Introduction

On 10 May 2012, the Macdonald-Laurier Institute held a debate on “Power Corrupts Canadian Prime Minister”, the fourth instalment of its History Wars series. Theoretically, Andrew Coyne argued in favour of the resolution and therefore against prime ministerial power, while Sheila Copps defended the Prime Minister’s exercise of Crown-in-Council prerogative and the office’s powers within our system of Responsible Government. However, the debate proved a monumental disappointment overall: Andrew Coyne demogogued his way through several factual errors, contradictions, and precarious propositions and demonstrated a fundamental misapprehension toward the Westminster system, summed up in his assertion that we must “impose checks and balances”; and Sheila Copps embarked on a series of tangential legacy-reinforcing anecdotes, pointless politician’s platitudes (they never lose that skill, even after having been out of office for a decade!), and made some ill-conceived suggestions for reform. I had set some wholly unrealistic expectations that the participants would engage in an informed and insightful discussion on the Prime Minister’s Crown-in-Council prerogatives – and I received demagoguery, platitudes, and assertions.

As in the previous debate on whether Canada should continue as a constitutional monarchy, J.L. Granastein asked the audience before and after the debate to indicate whether they agreed with, disagreed with, or were undecided on the resolution “power corrupts Canadian prime ministers.” I find the formulation of this question imprecise, ambiguous, and almost meaningless; apt wording would have acknowledged the normative nature of the argument: “Should the Prime Minister possess and exercise less power?” (A question such as “Does the Prime Minister have too much power?” contains a latent normative element). First, one would have to define “corruption” relative to the political-constitutional requirements of the office and the comportment of the individual. Second, one would need to demonstrate that the powers of the Office of Prime Minister inevitably lead to this corruption of the individual, because the resolution is worded as a universal proposition. Furthermore, one must differentiate between the Prime Minister’s power and coercion over Cabinet on the one hand, and over the parliamentary caucus and party on the other. I will elaborate on this distinction in the conclusion.

The imprecision and ambiguity notwithstanding, I played along and voted “no” on both occasions because I have studied the evolution of Westminster parliamentarism and support the Prime Minister’s exercise of Crown-in-Council prerogatives.

The Debate Itself: Coyne vs Copps

 Coyne

Andrew Coyne argued that “Canadian Prime Ministers have amassed powers without limit” and that they are “more powerful” than first ministers elsewhere in the Commonwealth Realms. I consider this point debateable. Indeed, British constitutional historian Peter Hennessy argues that the “British Prime Minister is the most powerful chief executive in the Western world.”[1] He argued that while the Canadian Prime Minister possesses near absolute power, backbenchers constrain the British Prime Minister, coalition governments limit the power of European Prime Ministers, and the separation of powers impose constraints on the President of the United States. Coyne then asked rhetorically which elements of the political system could impose such constraints on the Prime Minister. He pontificated that the Governor General cannot, because the Prime Minister appoints him. In reality, the Queen appoints him on the advice of the Prime Minister. Further, Coyne demonstrated his misunderstanding of the upper chamber by insinuating that the Senate cannot check the Prime Minister because he nominates (and the Governor General appoints) Senators. In reality, the Senate acts primarily as a house of review; it normally suggests improvements upon, rather than rejecting outright, government legislation precisely because of its appointive nature. Finally, Coyne made the most absurd insinuation that judges do not check the Prime Minister because the Prime Minister also nominates them for appointment. Later in the debate, Copps rightly criticized this implicit repudiation of judicial independence – which Coyne shamelessly denied and attempted to obfuscate with ironic political skill.

