The True Nature of Crown Prerogative and Responsible Government


When PhDs Don’t Understand Westminster Parliamentarism

The debates in Westminster parliamentarism on the role of Crown-in-Parliament vs. the Crown-in-Council mostly result from legitimate differences of interpretation of Crown prerogative, such as between Dawson’s and Forsey’s respective schools of thought. Unfortunately, sometimes the debates result from factually incorrect assertions that even PhDs and tenured professors propagate, perhaps hoping that their credentials and their name will suffice in place of arguments or citations! Christian Nadeau, Professor of Philosophy at the University of Montreal, provides one such example.

Nadeau wrote “Constitutional Rule Bending: When Angry Citizens Push Back and Fight for Democracy” in the same issue of Canada Watch to which Peter Russell contributed the article featured in my previous blog entry. Essentially, Nadeau interprets the prorogations of 2008 and 2009 as evidence Harper’s desire to govern without the Crown-in-Parliament, and emblematic of a contempt for parliamentarism. Ironically, Nadeau shows contempt for Westminster parliamentarism through his sheer ignorance of this form of government. Sadly, Nadeau’s unsubstantiated opinions are all too common, even among academics. But how did these misunderstandings and faulty interpretations of parliamentarism become so prominent? I would argue that Trudeau’s reform of the estimates in 1968 hastened the decline of the House of Commons by preventing it from carrying out its centuries-old purpose of holding the Crown to account through scrutinizing its expenditures properly.

The Respective Roles of Cabinet (the Government) and Parliament

Cabinet governs; Parliament passes supply

Nadeau argues: “In effect, prorogation works to dissolve the confidence and trust between people and their government by allowing the government to function without those who were elected precisely to govern.”[1] This statement contains numerous inaccuracies and myths about “parliamentary democracy.” First and foremost, Cabinet governs; Parliament passes supply. Parliament, despite Nadeau’s claim, does not govern! Second, his argument that a prorogued House “allows the government to function without those who were elected to govern” contains an inherent contradiction because a government (i.e., the Cabinet consisting of Minister of the Crown) always exists, even when Parliament is dissolved. As the Guidelines on the caretaker convention explain, the government by convention exercises restraint during the writ period and until the appointment of the new government, but the legal powers of the government always remain in place.

Responsible government means that Ministers of the Crown, led by the Prime Minister, take responsibility for acts of the Crown (policies and expenditure) and are responsible to the House of Commons.[2] The implementation of policy normally requires expenditure as well as corresponding legislation. Therefore, the government takes responsibility for both, but the government must command the confidence of the House. The House in turn expresses its confidence by passing supply; withholding supply amounts to a loss of confidence, after which the Prime Minister must either resign or advise the Governor General to dissolve Parliament. Contrary to popular and academic belief, Parliament neither makes policy nor controls the legislative agenda. The Crown prerogatives of prorogation and dissolution correspond logically to our system in which the government controls the legislative agenda, must introduce and approve of all money bills, and be responsible for all expenditures (the Royal Recommendation). The Prime Minister decides when his government’s legislative agenda has been completed and advises prorogation accordingly. As some of my previous posts have shown, various Prime Minister have also legitimately and constitutionally invoked prorogation as a delay tactic. In a system of responsible government where Minister of the Crown, and not the Sovereign or Governor General determine policy, “the Governor General accepts the Prime Minister’s advice on summoning and proroguing Parliament”[3] and “the Governor General does not retain any discretion in the matter of summoning or proroguing Parliament, but acts directly on the advice of the Prime Minister.”[4]

The House of Commons does not make policy. If backbenchers who generally support the government and side on the government’s side of the House object to government policy, then can mount a revolt in caucus, or on the floor of the House of Commons, if necessarily. Her Majesty’s Loyal Opposition normally objects to the government’s policy as a matter of course and therefore presents itself to the electorate as an alternative government.

1968 and the Decline of the House as Granter of Supply

Jim McGrath, a former Progressive Conservative MP from 1957-1963 and from 1968 to 1986, argued that the Trudeau government’s reform of the estimates in exchange for the modern Question Period in 1968 marked the decline of the House of Commons as an institution.[5] I would add that it also marked the decline of loyal opposition as an institution. As Tom Hockin has established, when “the House of Commons” holds the government to account, this task invariably falls almost exclusively to the loyal opposition;[6] backbenchers who support the government rarely mount intra-party revolts here in Canada, unlike their Australian and British counter-parts.

