confidence very early in the first session of a new Parliament, and there is a reasonable possibility that a government of another party can be formed and get the support of the House of Commons, then the Governor General could refuse the request for a fresh election. The same is true for the lieutenant-governors of the provinces. ”

Parliamentary democracy, supremacy of parliament to me means that its breath is that of its members. It is a living organism. The decisions are made by living people based on the present circumstances, not on codes and ideas of politicians who lived two hundred years ago and dealt with situations of their time.

Forsey’s writing gives a clear, precise and easy to undertand look into how we govern ourselves. To codify today the workings of parliamentarians of twenty years from now goes against what in my view parliamentary democracy and supremacy of parliament stand for.
Anonymous

“When a government is defeated in the House, when should a GG call an election and when should they ask the LOO to form a government, and the like. ”

Forsey: “If a cabinet is defeated in the House of Commons on a motion of censure or want of confidence, the cabinet must either resign (the Governor General will then ask the leader of the Opposition to form a new cabinet) or ask for a dissolution of Parliament and a fresh election. In very exceptional circumstances, the Governor General could refuse a request for a fresh election. For instance, if an election gave no party a clear majority and the prime minister asked for a fresh election without even allowing the new Parliament to meet, the Governor General would have to say no. This is because, if “parliamentary government” is to mean anything, a newly elected House of Commons must at least be allowed to meet and see whether it can transact public business. Also, if a minority government is defeated on a motion of want of confidence very early in the first session of a new Parliament, and there is a reasonable possibility that a government of another party can be formed and get the support of the House of Commons, then the Governor General could refuse the request for a fresh election. The same is true for the lieutenant-governors of the provinces. ”

Parliamentary democracy, supremacy of parliament to me means that its breath is that of its members. It is a living organism. The decisions are made by living people based on the present circumstances, not on codes and ideas of politicians who lived two hundred years ago and dealt with situations of their time.

Forsey’s writing gives a clear, precise and easy to undertand look into how we govern ourselves. To codify today the workings of parliamentarians of twenty years from now goes against what in my view parliamentary democracy and supremacy of parliament stand for.

Anonymous

That’s more than I thought was there on my cursory reading, so thanks for the quote. Is there much on the precedents that would inform these decisions by the GG though? We all know that the GG “could” do this, or “might” do that in one circumstance or another (well, you and I and most of the commenters here know that anyway) but it’s nonetheless true that when it comes time for such decisions to be made, they tend to emerge fully formed from behind a curtain at Rideau Hall, and everyone is left speculating as to how exactly the issue was decided.

I’m fully supportive of a flexible governance by convention in which living people make decisions based on contemporary circumstances, and I like having a non-elected GG who is meant to be above politics making those decisions in exceptional circumstances. I must confess, however, to a small amount of trepidation when unelected leaders disappear into Government House with advisors, while historians and constitutional experts argue outside in front of the media (“She’s going to let him prorogue!”… “Of course she’s not going to let him prorogue!”) and then when the decision is announced, those same scholars are still left arguing over the basis for the decision, because no one’s really sure precisely how it was arrived at.
Anonymous

That’s more than I thought was there on my cursory reading, so thanks for the quote. Is there much on the precedents that would inform these decisions by the GG though? We all know that the GG “could” do this, or “might” do that in one circumstance or another (well, you and I and most of the commenters here know that anyway) but it’s nonetheless true that when it comes time for such decisions to be made, they tend to emerge fully formed from behind a curtain at Rideau Hall, and everyone is left speculating as to how exactly the issue was decided.

I’m fully supportive of a flexible governance by convention in which living people make decisions based on contemporary circumstances, and I like having a non-elected GG who is meant to be above politics making those decisions in exceptional circumstances. I must confess, however, to a small amount of trepidation when unelected leaders disappear into Government House with advisors, while historians and constitutional experts argue outside in front of the media (“She’s going to let him prorogue!”… “Of course she’s not going to let him prorogue!”) and then when the decision is announced, those same scholars are still left arguing over the basis for the decision, because no one’s really sure precisely how it was arrived at.

Anonymous

Forsey’s How Canadians Govern Themselves is great, but I’m not sure it covers the “unwritten rules” of how we do so (When would it be appropriate for a GG to stop a prorogation, and what are the precedents? When a government is defeated in the House, when should a GG call an election and when should they ask the LOO to form a government, and the like).

I did a quick search of the PDF of Forsey’s book and the word “convention” only appears three times in 58 pages, and nowhere in relation to a specific convention (once in relation to a “Leadership Convention”, once to say “A third basic difference between our system and the Americans’ is that custom, usage, practice and “convention” play a far larger part in our Constitution than in theirs“, and a third time in the very next paragraph explaining the example that unlike the American President, who’s qualifications are spelled out in the constitution, the PM is only mentioned once in the Canadian Constitution, which has no discussion of “prime ministerial qualifications, the method of election or removal, or the prime minister’s powers (except for the calling of constitutional conferences)” and that the PM is only ever mentioned in other Acts of Parliament in relation to the salary, pension and residence of the incumbent. I don’t think Forsey discusses the unwritten rules and conventions of our governance much beyond acknowledging that we have a lot of unwritten rules and conventions (the word “unwritten” does not appear at all, and the word “written” only 19 times, mostly in relation to things that ARE in the written constitution).

