Toronto’s City Hall Perfectly Represents Toronto Itself


Never has architecture so perfectly represented attitude

Never has architecture so perfectly represented attitude

A few years ago, I took the train from Ottawa to Toronto. For whatever reason, I became transfixed at this portrait of Toronto’s city hall mounted to the front of the passenger car. I started at it for a minute or so and then suddenly saw why I have become fascinated by it: the very architecture of Toronto’s city hall so perfectly represents Toronto and Torontonians.

This edifice consists of two concave towers built in like a fishbowl relative to one another. But curiously, all of the windows are built on the inner-concave sides so that the two towers look upon each other, while the outer-concave sides of the two towers are covered in a brutalist concrete facade and have no windows at all.

So, what is Toronto’s city hall? This building is open only to itself, whose large windows face only the other tower so that the city hall can marvel upon itself and become enthralled with itself, and it remains completely closed off to the rest of the world, to which it presents a brutalist, expressionless concrete wall — as if the rest of the world were unimportant because Toronto is the center of the universe.

That is why Toronto’s city hall so perfectly represents Toronto and the attitudes of Torontonians. Furthermore, I imagine that anyone who is not from Toronto will find this post funny, while Torontonians themselves would at first instinctively recoil in disgust and then find me obnoxious and petty for having made this observation.

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Posted in Humour & Satire | 4 Comments

Collective Ministerial Responsibility and Censure in Australia


One of my Australian readers commented on the previous post and linked to House of Representatives Practice, the Australian equivalent of O’Brien and Bosc’s tome, and its commentary on the censure of an individual minister.

Prime Minister and other Ministers

From time to time a specific motion of censure of or no confidence in a particular Minister or Ministers may be moved by the Opposition. The first case occurred in 1941, but the motion lapsed for the want of a seconder.[295] Such motions have become comparatively frequent in recent years,[296]often being directed at the Prime Minister. While the standing orders provide that a motion of censure of or no confidence in the Government shall have priority of all other business if it is accepted by a Minister as a censure or no confidence motion, there is no similar provision in respect of a motion of censure of or no confidence in a Minister. Such a motion is therefore, at least in theory, treated in the same way as any other private Member’s motion, including the speech times applicable to an ordinary motion, although after such a notice of motion has been given, standing orders may be suspended to enable the motion to be moved immediately.[297] It is common for Members, instead of lodging notices of such motions, to move to suspend standing orders to enable them to be moved immediately,[298] or for the substantive motion to be moved by leave.[299] A motion of censure of a Minister has been initiated by government action—the Leader of the House moving to suspend so much of standing orders as would prevent a shadow minister being compelled to move a motion of censure of the Minister ‘in place of the innuendo and imputation he is attempting to make by means of questions without notice’.[300]

A vote against the Prime Minister would have serious consequences for the Government. If the House expressed no confidence in the Prime Minister, convention would require that, having lost the support of the majority of the House of Representatives, the Ministry as a whole should resign, or alternatively the Prime Minister may advise a dissolution. The only occasion that a motion of censure of or no confidence in a Prime Minister has been successful was on 11 November 1975, when, following the dismissal of the Whitlam Government, a motion of no confidence in newly commissioned Prime Minister Fraser was agreed to. The terms of the motion also requested the Speaker to advise the Governor-General to call another Member, the former Prime Minister, to form a Government. The sitting was suspended to enable the Speaker to convey the resolution to the Governor-General, but did not resume as the House was dissolved by proclamation of the Governor-General.[301]

No motion of censure of or no confidence in an individual Minister (other than the occasion mentioned in respect of the Prime Minister in 1975) has been successful in the House. The solidarity of the Ministry and the government party or parties will normally ensure that a Minister under attack will survive a censure motion in the House. The effect of carrying such a motion against a Minister may be inconclusive as far as the House is concerned, as any further action would be in the hands of the Prime Minister, but parliamentary pressure has caused the resignation or dismissal of Ministers on a number of occasions.[302]

If a motion of no confidence in, or censure of, a Minister were successful and its grounds were directly related to government policy, the question of the Minister or the Government continuing to hold office would be one for the Prime Minister to decide. If the grounds related to the Minister’s administration of his or her department or fitness otherwise to hold ministerial office, the Government would not necessarily accept full responsibility for the matter, leaving the question of resignation to the particular Minister or to the Prime Minister.

