Commanding Confidence is a Binary Proposition: Either the Government Has It, Or It Does Not
R. Michael Warren (a former deputy minister in the civil service of Ontario and therefore former practitioner) argued that Primer McGuinty should have advised the Lieutenant Governor to prorogue the Legislative Assembly of Ontario in order to postpone a vote on confidence on the budget, if he could not gain the support of the New Democrats in time.” Contrary to some scholarly assertions that prorogation “avoids” a vote of confidence, it in fact postpones such votes of confidence until after the intersession and the start of the next session of the legislature. The New Democrats, led by Andrea Horwarth, ended up supporting the McGuinty Government’s budget, so the “abuse of power” (as the political activists characterize prorogation as delay tactic) did not come to pass. Bill 55, An Act to implement Budget measures and to enact and amend various Acts, received Royal Assent on 20 June 2012.
Writing on 18 June 2012, Warren argued that Premier McGuinty could either have advised dissolution or prorogation when his government faced an imminent loss of confidence in the Legislative Assembly. Warren has based his argument on the fact that once Government has demonstrated that it commands the confidence of the legislature (such as through the Address in Reply to the Speech from the Throne), the Government retains that confidence until the moment the legislature withdraws it in a subsequent formal vote in the chamber. The declarations of an individual Member or of a political party outside the chamber itself do not figure into this calculation, and anyone who argues the contrary (as many did in 2008) would threaten both the confidence convention and parliamentary privilege. An apparent loss of confidence outside the chamber does not constitute a true and valid loss of confidence in the chamber; individual Members or parties could vote differently in the chamber when they must formally confront the consequences of their decision – either dissolution and election or a change in government.
Horwath has put McGuinty in a difficult position. If she is successful in removing arbitration reform from the budget bill in committee, and it comes to the legislature Wednesday for a final vote, McGuinty has three options:
• He could accept the change and pass the bill with the support of the NDP.
• He could go to the Lieutenant-Governor and ask him to dissolve the [legislature], thus prompting a July election.
• He could ask the Lieutenant-Governor to prorogue the legislature until the fall.
None of these options is particularly attractive but Horwath’s partisan jockeying is forcing McGuinty to choose the least of these three evils.
Political Activism vs. Constitutional Scholarship
One scholar, annoyed with my suggestion that he cannot separate his partisan views from his constitutional assessments, sardonically retorted that I would better appreciate the blending of constitutional scholarship and political activism “when [I] get older.” Another anti-Harper activist angry about the Harper’s prorogation of 2008 called me a “Harper apologist” because I support the constitutionality of prime ministerial control over and responsibility for advice to prorogue parliament. Both accusations are, of course, total nonsense. A serious scholar (as opposed to a political activist) can — and indeed, must — separate his partisanship or ideology from his constitutional interpretations.
Like Warren, I would have supported the constitutionality and propriety of Premier McGuinty’s decision. If he had decided to exercise the prime ministerial prerogative on prorogation or dissolution, the Lieutenant Governor would have had no discretion to reject such advice under the circumstances of the 40th Legislative Assembly of Ontario. And I offer this constitutional assessment as someone who will not vote Liberal in the next provincial election because my support for prime ministerial control over the summoning, prorogation, and dissolution of parliament does not depend on the party or ideology of the government of the day.
- Prorogation as Prime Ministerial Delay Tactic: Legitimate Parliamentary Tool, Not “Abuse” of Power
- Peter Russell on the Prorogation-Coalition Controversy of 2008
- Dawson and Forsey Clash on the Prorogation of 2008
- The True Nature of Crown Prerogative and Responsible Government
- The State of the Academy After the Prorogation of 2008: Constitutional Scholarship or Political Activism?
 R. Michael Warren, “Ontario budget battle: McGuinty’s best option would be to prorogue the legislature,” Toronto Star, (Monday, 18 June 2012).