Coyne then regurgitated the trite arguments of Peter Russell and Democratizing the Constitution. He made numerous factual errors and several debatable propositions that I have already debunked elsewhere on Parliamentum; indeed, it’s almost as if he read this blog and then took the opposite stance on every issue. Citing Peter Russell, he asserted that the Canadian political system has become a “presidential system without Congress” and that the Commons has become little more than an electoral college, in the sense that it only affirms the electorate rather than determining the government directly. Coyne complained that the Prime Minister possesses the power to determine what constitutes a matter of confidence, though much to my surprise, he did not mention Chretien’s curious play from 1998. He asserted that Prime Minister Harper “violated his own law” in 2008 when he advised the Governor General to dissolve the 39^th Parliament. I debunked this commonly propagated falsehood in “Fixed Elections: Why Harper Did Not ‘Break His Own Law’ in 2008” and “Fixed Elections in the Provinces: Analyses and Conclusions.” Coyne also asserted, incorrectly, that a Government “no longer possesses the power” to govern if it appears to have lost the confidence of the Commons (but has not in a formal vote in the chamber), or during the writ period. I refuted this claim in “Guidelines on the Caretaker Convention.” Coyne expressed “satisfaction with the classical Westminster system, as in the United Kingdom”, and more bizarrely, he added and “as in Australia and New Zealand.” First, that statement contradicts his decree to “impose checks and balances” on the system, including an elected upper chamber and the elimination of the Crown prerogatives on prorogation and dissolution because neither of those provisions form part of the classic Westminster system. Second, neither Australia nor New Zealand adhere to the classical British model! Australian parliamentarism, known colloquially as the “Washminster system” combines federalism and strong bicameralism (with a Senate elected by pure proportional representation within each State) and grafts them onto the classic Westminster model. And New Zealand has also deviated from the British norm substantively: New Zealand abolished its upper chamber in the 1950s and retained only a unicameral parliament, and in 1996 replaced single-member plurality with mixed-member proportional. In other words, every Commonwealth Realm has adapted the classic British model in order to suit its own needs. He concluded his opening statement: “we are no longer a fully functioning democracy” and that various Prime Ministers have “subverted institutions that are supposed to check their power.”

In his closing statement, Coyne drew from Democratizing the Constitution and asserted that we need to “impose checks and balances” on the Canadian constitution by reforming the Senate into an elective chamber, by eliminating the Crown prerogatives on prorogation and dissolution, and by empowering Parliament to approve judicial appointments (presumably as the American Senate does). Coyne also argued that we should revert to the tradition whereby caucus alone elects leader (which I would support) because allowing the party membership to elect the party leader “gives the leader a mandate to ignore caucus.” He also advocated a “restoration of local democracy” and the elimination of the party leader’s veto over nominations of candidates.

Copps

Where Coyne pontificated and pandered to the audience with the political skill of Newt Gingrich, Copps stumbled into her opening statement and offered either tangential or totally unrelated anecdote and platitude. Turning her attention to the corporate world and other “spheres of endeavour”, Copps asserted: “Corruption is not restricted to politicians” and that “collective disdain for the ruling class is not uniquely Canadian.” Both of those statements are probably true – and definitely irrelevant to the resolution. After the first exchange between the two, Copps then made several absurd assertions on Responsible Government, though in contrast to her opening statement, they at least pertained to the main topic.

Copps suggested that the neutrality of the civil service serve as an example of the “separation of powers.” That a former Minister of the Crown would make such a fundamental error does not bode well for Canadian government. For a full explanation as to the sheer nonsense of these assertions, please read “The Demise of Responsible Government and the Crown Prerogative on Defence.” The civil service serves Cabinet under the Crown – not Parliament, and not the people – and it most certainly does not fall under the separation of powers, which in fact refers to the distinction between the legislature as the law-making power and Cabinet as the executive power. Copps also asserted that parliamentary committees should be able to initiate legislation independent of the Crown. She made the same assertion at the Canadian Study of Parliament Group’s Fall Seminar in October 2010.[2] At that event, I had asked her to elaborate on her suggestion , which would clearly threaten the basic principle of Responsible Government that Ministers of the Crown must take responsibility for all acts of the Crown, but she refused to provide a cogent response and instead gave a “politician’s answer” of five minutes that by-passed the substance of my question entirely. I presumed that she would similarly decline to answer my question this time as well, so I did not bother asking it. As with her previous idea, I found her misconceptions of Westminster parliamentarism intensely troubling, because she served as both a Member and a Minister of the Crown.

