The Demise of Responsible Government and the Crown Prerogative on Defence


Perilous Precedents: Parliamentary Approval of Troop Deployments

Many scholars have lamented the Harper government’s alleged “abuse” of Crown prerogatives on prorogation and dissolution, and its overall attitude toward Parliament (i.e., the House of Commons). I of course disagree with the argument that Prime Minister Harper has “abused” Crown prerogative, based on the Government of Canada’s true method of operation as well as the Manual of Official Procedure of the Government of Canada, the little-known but still-used officialization of the conventional constitution from 1968.

Apart from Professor Philippe Lagassé, most scholars have also overlooked that the Harper government has been too deferential to parliament in at least one key area: defence policy. By allowing the House of Commons to approve troop deployments and the Canadian participation in NATO’s International Security Assistance Force (ISAF) in Afghanistan, the Harper government has created a series bad precedents and contributed to the development of new “contrived conventions” that will ultimately threaten the most important component of our conventional constitution: responsible government.

In my last entry on “The True Nature of Crown Prerogative and Responsible Government”, I explained why the Crown prerogatives on prorogation and dissolution properly rest with the Crown under the system of repsonsible government. This entry will extend that explanation to the Crown prerogative on defence.

Ministerial Answerability vs. Accountability and the Crown Prerogative on Defence

Philippe Lagassé wrote a comprehensive study for the Institute for Research on Public Policy on the Crown prerogative on defence; it explains the differences between the Minister’s responsibility to the House of Commons and Chief of Defence Staff’s answerability before Parliament. The Canadian Armed Forces “serve the Crown rather than Parliament.”[6] In short, the CDS is “answerable” before parliamentary committees and thus “limited to informing and explaining, rather than disclosing policy preferences or revealing what military advice was given to the defence minister.”[7] In contrast, the Minister of Defence is both accountable to the House of Commons and answerable to parliamentary committees.[8] The Minister of Defence takes individual responsibility for the management of DND, and Cabinet as a whole (or the relevant Cabinet committee) takes collective ministerial responsibility for any policy or decision that requires defence expenditures, such as troop deployments.[9] The Minister of Defence and the CDS are also accountable to the Prime Minister.

The Chief of Defence Staff exercises powers delegated from the Crown, not from Parliament.[10] However, the current CDS has demonstrated in public a disturbing ignorance of his lines of authority to the Crown. Presenting a keynote address before the Conference of Defence Associations on 24 February 2012, General Natynczyk acknowledged some Senators and MPs and highlighted their presence as an indication of “the Government’s support of the Canadian Forces.”[11] In reality, the presence of individual Senators and MPs signifies either the support of those individuals, the support of their parties, or the support of Parliament – but never the support of the Government. I found Natynczyk’s statement particularly bizarre because his civilian superior, the Minister of the Crown for National Defence, the Hon. Peter MacKay, had addressed the conference earlier that morning. It was the Peter MacKay’s presence that signified the Government’s support of the Canadian Armed Forces. Cabinet makes all policy for the Canadian Armed Forces and takes responsibility for its policies and expenditures before Parliament.

These direct lines of accountability from the CDS [Chief of Defence Staff] belie any notion that the CDS has accountabilities to Parliament or that Parliament directly “controls” the military. Both the National Defence Act and the power of appointment enforce the norm that the Canadian military serves those who are accountable to Parliament, not Parliament itself. […] [T]he armed forces serve the Crown rather than Parliament. Supreme authority for the command of the armed forces and the defence of Canada flows from the Crown.[12]

Natynczyk also stated that “Parliament” has made the CDS “responsible for the welfare of military families.” The Crown-in-Parliament deals with the Canadian Armed Forces only in the National Defence Act; Cabinet determines all policy for both DND and CF, through whitepapers and documents like the Canada-First Defence Strategy. Part I of the Act established the Department of National Defence (DND), the individual responsibility of the Minister of the Crown for National Defence for both DND and the CF, as well as the positions of the Deputy Minister and the Judge Advocate General. Part II established the Canadian Forces, including the position of the CDS. The Act makes no mention of “military families” and certainly does not charge the CDS for the well-being of military families. Therefore, Parliament never granted the CDS such authority.

The Harper Government Has Been Too Deferential To Parliament!