A motion of lack of confidence in a Senate Minister has been moved in the House, and negatived.[303] Motions have been moved expressing no confidence in, or censure of, both the Prime Minister and another Minister.[304]

Interestingly enough, Australian authorities don’t regard such motions as inherently unconstitutional and prima facie breaches of the principle of collective ministerial responsibility. Based on those paragraphs, this is because House of Representatives Practice is taking into account a legitimate censure of an individual minister based on personal misconduct or departmental incompetence, which would also pass constitutional muster in Canada.

Also of interest is that the practice in Australia suggests that a censure of a Prime Minister in particular would amount to a motion of non-confidence in the government as a whole, which is consistent with the principle that the tenure of the Ministry as a whole does indeed depend upon the tenure of the Prime Minister. However, this idea of censuring the prime minister as a stand in for tabling a motion of non-confidence is more similar to the Germany’s “Chancellor Democracy”  than to what one would expect of the British House of Commons or Canadian House of Commons.

This system of kanzlerdemokratie, literally, “chancellor democracy,”[1] alludes to the centrality of the Chancellor relative to the cabinet, whose important flows from Germany’s Basic Law (its codified constitution).[2] After a general election, the President appoints a Chancellor on and in accordance with the Bundestag’s confirmation vote.[3] The Bundestag votes for a Chancellor, not for a party, who could best form a government that could command the confidence of that body. Similarly, the Bundestag can oust a government and propose another through a constructive vote of non-confidence directly at the Chancellor personally, not at the ministry as a whole as in the British and Canadian systems.[4] Ultimately, this flows from the German conception of responsible government and ministerial responsibility. Individual ministerial responsibility, as we understand it in Commonwealth parliamentarism, also exists in Germany, and ministers must take responsibility for the departments and portfolios. As in the Canadian system, the Chancellor assigns ministers their portfolios and can nominate and dismiss them at will. However, collective ministerial responsibility as we understand it in Canada, the United Kingdom, and Australia does not exist in Germany. There the similarities end. Ministers are responsible to the Chancellor for the conduct of their portfolios, not to the Bundestag directly. The Chancellor herself takes responsibility for the ministry as a whole, as per the Basic Law’s provisions on confirmation voting and constructive non-confidence. As Martin and Harrop put it, [The Chancellor] answers to parliament; ministers answer to her.”[5]

Overall, this slight variation in Australia shows the multiplicity of different constitutional conventions, customs, and practices within the Commonwealth Realms. The political institutions of Canada, Australia, and New Zealand are not clones of their progenitors in the United Kingdom; instead, they’re more like the offspring or descendants of their British forebears. They’ve each inherited and emphasised and developed different traits along separate paths. For example, Canada has weak bicameralism, while Australia has developed a powerful bicameralism to the point where its Senate rivals its House of Representatives and contains many “Senate Ministers” in Cabinet, further still to New Zealand, which abolished its Legislative Council in the 1950s and is a unitary state with a unicameral parliament. The idea of a uniform standard of constitutional conventions, norms, customs, and practices across the Commonwealth is as dead as the British Empire and the One and Indivisible Imperial Crown.

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[1] Rod Hague and Martin Harrop, Political Science: A Comparative Introduction, 5th Edition. (New York: Palgrave-MacMillan, 2007), 340.
[2] Ibid.,  341.
[3] Ibid.
[4] Ibid.
[5] Ibid.