We should begin by asking how effective is Question Period in holding the Government to account. That question speaks to the genesis of the Question Period as it currently exists. As you know, back in the ‘60s the government brought in some major rules changes. They did away with the Committee of Supply, that was the old committee of the whole, which examined estimates in the House. That was when the Government was truly accountable. When they took the Committee of Supply out of the House, the estimates were automatically referred to standing committees, which had to report back to the House by the end of May. If they didn’t report back to the House by midnight at the end of May, they were deemed to have reported to the House.[7]

McGrath served as a parliamentarian both before and after Trudeau’s reforms of 1968 that robbed the House of Commons of its core function: proper scrutiny of the Crown’s expenditure, the passage (or not) of supply. Since 1968, if a House Standing Committee fails to scrutinize government expenditure and to pass supply, the Crown still receives its supplies anyway on a fixed timetable. Trudeau’s reforms greatly emboldened the Cabinet vis-à-vis the House and severely restricted the primary historical function of Parliament since the Glorious Revolution and the Constitutional Settlement of 1689: to hold the Crown (now represented by Her Majesty’s Ministers) to account. While I favour maintaining the prerogatives that naturally belong and should continue to belong to the Crown in an era of responsible government – like prorogation and dissolution – I oppose new encroachments into the domain of the Crown-in-Parliament. Thankfully, some parliamentarians are now calling for reforms that would make the House Government Operations and Estimates committee more effective in holding the government to account.[8]

In the wake of this new arrangement, the House of Commons has been adrift and searching for a purpose. The Crown encroached upon the rights of the Crown-in-Parliament – and the latter eagerly participated in its own decline. Now the House of Commons – aided by PhDs like Peter Russell and Christian Nadeau – wants to encroach upon Crown prerogatives. Any meaningful reform of parliament would restore the balance based on the proper and ideals of responsible government that I listed above. Anything else would begin a transformation into a “post-responsible government” model of parliamentarism. Either way, we must fundamentally analyze our current state of parliamentarism and determine what system we ought to promulgate. Obviously, I favour the traditional system outline above.

Conclusion: “Parliamentary Democracy” vs. “Responsible Government”

Russell and the other social democratic Romantics reject the traditional and more accurate term responsible government and propagate instead parliamentary democracy. And by “parliamentary democracy”, they of course refer exclusively to the House of Commons and the confidence convention, not to the Crown-in-Parliament (Queen, Senate, Commons) as a whole.[9] The word “democracy” elicits an emotive and emotional appeal and thus derives from the vocabulary of political activism and Romanticism. I’m not describing Russell’s intent, merely my interpretation of the effect of this terminology.  Russell attributes to the same meaning to “parliamentary democracy” as other scholars do to “responsible government”; however, the more emotive connotation of “democracy”, as opposed to the rational “responsible government”, allows one to not merely disagree with the interpretations other scholars, but to treat their views as inherently anti-democratic. This idea of “parliamentary democracy” also emphasizes the role of the House of Commons both at the expense of the Crown-in-Parliament as a whole (Queen, Senate, House) and the Cabinet (the Crown-in-Council). It distorts the true nature of Crown prerogative within the system of responsible government and helps sow misunderstanding about the relationship between the Crown, Crown-in-Council, and Crown-in-Parliament.

In this video, Peter Russell subtly calls Prime Minister Harper an absolute monarch:

In “The Power and the Glory of the British Monarchy” (1992), Peter Hennessy, a pre-eminent English constitutional history from whom many Canadian PhDs could learn much, provided an accurate explanation of the Crown-in-Council vis-à-vis the Crown-in-Parliament and the basis of the Cabinet’s power in the system of responsible government. The basic formula applies to Canada, Australia, and New Zealand as well. Contrary to popular and academic belief, responsible government deliberately preserved the powers of the Crown and transferred them to the Crown-in-Council, which exercises them subject to the Crown-in-Parliament. By convention, Cabinet therefore must command the confidence of the House of Commons in order to govern; however, it derives its authority from the Crown, not from the Crown-in-Parliament. These basic facts of responsible government are anathema to any PhD who talks of “parliamentary democracy”. (Go to the 3-minute mark for Hennessy’s lucid remarks).

The British Prime Minister is strongest chief executive anywhere in the Western world because he’s largely taken the absolute powers of the monarchy unto himself or herself. It’s quite wrong to think that they shifted to Parliament. The lie is always that sovereignty is the Queen-in-Parliament. Most of the powers that matter stop halfway between the Palace and Westminster –in Number 10 Downing Street – either exercised by individual Secretaries of State or by the Prime Minister. All the ones that matter – peace, war, recognizing countries, unrecognized countries – are Royal prerogatives, but they’re carried out for the Queen by the Prime Minister. So those powers are Royal powers, but they’re put into commission in civilians – properly elected civilians, I have to say. But still, the basis of that power is Royal.