Canadian pundits often perpetuate this perception of Stephen Harper as the brilliant strategist. If anything, Harper and his political staff are good tacticians, but not necessarily good strategists: they normally apply short-term political pressure to the opposition parties (particularly the Liberals under Dion and Ignatieff) effectively, but sometimes at the expense of the Government’s long-term interest. On 22 November 2010, the Conservatives so succeeded in embarrassing the Liberals and shirking their ministerial responsibility that they managed to persuade the media to put the onus on Ignatieff, who initially considered a parliamentary vote on extending Canada’s participation in ISAF unnecessary (which it is) in order to avoid the embarassment of exposing the divisions within the Liberal ranks.[1] The Government controls the legislative agenda and would organize such votes, not the Official Opposition! Some PhDs in defence and security studies praised the Harper government’s approach. Professor Bob Bergen called parliament’s approval of Canada’s participation in ISAF “a democratic triumph”.[2] He criticized parliament’s “marginal role” in the deployment of troops abroad. In reality, the only role that Parliament should adopt with respect to the deployment of troops abroad is passing supply in the form of the budget and main estimates. David Bercuson criticized the Harper government for reverting the proper procedure whereby Cabinet determines defence policy:

Simply put, the excellent precedent that Prime Minister Stephen Harper established in 2006, and reiterated in 2008, is now being undone by he himself. But the Prime Minister isn’t alone in turning the clock back on troop deployment. The Liberal Opposition is going along right with him.[3]

In effect, the Harper government has “laundered” the Crown prerogative on defence and troop deployments through the House of Commons (not even the Crown-in-Parliament as a whole) in order to deflect public scrutiny and attention after from its own collective ministerial responsibility.[4] Responsible government means that Ministers of the Crown, led by the Prime Minister, take responsibility for acts of the Crown prerogative (policies and expenditure) and are responsible to the House of Commons.[5] These Crown prerogatives must necessarily include defence and the Armed Forces because waging war costs money – supply that the House of Commons must approve in the budget and main estimates. By outsourcing its Crown prerogative on defence, the Harper government has in fact undermined responsible government and given itself a form of plausible deniability: now whenever the House of Commons, the public, or the media criticize the role of the CF in Afghanistan, the Harper government can shirk its collective ministerial responsibility and place it on the House of Commons. The Harper government might reply, “The people’s representatives in the House of Commons voted to approve the extension of Canada’s involvement in the Afghan campaign, and the government merely followed Parliament’s will.” The House of Commons has become an eager and enthusiastic participant in its own demise. Cabinet governs; parliament grants (or not) supply. The Harper government, however, has unwittingly contributed to the formation of a new public perception of Parliament as a governing body and thus may have inadvertently restricted the conventional scope of Crown prerogative.

Conclusion: “Contrived Conventions” Threaten Responsible Government

“Constitutional conventions are unwritten, politically enforceable norms. These norms evolve from practices and customs that complement and contextualize laws or the written constitution.”[13] In this case, a “contrived convention” refers to a normative, or paradoxically, a statutory, constraint on Crown prerogative, when only a constitutional amendment would legally and truly restrict or narrow its scope of that prerogative power. The “contrived convention” therefore conflates an artificial or virtual constraint with a true legal limitation. The standard conventions arise in order to reinforce and protect the larger constitutional principle of responsible government, and its main corollary, the confidence convention.[14] I explained in full in the previous post why these Crown prerogatives properly belong to the Crown under our system of responsible government. In contrast, these “contrived conventions” threaten and undermine responsible government by breaking the link between the Cabinet, policy, and expenditure (as in this case of the prerogative on defence), or by imposing written rules that contradict the well-establish conventional constitution. This inherent conflict causes confusion and destabilizes the constitutional system.

I explored this notion in my earlier posts on the Canadian approach to fixed elections and the Senate Reform Bill. All the federal and provincial fixed-elections laws contain a provision to the effect that “Nothing in this Act affects the Governor General’s [or Lieutenant-Governor’s] power to dissolve Parliament”, because only an amendment following section 41 (a) of the Constitution Act, 1982 (“office of the governor general and lieutenant governor”) could narrow the scope of Crown prerogatives on prorogation and dissolution in law. The federal and provincial legislation therefore adopt this curious paradox of imposing a conventional (i.e., normative) limitation on the Crown prerogative of dissolution in statute, when normally conventions (i.e., norms) arise over time through best practices, and when only a constitutional amendment could truly limit this power in law. Similarly, the Senate Reform Bill would also impose by legislation a conventional restriction on the Prime Minister’s prerogative to nominate Senators. By a well-established and proper convention, the Governor General acts upon and in accordance with the Prime Minister’s advice and formally appoints the Prime Minister’s nominees. The Senate Reform Bill would stipulate that the Prime Minister “must consider” the results of the provinces’ senatorial advisory elections. The phrase “must consider” codifies the idea that the prime minister will voluntarily restrain his crown prerogative of advising the governor general to appoint only the winners of the provincial senatorial elections; however, it does not codify any substantial constitutional limitation on crown prerogative. “Must consider” does not mean “must nominate.” Only an amendment, using the general formula, to Section 24 of the Constitution Act, 1867 could formally limit in law the Crown prerogative of senatorial appointment. Aucoin, Jarvis, and Turnbull also criticized the fixed-elections laws and any other law as inherently flawed because they rely “the good faith of the prime minister” rather than one true legal limitations on Crown prerogative.[15]