Conclusion: We Must Distinguish Between the Prime Minister’s Power Over Cabinet and Over Caucus – It Makes All the Difference

Having established the banal imprecision of the resolution that “Power corrupts Canadian prime ministers,” I will now highlight the crucial distinction between the Prime Minister’s power over Cabinet and over the parliamentary caucus, which both Andrew Coyne and Sheila Copps ignored. Andrew Coyne may well be entirely ignorant of this distinction, but given that Sheila Copps served as a Member and a Minister of the Crown for many years, she at least implicitly understand it, even if she refused to acknowledge it during the event. If I were organizing such a debate, I would also reformulate the resolution into its implicit question: “Does the Prime Minister possess too much power? If so, should he exercise less, and how should it be limited?” I would explain how evolution of Westminster parliamentarism accounts for the Prime Minister’s powers, to which I would add the specific Canadian experience, about which I wrote in “The Origins of the Prime Minister’s Centralization of Crown-in-Council Prerogative”. Finally, I would differentiate clearly between the Prime Minister’s power and influence over Cabinet through the exercise of Crown prerogatives on the one hand, and the Prime Minister’s and Cabinet’s power over the parliamentary caucus and the Commons on the other. I defend the Prime Minister’s control over the executive, but I disagree with such control over the legislature.

I explained why the Crown prerogatives on the summoning, prorogation, and dissolution of Parliament properly belong with the Prime Minister in The True Nature of Crown Prerogative and Responsible Government and in “Neither the Queen Nor the Governor General May Not Dissolve Parliament Unilaterally.” The Prime Minister or Cabinet as a whole also influence Parliament through the confidence convention. Under the core principles of responsible government, money bills are and must always be matters of confidence, and Cabinet as a whole must take responsibility for all of the Crown’s spending. In addition to this obligatory arrangement, the government may declare any of its bills matters of confidence. This is the power to which certain reformers object; where they cry “abuse!”, I simply political brinksmanship and tactics geared toward the strategy of the government’s survival and continuing capacity to command the confidence of the Commons. Contrary to the current anti-Harper political activism that often masquerades as legitimate constitutional scholarship, the Harper government in the minority 39^th and 40^th Parliaments did not set a new standard of “abuse” through its tactical declaration of all government bills as matters of confidence. The Harper government did not apply this tactic primarily in order to force its members to toe the party line, since they would surely would have done anyway within a minority parliament.  Harper implemented this tactic legitimately as classic brinksmanship: either at least one opposition would abstain or support the government, or the government would loss the confidence of the Commons, and Harper would therefore advise dissolution. (The proposed coalition of 2008 has since defenestrated this calculus, as well as the Canadian norm).

Plus ça change, plus c’est pareil.

David Docherty documented one particularly bizarre application of the Crown prerogative to declare a measure before Parliament a matter of confidence. If you take seriously some of the critics of the Harper government (such as the histrionic and hyperbolic Errol Mendes), you would think that Harper has most coerced and run roughshod over the parliamentary caucus. This perception would, however, contradict the record of the Chretien government. In perhaps the most brazen act of prime ministerial coercion over the parliamentary caucus (the backbenchers who do not form part of the government), Prime Minister Chretien in 1998 forced Liberal backbenchers, under the threat of expulsion from caucus, to vote against the Opposition Reform Party’s non-binding and symbolic motion that the Government compensate all victims of the Tainted Blood Scandal.[3] Intrinsically, a non-binding motion to the effect that the Government should compensate a greater number of victims of tainted blood does not pose any threat to the Government and its ability to command the confidence of the Commons – particularly in a majority Parliament. Chretien coerced the Liberal backbenchers into voting against a mere motion in order to maintain the veneer of unity and decisiveness that all party leaders seek.[4] Chretien sowed the seeds of his own demise and eventual ousting. In the 37^th Parliament (2000-2004), the Liberals increased their majority, and the Liberal backbenchers grew more restless. In November 2002, the Canadian Alliance, then the Official Opposition, moved a motion that called for the election of committee chairs by secret ballot – and 56 Liberal backbenchers voted with the Official Opposition.[5]

