My Presentation on Fixed-Elections Laws at the Canadian Political Science Association


Legislative Assembly of British Columbia

Legislative Assembly of British Columbia

I am enjoying my stay in Victoria this week for the Canadian Political Science Association’s Annual Conference, though visiting British Columbia reminds me of how living in Alaska felt: like you’re permanently late and behind schedule, because everything important in North America occurs on Eastern Time! I would like to thank Michelle Hopkins and Francesca Scala for accepting my paper, Graham White for acting as the discussant for my panel, and my supervisor Phil Lagassé for supporting me immeasurably on my scholarly odyssey.

Abstract of My Paper on Fixed Elections

In Reining in the Crown’s Power on Dissolution: The Fixed-Term Parliaments Act of the United Kingdom versus the Fixed-Election Laws in Canada, I analyzed the key differences between the powers of the British Crown versus those of the Crown of Canada in order to compare and contrast the fixed-elections laws in Canada (at the federal and provincial levels) with the Fixed-Term Parliaments Act, 2011 of the United Kingdom.  The United Kingdom operates on parliamentary supremacy and an uncodified constitution, and the powers of the British Crown come either from statute or prerogative. The British Parliament can therefore invoke its sovereign right to limit or put into abeyance any prerogative power of the British Crown at will. In contrast, Canada has always operated on a system of constitutional supremacy. Currently, the powers of the Crown of Canada derive from three sources: the provisions of the Constitution Act. 1867, the constitutionalized powers entrenched under the Constitution Act, 1982, and statute. The first two types of powers enjoy the protection from statutory encroachment under the unanimity formula of the Constitution Act, 1982. This is precisely why the Canadian fixed-elections laws have deliberately preserved the Crown’s power of dissolution and the Prime Minister’s (or Premier’s) power to advise and receive early dissolution, in constrast to the Fixed-Term Parliaments Act, 2011, which put the prerogative of dissolution of the British Crown into abeyance, removed the Queen and Prime Minister from dissolution, and thus truly eliminates the possibility of “snap elections.” Finally, Canadian jurists and scholars have long misapplied the British concept of “prerogative” powers to the Constitution of Canada, that the power of dissolution is not a “prerogative” in Canada, if “prerogative” refers to a power that the common law has recognized as belonging to the Crown, and that only a proper constitutional amendment under section 41(a) of the Constitution Act, 1982 could eliminate the Crown’s power on dissolution (at either the federal level or in a province) as the Fixed-Term Parliaments Act, 2011 has put the prerogative of dissolution into abeyance in the United Kingdom.

Discussion

I presented alongside the distinguished Peter Russell, Professor Emeritus of Political Science at the University of Toronto, who wrote on cabinet manuals and constitutional conventions, and the criminologist Johannes Wheeldon, who studied scholarly views of the prorogation of 2008.

If anything, this panel highlighted the ongoing disagreement between scholars on the powers of the Crown and the constitutional positions of the Governor General and Prime Minister under Responsible Government – which will always remain and which always should remain. The discussion touched on two other topics about which I have written but on which I did not present: the Governor’s discretionary authority and the exceptional circumstances under which the Governor could reject a First Minister’s advice to dissolve the legislature and the Manual of Official Procedure of the Government of Canada.

The Manual of Official Procedure of the Government of Canada

Peter promoted the British Cabinet Manual and the New Zealand Cabinet Manual as ideal models for the officialization of constitutional conventions in Canada, though I think that he uses the term “consolidation” instead, based on his article in last August’s issue of the Journal of Parliamentary and Political Law. (Nick MacDonald and I also wrote an article on constitutional conventions and cabinet manuals that appeared in the same issue). I agree with Peter on the main issues: that cabinet manuals do not “codify” conventions – they create an official but politically enforceable interpretation of convention – and that the New Zealand Cabinet Manual and the British Cabinet Manual are generally good and helpful. Peter did not discuss it in his main presentation, though he did acknowledge it in the discussion after Phil inquired about it.

Peter has criticized the Manual of Official Procedure of the Government of Canada because of its length and bulk; he acknowledged that it contains useful information on constitutional conventions, prorogation, dissolution, and the formation of governments, but criticized it for also including procedural minutia relating to matters such as state funerals and ambassadors. I then interjected and asked the audience rhetorically, “Would you dismiss a dictionary as irrelevant and too bulky because it contained 1000 pages?” Of course, you wouldn’t. You’d treat the bulky dictionary as a reference and thus look up the definitions that you need at any given time and move on. You would never question the utility of the dictionary because of length! Peter then criticized the Manual as inaccessible – to which I replied that one can download it from this website. That said, I do agree with Peter’s point that it would have been preferable if the Privy Council Office had uploaded the Manual to its website. I suspect that PCO has not done so because some sections of the Manual are out of date.