The Harper government has set the perilous precedent that the House of Commons now approves troop deployments (i.e., expenditure); however, because the Harper government and the House of Commons agreed in all the votes on extending Canada’s participation in NATO’s ISAF in Afghanistan, these precedents did not directly reveal their long-term consequences. In the future, two scenarios could occur, more likely in a minority parliament, that would threaten responsible government: first, the Cabinet wants to despatch troops or go to war, and the House of Commons votes otherwise and then introduces a motion of non-confidence; second, and more ominously, the House of Commons could vote to go to despatch troops or go to war against the policy of Cabinet. The second scenario could then involve the intervention of a CDS like General Natynczyk, who confuses Parliament and the Government, and the total breakdown of the lines of authority between the Chief of Defence Staff, Minister of Defence, and Prime Minister. Lagassé argues that “a severe defence failure could cost the cabinet the confidence of the House of Commons.”[16]

The tactic of making troop deployments subject to the approval of the House of Commons embarrassed the Liberals by exposing the fissures within that party, and thus helped the Conservatives in the short-term. In the long term, Parliament could very well invoke these perilous precedents in order to bring down minority governments and fundamentally alter the conventions of responsible government. Responsible government means that the Ministers of the Crown are collectively and individually responsible for acts of the Crown and responsible to the House of Commons. The Cabinet is responsible for all policy and expenditure, and the House grants supply. If the House refuses supply, then it has automatically withdrawn its confidence in Cabinet; the prime minister must either resign on behalf of his Cabinet or advise the Governor General to dissolve parliament and issue the writs of election. Troop deployments and military operations of any kind – whether disaster relief, peacekeeping, or combat missions – always and necessarily entail expenditure; therefore, the Cabinet must approve of such operations involving the Canadian Armed Forces and make all decisions relating to defence policy. Defence is undoubtedly a Crown prerogative and so it should remain.

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[1] CTV News, “Igantieff Now Open to House Vote on Afghan Mission”, 22 November 2010.
[2]
Bob Bergen, “Vote on Afghan Mission a Democratic Triumph,” monthly column for the Canadian Defence and Foreign Affairs Institute, 19 May 2006.
[3]
David Bercuson, “Canada and the Extension of the Afghan Mission,” blog entry for the Canadian Defence and Foreign Affairs Institute, 23 November 2010.
[4]
Philippe Lagassé, “Should the Commons Vote on Deploying the Forces?” Globe and Mail (24 November 2010). http://www.theglobeandmail.com/news/opinions/opinion/should-the-commons-vote-on-deploying-the-forces/article1810788/ [Accessed 22 February 2012]; Philippe Lagassé, Opening Statement on Maintaining Readiness in the Canadian Forces, House Standing Committee on National Defence, 16 February 2012.
[5]
Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102.
[6]
Philippe Lagassé, “Accountability for National Defence: Ministerial Responsibility, Military Command, and Parliamentary Oversight,” IRPP Study no. 4 (March 2010): 44.
[7]
Ibid., 45.
[8]
Ibid., 40.
[9]
Ibid.
[10]
Ibid.
[11]
Chief of Defence Staff General Walter Natynczyk, Keynote Address to the Conference of Defence Associations, Ottawa, Ontario, 24 February 2012.
[12]
Ibid., 44.
[13]
James W.J. Bowden and Nicholas A. MacDonald, “Writing the Unwritten: The Officialization of Constitutional Conventions in Canada, the United Kingdom, New Zealand, and Australia,” Journal of Parliamentary and Political Law 6 no. 2 (2011): forthcoming.
[14]
Ibid.
[15]
Peter Aucoin, Mark Jarvis, and Lori Turnbull, Democratizing the Constitution: Reforming Responsible Government (Toronto: Edmund Montgomery Publishing, 2011).
[16]
Philippe Lagassé, “Accountability for National Defence: Ministerial Responsibility, Military Command, and Parliamentary Oversight,” IRPP Study no. 4 (March 2010): 40.

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15 Responses to The Demise of Responsible Government and the Crown Prerogative on Defence

  1. Pingback: The Prime Minister Does Not “Represent All Canadians” – the House of Commons Does | James W.J. Bowden's Blog

  2. Hugh Hardy says:

    I can see that there is a forest for the trees problem here. We need to stand up and limit the power of outside interest in the Office of the P.M.