John Reynolds of the Canadian Alliance led the charge on a supply day against the Chretien government.[6]

On 1 November 2002, Ken Epp (then with the Canadian Alliance) criticized Prime Minister Chretien as an autocrat and a tyrant, and predicted that the recently Paul Martin would become the leader of the Liberal Party and therefore, at the time, Prime Minister:

Mr. Ken Epp (Elk Island, Canadian Alliance): Mr. Speaker, yesterday we saw an amazing spectacle in the House. In a desperate attempt to hang on to every vestige of power, the Prime Minister, the government House leader and the whip pulled all the strings they could to prevent MPs from actually being able to select the chairs and vice-chairs of committees.

It is widely expected that one of the backbenchers may become prime minister. Is it the Prime Minister’s view that when a backbencher morphs into prime minister, he magically attains supreme wisdom, to know all things, with exclusive knowledge of who would be the best chair?[7]

Any Liberal or New Democratic Member of the 39^th or 40^th Parliaments would have levelled precisely the same accusation against Prime Minister Harper.

Solutions to Prime Ministerial Control Over Caucus

I argue that Members of Parliament need to assert their power vis-à-vis the Crown more frequently in order to reaffirm the role of the Commons within our system of responsible government. I would support some reforms, such as the abolition of the party leader’s power to veto the nominations of candidates, as well as the adoption of the triple-line whip, which Jarvis and Turnbull recommended in Democratizing the Constitution in one of their brief lapses into lucidity. On votes of confidence, both the cabinet and backbenchers must toe the party line; on matters where the government has not declared a position, all members may exercise a free vote; and on government policy that does not involve spending, Ministers of the Crown must maintain collective ministerial responsibility while backbenchers can vote freely.[8]

However, I reject the notion that Parliament should eliminate the Crown prerogatives on the summoning, prorogation, and dissolution of parliament through an amendment to the Constitution. I also reject the adoption of “constructive non-confidence.” Under this system, the legislature could only withdraw its confidence from the government through a “constructive vote of non-confidence”, which proposes that the same parliament support a new government instead of allowing the first minster to advise the dissolution of the legislature.[9] It would follow the formula, “That this House has lost confidence in the current government and is of the opinion that a viable alternative government can be formed within the present House of Commons.”[10] This procedure of constructive non-confidence would only work if the legislative assembly could dissolve itself by an act of parliament, as the British Parliament now can through the Fixed-Term Parliaments Act, 2011. However, as the fixed-elections legislation of every other province and of Canada have shown, only a constitutional amendment to s. 41 (a) of the Constitution Act, 1982 could truly eliminate the Crown prerogative on dissolution and vest it in the Crown-in-Parliament, as the British legislation has done.

I Volunteer Myself for A Real Debate on the Prime Minister’s Powers!

At least two of the chapters in my thesis will cover this evolution of Crown prerogative of the Prime Minister throughout Westminster parliamentarism, so I will direct readers to The Making of a Constitutional Monarch: The Powers of the Crown Under Responsible Government after its finalization and publication. In the meantime, if the Macdonald-Laurier Institute ever wants to hold a more serious and academic debate on the subject of the Prime Minister’s powers, I would gladly take on the role of the shameless defender of prime ministerial prerogative.

Similar Posts:

• The Macdonald-Laurier Institute’s Debate on the Crown: John Fraser v Michael Bliss
• The Maple Crown and the Commonwealth Realms
• The True Nature of Crown Prerogative and Responsible Government
• The Demise of Responsible Government and the Crown Prerogative on Defence
• The Origins of the Prime Minister’s Centralization of Crown-in-Council Prerogative
• Neither the Queen Nor the Governor General May Not Dissolve Parliament Unilaterally
• Prorogation As Prime Ministerial Delay Tactic: A Legitimate Parliamentary Tool, Not “Abuse” of Crown Prerogative
• Fixed Elections: Why Harper Did Not ‘Break His Own Law’ in 2008
• Fixed Elections in the Provinces: Analyses and Conclusions
• British Question Time Better Supports Parliament’s Core Function Than Canadian Question Period
• Crown prerogative