Anonymous

The strength of our parliamentary system has been, in large part, the unwritten nature of many of its processes, as is the strength of much of our constitution. It allows both the flexibility of practices changing with time, and the security that there is no single document that can be easily amended to fundamentally change a process that works, on the whole, very well.
Some people have a fascination with writing everything down in a final and conclusive form, but they seem to mainly have enthusiasm for ensuring that the written understanding of how things work is their understanding, not that of anyone else, or someone twenty or one hundred years down the road. It is a form of egotism to assume that one’s current understanding of how parliament should work is the only understanding of how it should work. This type of excessive formalism tends to lead to stasis. It is a remedy for a problem that doesn’t exist.

Anonymous

I’d agree if we were talking about CODIFYING conventions into written law, but I don’t think the flexibility of the precedents and conventions with which we govern ourselves is diminished by someone writing cogently and succinctly about the precedents and conventions that we use to govern ourselves.

I don’t think the intent here is to codify our conventions into written law, I think the intent is to write about the conventions and precedents in a form that allows Canadians to achieve a better understanding of our system of governance. To me, it’s the difference between an effort to make conventions more rigid and binding (which I agree, would be bad), as opposed to an effort to make conventions less arcane and mysterious. The project is not meant to enforce any particular person’s interpretations of our unwritten rules and conventions on the Canadian public, it’s to ensure that more of the public understands how we’re truly governed beyond a handful of historians and constitutional experts.

Anonymous

I suppose my concern arises from the suggestion this would be a”guiding document”, as if it had some force other than the opinions (however valid) of its authors. If the goal is simply to educate and assemble the best available opinions as to what constitutional and parliamentary practices govern our affairs, I’m all for it. The more education available to Canadians on such matters the better.

Anonymous

Even if it’s semi “official” and referred to as a “guiding document” I don’t believe that such a document would have any more force in law than a Harry Potter novel, but I could be wrong. I see where your concern is coming from though.

Anonymous

I’d agree if we were talking about CODIFYING conventions into written law, but I don’t think the flexibility of the precedents and conventions with which we govern ourselves is diminished by someone writing cogently and succinctly about the precedents and conventions that we use to govern ourselves.

I don’t think the intent here is to codify our conventions into written law, I think the intent is to write about the conventions and precedents in a form that allows Canadians to achieve a better understanding of our system of governance. To me, it’s the difference between an effort to make conventions more rigid and binding (which I agree, would be bad), as opposed to an effort to make conventions less arcane and mysterious. The project is not meant to enforce any particular person’s interpretations of our unwritten rules and conventions on the Canadian public, it’s to ensure that more of the public understands how we’re truly governed beyond a handful of historians and constitutional experts.

Anonymous

Wow, Dan Gardner takes an interesting approach: using the death of Layton to bash Harper – Nice

Anonymous

What in that column did you take to be “bashing Harper” exactly???

If that was “Harper-bashing” in your opinion, you’d FAINT if you saw what Harper-bashing looks like!

Anonymous

Ok, maybe “bash” is a little over-the-top. I dont understand exactly what he is proposing here as a tribute - kind of strecthing things a bit

Anonymous

I’m not sure Gardner means a “tribute” in a literal sense. I don’t think he means “let’s write a guide, and call it “The Jack Layton Memorial Guide to Democracy”. I think he just means more generically “in the spirit of honouring Jack Layton’s memory, here’s a project I hope gets done”. More a tribute in the sense of doing something nice that Layton would have appreciated as opposed to a formal “tribute” to Layton. Does that make sense?

I think he’s suggesting more the “in honour of my Grandfather I’m going to be nicer to my elderly neighbours and help them out more” type of tribute, as opposed to the “in honour of my grandfather I’m going to build a garden in his name at the local park” kind of tribute.

Anonymous

OK – that’s cool with me

Anonymous

I’m not sure Gardner means a “tribute” in a literal sense. I don’t think he means “let’s write a guide, and call it “The Jack Layton Memorial Guide to Democracy”. I think he just means more generically “in the spirit of honouring Jack Layton’s memory, here’s a project I hope gets done”. More a tribute in the sense of doing something nice that Layton would have appreciated as opposed to a formal “tribute” to Layton. Does that make sense?

I think he’s suggesting more the “in honour of my Grandfather I’m going to be nicer to my elderly neighbours and help them out more” type of tribute, as opposed to the “in honour of my grandfather I’m going to build a garden in his name at the local park” kind of tribute.

Anonymous

What in that column did you take to be “bashing Harper” exactly???

If that was “Harper-bashing” in your opinion, you’d FAINT if you saw what Harper-bashing looks like!