  3. Hugh Hardy says:

    I have a lot to say about what we now call responsible government and the way it needs to be in order to get people like me and now more than half of eligible voters who know that they have no say in the way the country is run to vote. It isn’t all apathy and someday it is going to be an anger that tears this country apart. We need a new party with no leader as such. A party which believes that the leaders must be elected in parliament and not at outside conventions responsible to their caucus, party leaders should not be able to parachute candidates nor should parties who are not in any way responsible to the electorate. A new party that believes in no interference from the top with constituency nominations. A party that believes that our Lobbyists should be our members of parliament and no-one else. A party that fills in the giant hole in the conflict of interest law, that allows politicians to reap the rewards of favoritism after they are no longer in office. If such a Party were formed it would represent the 99% instead of the 1% as it sits now. Once again as history repeats itself the power and money hungry people are taking what belongs to us all and doing it “Legally”. The Laws that have been passed in the last 50 years of responsible to just who?government have made food banks an everyday thing, homelessness common, and led people to believe that nothing can be done about it. I can list tragedies of business in Canada and make them understood as legal theft for hours and I don’t think that the average average person know that basic changes in internal responsibility in our government have allowed this to happen. I looked up this blogg wondering what or if anyone has had anything like this to say and found that the worst thing happening in this Country has no-one articulating it

    • Is this some kind of #Occupy manifesto?

      • Hugh Hardy says:

        No it is not but if it was at least it is coherent however it would only apply to British commonwealth countries where greed and power have made powerful oligarchies out of the finest form of government ever come up with. The republican forms have always been deeply flawed in some areas but we didn’t write the spirit of our government into the constitutions and we are headed for the Zimbabwa style of government as a result.

        • Hugh Hardy says:

          Would you like to create a debate around this subject. And I mean the Idea of a manifesto for a party called the RESPONSIBLE GOVERNMENT PARTY OF CANADA. I have a lot of suggestions about the kind of legislation such a government could put forward as I have been watching the general trend all my life.

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  5. Pingback: The Macdonald-Laurier Institute’s Debate on Prime Ministerial Power: Andrew Coyne vs. Sheila Copps | By James W.J. Bowden

  6. Pingback: The Prime Minister Does Not “Represent All Canadians” – the House of Commons Does | By James W.J. Bowden

  7. Pingback: The Civil Service, Not the “Public” Service | By James W.J. Bowden

  8. B. Thomas Hall says:

    I agree with you that it’s vital for military officers to understand that they serve the Crown and that the government (PM and ministers) express the will of the Crown. The military does not report to Parliament, the Minister of Defence does. That said, I think that Prof. Philippe Lagassé exagerates the implications of consulting the House of Commons before engaging our military in operations that are not directly related to the immediate defence of the country. True, the Commons has to vote supply for any military operation, but our supply process is so defective that to argue that that is the only proper way to express support or disagreement with a military operation is just not realistic in today’s world. You may want to read Forsey’s essay entitled “Parliament’s Power to Advise” (reprinted in Freedom and Order, 1974). Surely if the Commons can advise the government on the exercise of a royal prerogative, as Forsey argues (and I agree), then the government can consult (via a non-binding resolution) the Commons on the same issue. Note too that the Commons would advise the government, at the initiative of the Opposition, by means of a Supply Day debate (a.k.a. an Opposition Day motion), thus tying the knot with the supply process. Understanding the royal prerogative and responsible government requires also understanding the political dynamics of Parliamentary processes.

    • You’ve stumbled upon the most ambiguous and dangerous principle that will almost invariably lead to a change of convention: the “consultation” of Parliament. What happens in Cabinet and the Parliament disagree? Would the government “consult” Parliament and still go against the advice of Parliament? If so, what would be the consequences?

      If we want to change these conventions that the Governor-in-Council exercises the Crown prerogative on defence, we must be fully cognizant of the foreseeable consequences. But from what I’ve heard from the proponents of parliamentary votes (like Steven Staples and David Bercuson, etc.), these proponents are ignorant of the consequences of their preferred option.

  9. Have you read the UK HofC Political and Constitutional Reform Committee’s report on Parliament’s Role in Conflict Decisions? There are also two Government responses to the report, here and here.

    • Thanks. I found the committee’s most recent report interesting: “The Government needs to honour the Foreign Secretary’s undertaking to the House to “enshrine in law for the future the necessity of consulting Parliament on military action”, and to do so before the end of the current Parliament. In the absence of any other timetable, this is the one to which we will hold them.”

      If this recommendation were implemented, then the government would need to “consult” parliament, but “consulting parliament” doesn’t mean “obtaining the consent of” parliament. In that case, then what’s the point?

      In its response, the Government committed itself to abiding by the “convention” that the government consults parliament but doesn’t seem too keen on codifying it into law. But the implications that I identified still apply: what happens in the House of Commons votes to despatch troops, but Cabinet objects? Or vice versa? Does this manner of disagreement amount to a loss of confidence?

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

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