 

Posted in Responsible Government | 3 Comments

On Collective Ministerial Responsibility and Impeachment


The Duke of Buckingham's Impeachment at the Bar of the House of Lords

The Duke of Buckingham’s Impeachment at the Bar of the House of Lords

Introduction: Ian Brodie’s Article in The Dorchester Review

Ian Brodie, one of Stephen Harper’s former chiefs of staff who served him both as Leader of Her Majesty’s Loyal Opposition and as Prime Minister, contributed an interesting article to the most recent issue of The Dorchester Review — to which, if you enjoy this blog, I recommend that you subscribe, since you’d probably also like the journal.

You should take as many grains of salt you deem appropriate before reading “Harper the Constitutionalist” in full, given that Brodie worked for Harper. However, I think that Brodie’s analysis of this  incident is constitutionally correct and quite interesting, since it had never occurred to me before and flew under my radar in 2006. What is more, this example illustrates the principle of collective ministerial responsibility, and it rather complements my piece in the same issue of The Dorcester Reivew, 1841 or 1848: When Did Responsible Government Begin? and my early findings on how the emergence of proper collective ministerial responsibility determines when Responsible Government truly came to its own.

On 21 and 22 June 2006, controversy erupted when New Democratic MP Nathan Cullen introduced a motion before the House of Commons Standing Committee on Environment and Sustainable Development (as it was then known) asking that Minister Ambrose alone be dismissed from Cabinet. Brodie summarizes the events as such:

Harper had long been a clear opponent of the Kyoto Protocol on greenhouse gas emissions. The Chrétien and Martin governments both advertised their support for the Protocol, but refused to take the steps required to meet the commitments Chrétien’s government had made in Kyoto. By 2006, Canada had no realistic options for meeting these targets, and Harper’s first environment minister, Rona Ambrose, admitted as much in public. NDP MP Nathan Cullen, unhappy with Ambrose’s admission, moved a motion in the House of Commons Environment Committee calling for her dismissal. The motion was based on the fundamentally unconstitutional idea that the House can vote non-confidence in a single minister.

Responsible government rests on the tenet that while ministers are individually and collectively accountable to the House, the House can only vote non-confidence in the government as a whole. Mr. Harper reminded everyone of this fundamental rule when he announced would see any vote of non-confidence in his environment minister as a lack of confidence in his government. The Liberals hurriedly voted with the Conservatives to defeat Cullen’s motion at the Committee’s next meeting, ending the manoeuvre quickly. But the American-style effort to impeach a single member of the ministry over a policy matter gave Harper the opportunity to correct a profound misunderstanding of Canadian constitutionalism. Ministerial responsibility has an individual dimension to it when malfeasance or bad administration is at issue. But on policy matters, the government are collectively responsible to the House. Harper’s timely warning was an astute effort to remind everyone of the appropriate separation of powers.[i]

In short, Brodie is undoubtedly correct in his analysis of the constitution and of how Responsible Government works.

Nathan Cullen’s Unconstitutional Motion of Impeachment Over Policy Disagreements

Cullen had proposed the following motion to the committee on 21 June 2006, which would have amounted to a de facto impeachment of Minister Ambrose, if even Cullen himself did not use that word. His seven articles of impeachment are as follows:

That because the Minister of the Environment has:

1) indicated in Bonn that Canada would not live up to its international obligations under the Kyoto Protocol;
2) refused to address the municipal mayors and councillors of the Federation of Canadian Municipalities assembled in Montreal in June, 2006;
3) been the first Federal Minister of the Environment to refuse to attend the annual Smog Summit in Toronto;
4) refused to appear before this committee in spite of a standing and open invitation;
5) tabled no plan for Canada to reduce Greenhouse Gas Emissions or to address Canada’s pollution problems;
6) done nothing to stop the regressive cuts to beneficial environmental programs such as Energuide for Houses Retrofit Incentive Program and for Low-Income Households;
7) implemented no single measure to conserve or protect Canada’s environment to date;

That the Standing Committee of the Environment and Sustainable Development call on the Government of Canada dismiss the Minister of the Environment from her current cabinet position and that this decision be reported to the House.