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[1] Christian Nadeau, “Constitutional Rule Bending: When Angry Citizens Push Back and Fight for Democracy,” Canada Watch (Spring 2011): 19.
[2]
Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102.
[3]
Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa, Government of Canada, 1968): 149.
[4]
Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa, Government of Canada, 1968): 150.
[5]
Peter Dobell, ed. “The Question Period: What Former Members Think,” Occasional Papers on Parliamentary Government (Ottawa: Allegra Print and Imaging, May 2001): 4. [Accessed 10 April 2010].
[6]
Thomas A. Hockin, “The Loyal Opposition in Canada: An Introduction to Its Ideal Roles and their Practical Implementation For Representative and Responsible Government.” (PhD Thesis, Harvard University, March 1966): 14.
[7]
Peter Dobell, ed. “The Question Period: What Former Members Think,” Occasional Papers on Parliamentary Government (Ottawa: Allegra Print and Imaging, May 2001): 4-5. [Accessed 10 April 2010].
[8]
Jessica Bruno, “MPs Slam ‘Shoddy, Hasty’ Annual Review of Feds’ Spending Estimates, Franks Calls It ‘Depressing,’” The Hill Times (Monday, 20 February 2012). 
[9]
Peter H. Russell, “Prorogation – Prime Ministers Must Not Become Kings,” Canada Watch (Spring 2011): 17.

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17 Responses to The True Nature of Crown Prerogative and Responsible Government

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  13. B. Thomas Hall says:

    Very good points here, James. The prorogation controversy of 2009, in particular, revealed huge gaps in the public’s, the media’s, politicians’ and even some scholarly experts’ understanding of the true relationship between Parliament and the government. They didn’t understand that if the government didn’t want to effect any legislative changes or seek a grant of supply (i.e. authority to spend), then the government simply didn’t need to convene Parliament. Given the reaction to the length of that prorogation, however, I wonder whether we did not witness the emergence of a new constitutional convention in that no future government would likely prorogue Parliament for such a lengthy period without good cause. In any event, I think your piece does much to put the Crown-Government-Parliament relationship back in its proper place. Just one quibble (there’s always at least one!): I think you’ve oversimplified the changes made to the supply (estimates) process in 1968. It wasn’t just a government-imposed set of Standing Order changes: it had deeper roots than that and was the fruit of much committee work (started under a minority government) and of the complaints of members of all parties. It hasn’t turned out quite as expected or hoped, but it wasn’t intended to destroy the ability of the Commons to hold the government to account. In fact, quite the contrary. See the excellent historical analysis in “The Canadian House of Commons: Procedure and Reform” by John B. Stewart (McGill-Queen’s UP, 1977). Parliamentarians have been trying to improve on it ever since, but I have little hope for the success of the current efforts because, once again, they are based on a misunderstanding of the proper role of MPs.

    • Thomas,

      I do appreciate your quibble in this case, given that you’ve listed what sounds like an excellent source on the reforms from 1968. That small article (the citation contains the hyperlink) is thus far the only source that I’ve read on the reform 1968.

      But if the program of ’68 did in fact cause the current futility of parliament, then perhaps I’m not over-estimating its true effect. I’ll accept that I might have misjudged its intent, but this case requires that we look more toward outcomes than the original intentions.

      James

      • B. Thomas Hall says:

        Thanks, James. Just to clarify a point: the supply process that existed prior to the 1968 reform wasn’t working either and MPs of all parties were unhappy with it (as I am given to understand, not having been there at the time). So the 1968 rule changes were really attempts to improve the process, both for the government and the opposition. The chief reason it has failed is that the standing committees, to which estimates were referred after 1968, haven’t done the job. It was thought that the standing committees would be able to examine the estimates of each department and agency in more detail than a committee of the whole (the Supply Committee) was able to do. That, as you know, didn’t turn out to be the case.

        • Very well, that makes sense. I’m not sure what factors contributed to the breakdown of the Supply Committee in 1968; I’d like to research that at some point and compare it with the breakdown of the current system in order to come up with a better process. I like the idea of a Supply Committee because it allows MPs who are interested in budgetary matters to specialize and apply those skills.

          • B. Thomas Hall says:

            The old House of Commons Committee of Supply was a committee of the whole, that is, the House itself sitting as a committee. So no specialization at all. The UK House of Commons has tried an Estimates Committee, which was a select committee and not a committee of the whole. I don’t know how well it has worked. The mandate of the Govt Operations Committee was enlarged a few years ago to include the estimates, but individual estimates continue to be referred to the various standing committees.

I invite reasonable questions and comments; all others will be prorogued or dissolved.

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