The Minutes indicate that while the Chair had ruled the motion in order, Conservative MP Maurice Vellacott appealed the decision, and the committee ultimately agreed 7 to 3 that Cullen’s motion was out of order.  While Mark Warawa touched upon the absurdity of Cullen’s impeachment motion, the committee ultimately voted out of order without explicitly exposing the unconstitutionality of Cullen’s proposal. As Brodie points out, this motion had nothing to do with personal misconduct on the part of Minister Ambrose, nor did it even pertain to administrative incompetence in Environment Canada, for which the minister is responsible. Instead, as you can clearly see, the motion pertained purely to the policies of the Harper government. Cullen’s only recourse would therefore have involved tabling a motion of non-confidence in the government as a whole.

And what does “that the Government of Canada dismiss the Minister of the Environment” even mean? The phrasing betrays Cullen’s ignorance of the constitution. (Conservative MP Mark Warawa touched upon this during the committee). The Governor General appoints and dismisses Ministers of the Crown on and in accordance with the advice of the Prime Minister, who normally conveys his views to the Governor General in writing through an instrument of advice.  Ultimately, this authority derives from sections 9 and 11 of the Constitution Act, 1867, which, by the established constitutional conventions of Responsible Government, the Governor General exercises on and in accordance with the Prime Minister’s advice. The House of Commons has no business in ordering the Prime Minister to shuffle his cabinet, and no statute — let alone a mere motion — can purport to bind the Prime Minister without also binding the Governor General, or else it would be unconstitutional and ultra vires of section 41(a) of the Constitution Act, 1982.

But Nathan Cullen insisted on pursuing his unconstitutional motion. The following day, he rose in the House of Commons on a spurious point of privilege and took the extraordinary step of asking that Speaker Milliken overrule the vote of the committee and deem his unconstitutional motion in order so that the committee would have to vote on the motion itself at its next sitting. He droned on for several paragraphs, culminating in this reasonable-sounding but fundamentally incorrect and self-serving nonsense — and probably delivered without a hint of irony:

When a majority is used to abolish the rules and deprive me of a fundamental right to hold the minister to account, our system has fallen into disrepute. I ask you, Mr. Speaker, to see the prima facie case in my question of privilege, have the committee look at the motion, have the system that has allowed this travesty to be reviewed at the procedure and House affairs committee, and help restore my faith and that of the people who sent me to this place.

Speaker Milliken, correctly, ruled against Cullen:

The committee is master of its own proceedings. It has made a decision. The hon. member clearly objects to it. I invite him to take up the matter with the committee once again, because in my view that is the proper venue for his complaint in this case. I do not believe he has raised a question of privilege.

In short, the Standing Committee and the Speaker made the correct rulings, but for the wrong reasons. In particular, Milliken should have upheld the committee’s ruling on the grounds that impeachment of individual ministers is obsolete and incompatiable with Responsible Government. Nathan Cullen’s motion was out of order because it proposed something unconstitutional. Prime Minister Harper correctly declared that he would regard such a motion for the impeachment of an individual minister on a matter of policy as a motion of non-confidence in the government as a whole, thus forcing the correct resolution of the issue.

Through his unconstitutional motion, Nathan Cullen attempted to re-introduce the idea that the Commons can impeach and force the Crown to remove a single minister for any reason. Brodie characterizes impeachment as an “American-style” procedure, which it is, in a way — but we should also bear in mind that the Americans derived both the concept and procedure for impeachment (the lower house tries, and the upper house convicts or acquits) from Stuart and Hanoverian England. Therefore, impeachment pre-dates the advent of Responsible Government and the principle of collective ministerial responsibility and cabinet solidarity; instead, the constitutionality and rationale of impeachment relies on a Tudor, Stuart, and early Hanoverian understanding of individual ministerial responsibility in which Privy Councillors were responsible only to the King and for their portfolio, but not responsible to one another as a group and not collectively responsible for all acts of the Crown. Worse still for Cullen, even the impeachments of the Tudor, Stuart, and Hanoverian eras normally pertained to personal misconduct — not mere disagreements in policy. The Commons impeached the Duke of Buckingham in 1626 because of his failure as a military commander (“his neglect of guarding the seas”) and personal corruption. His proposed impeachment of Rona Ambrose was truly unprecedented because it focused purely on policy, and his disagreement with it, and not at all about Ambrose’s personal conduct.

Conclusion: Collective Ministerial Responsibility Made Impeachment of Individual Ministers Obsolete

The British House of Commons explains that Cabinet Government and collective ministerial responsibility have made impeachment obsolete.

it should be stated unequivocally that for all practical purposes the procedure of impeachment is obsolete.

The earliest recorded impeachment was that of Lord Latimer in 1376 and the last was in 1806, when Lord Melville (Dundas) was charged by the Commons, but acquitted, of misappropriating official funds. Before Melville, the last impeachment had been against Warren Hastings in 1787 in relation to his role in India. An attempt to impeach Ministers occurred in 1713 for their part in the negotiating the Treaty of Utrecht. The Jacobite lords were impeached in 1716 and 1746 for rebellion. The last attempt to persuade the Commons to bring an impeachment was against Palmerston as Foreign Secretary, when private members alleged a secret treaty with Russia. The preliminary motion was not successful. Impeachment has not been used since 1806. 

There have been fewer than seventy impeachments during the whole course of English history. There are two distinct periods in which impeachment was relatively common; firstly in the 14th century until the establishment of the Tudor dynasty and secondly in the 17-18th century. A quarter of all of them occurred in the years 1640-2.

The British House of Commons held impeachment proceedings mostly enthusiastically during periods when the Commons and King clashed most often, as under the reign of Charles I between 1640 and 1642, and when members of the House of Peers supported the first and second Jacobite Rebellions in 1716 and 1746. In the latter case, grounds for impeachment certainly fell under the category that Erskine-May and the US Constitution of 1787 both call “high treason or of certain high crimes and misdemeanours.” Again, the Americans took this procedure from the British because their constitution and strict separation of powers also pre-date Responsible Government. By necessity, impeachment remains the only means of forcing corrupt or criminal officials from office because the President and his cabinet do not govern based on commanding the confidence of a majority in Congress.

It’s not a coincidence that the last impeachment proceedings took place in 1806, during the period where collective ministerial responsibility, what we call Responsible Government and what the British call Cabinet Government, was emerging. As the British House of Commons acknowledges, “Ministers have been impeached, but before the modern concept of the Cabinet was established.” Why? Because collective ministerial responsibility and votes of non-confidence have replaced impeachment.

The advent of Responsible Government rendered impeachment unconstitutional. Votes of non-confidence in the cabinet as a whole have replaced impeachment, but could, in a way, be regarded as a collective impeachment of the government’s policies and conduct. Essentially, Cullen orchestrated this too-clever-by-half move so that the Opposition could both get rid of Ambrose but also prevent the Harper government from losing the confidence of the Commons and triggering an election; Harper called their bluff and exposed the impossibility of that course of action. While it is possible that the controversy over Ambrose influenced his decision to assign her to a new portfolio is his first cabinet shuffle in 2007, this is not anything near equivalent to impeachment.  

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[i] Ian Brodie, “Harper the Constitutionalist,” The Dorchester Review, 6, no. 2 (2016): 36-37.

Posted in Confidence Convention, Responsible Government | 6 Comments

1841 or 1848: When Did Responsible Government Begin?


cover-of-dorchester-review-6-no2

The latest issue of The Dorchester Review contains my first little foray into this question of when Responsible Government began;  I hope to expand this initial contribution into a larger project. For now, you can read my initial findings here.

The idea came to me when I noticed that Alpheus Todd, the Librarian of Parliament for the United Province of Canada and the Dominion of Canada, wrote in Parliamentary Government in the British Colonies that Responsible Government was granted to Canada in 1841. He stated it in a perfunctory way as a matter of fact, not in order to make an argument on a matter of controversy. In other words, the creation of the United Province of Canada itself marked the beginnings of Responsible Government. What made this observation so interesting, in my mind, is that Todd was a contemporary to the Rebellions of 1837 and the re-organization of Upper Canada and Lower Canada into the United Province of Canada and could therefore speak with some authority on the subject. Yet, most historians of the 20th and 21st centuries place the grant of Responsible Government to 1848, when Governor General Lord Elgin first applied the principles contained in his letters and instructions. Canadians elected the 3rd Parliament in January 1848; when it convened in March of that year, the Reformers, let by Baldwin and Lafontaine, used their majority to pass a vote of non-confidence in incumbent conservative administration, and Lord Elgin then commissioned Baldwin and Lafontaine to form a new government. (The custom that the incumbent government resigns before the next parliament meets, when the results and outcomes of the election are clear, did not emerge until the late 19th century).

I explore in this article what accounts for that discrepancy in the historiography of Responsible Government.

Bowden, James W.J. “1841: The Year of Responsible Government?” The Dorchester Review 6, no. 2 (Autumn-Winter 2016): 69-72.

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Posted in History of British North America, Origins, Responsible Government | 4 Comments

The Old House of Commons Chamber (1866-1916)


 

The Old House of Commons Chamber

The Old House of Commons Chamber

While I was browsing at the Astrolabe on Sparks Street two days ago (which, sadly, is closing down soon), I happened upon this neat photograph of the old Canadian House of Commons, taken in 1898, 18 years before the great fire destroyed the original Center Block and the Victoria Tower. Library and Archives maintains a collection of official photographs of the interior and exterior of the Old Center Block, but this photo does not appear in the official collection. I have therefore decided to share it with you all because of its historical significance. And, if we’re honest, there is probably a significant overlap between those who would find this old photograph interesting and those who read Parliamentum! At any rate, this photograph deserves to be shared with a wide audience.

This original Center Block and Victoria Tower originally served as the Parliament of the United Province of Canada and became the Parliament of the Dominion of Canada after Confederation. They were built between 1859 and 1866, though judging by the photos and dates in the Library and Archives’ collection, Victoria Tower gained an upper level and spire circa 1870.

As you can see from Library and Archives’ collection, the interior shots of the Old House of Commons are taken from the government side, to the speaker’s right, and therefore show primarily the opposition benches. But this photograph from 1898 was taken from the opposite vantage point and therefore shows a side of the Old House of Commons that most of us haven’t seen before. I thought that the Old House of Commons is in the Uncanny Valley with respect to the current House of Commons; it looks somehow at once familiar yet also strange and unusual. The Old House of Commons was rotated 90 degrees relative to the New House of Commons, so it was wider than it is long. Based on the over-exposure in this and the Library and Archives’ photos, we can see that the Old House of Commons had skylights. Six chairs on the government side look more ornate than all the others, and I suspect that the Prime Minister sat in the chair furthest to the left in this photograph. If that is true, then the Prime Minister and Leader of the Opposition would have sat opposite each other and between the Clerks’ Table, whereas they sit well behind the Clerks’ Table in the New House of Commons. The Speaker’s Throne looks more ornate as well.

Most interestingly of all, the famous portrait of Queen Victoria, which now rests outside the main entrance to the Senate along with portraits of our other sovereigns and which was saved from the Great Fire of 1916, appears in the background of this photo in the galleries. In a way, the Commons is an odd place to put the Sovereign’s portrait, given the convention and parliamentary privilege that the Sovereign cannot enter the House of Commons!

Please let me know in the comments what other interesting things you observe. Merry Christmas!

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Posted in History of British North America, Parliament, Traditions and History | 4 Comments