I hope that PCO does update the Manual into a second edition. Perhaps PCO could make use of an enterprising young man to undertake such a project!

“The Glory of Responsible Government”

Phil Lagassé asked Johannes Wheeldon why he had not acknowledged the true nature of Responsible Government in his analysis of the constitutional positions of the Governor General and Prime Minister on prorogation. Curiously, Wheeldon seemed to dismiss the history of the scholarship on Responsible Government as irrelevant to the Prorogation-Coalition Controversy of 2008 and made clear that since none of the scholars whom he surveyed brought up this issue, he did not much care about it. Phil then pointed out that Wheeldon had never asked or alluded to the question in his survey and therefore should not have expected any of his respondents to mention it to him!

If I had the time to interject, I would have explained this concept properly. (I should have taken the time to explain it in my presentation, but let’s just say that I’m a far better writer than a public speaker!) As Sir John George Bourinot and Alpheus Todd made clear in the 19th century (but apparently they don’t matter, because any precedent that occurred before 1900 is irrelevant), Responsible Government means that Ministers of the Crown take responsibility for all acts of the Crown; the Sovereign or Governor no longer take responsibility for these executive decisions and thus promulgates these acts of the Crown on and, apart from exceptional circumstances, in accordance with ministerial advice. The Prime Minister and Cabinet govern and rule, while the Sovereign reigns. The Sovereign or Governor could only reject ministerial advice under exceptional circumstances precisely because of the exceptional consequences of such regal or gubernatorial intervention: the Prime Minister (and thus the Ministry) must resign so that the Sovereign or Governor could appoint a new Prime Minister and Ministry prepared to take responsibility for that act of the Crown. In other words, if Governor General Michaelle Jean had rejected Prime Minister Harper’s advice to prorogue on 4 December 2008, Harper would have been obliged to resign, and Jean would then have commissioned Stephane Dion to form a Liberal-New Democratic coalition government. One does not require a PhD to discern these undeniable facts of Responsible Government, which the scholars of the 19th century fully understood.

Graham White mentioned that he used to regard “the glory of Responsible Government as its flexibility” but now agrees with the arguments that Aucoin, Jarvis, and Turnbull put forward in Democratizing the Constitution: Reforming Responsible Government – which he referred to as “the Good Book.” However, as for myself, I think that Democratizing the Constitution falls short of the Bible, though the former has still succeeded in galvanizing its converts. I would argue that the true “glory of Responsible Government” lies in its historic achievement of having successfully preserved the medieval doctrine of royal infallibility within a modern system of democratic accountability. Since Ministers of the Crown take responsibility for all acts of the Crown, the Sovereign can still do no wrong – only Ministers responsible to Parliament and to the people can. Responsible Government thus constitutionalizes monarchy. And that’s why a Sovereign or Governor forces the resignation of, or dismisses, a Ministry by refusing to act on ministerial advice: the Ministers must then resign in order to preserve the dignity of the Crown. But since no one in Wheeldon’s survey explained this concept to him, it must be irrelevant…

White’s Reading of Democratizing the Constitution

 White then read out a quote from Democratizing the Constitution – or “the Good Book, as he calls it – because he replaced one of that book’s co-authors, Mark Jarvis, as the discussant on this panel and felt obliged to “channel” him and his work into the discussion. Coincidentally, he read out the very same quote from the book whose meaning Mark and I had once debated: “Experts disagree on what the Canadian constitution means and thus render themselves collectively of no political consequence whatsoever.”[1] White affirmed that he agreed with this statement, but he noted that constitutional scholars have long debated the King-Byng Affair, which suggests that they will never agree. Interestingly, the authors made a similar statement elsewhere in the book: “Unfortunately, there is little reason for optimism, given that we have seemed content to allow the confusion and disagreement over the King-Byng Affair to fester for more than 85 years.”[2]

If I had had enough time, I would also have asked two questions based on what the first citation necessarily implies. First, why should scholars seek to make themselves politically significant? Perhaps they should form their own political party – except of course that those scholars who disagree would have to form an alternative party. They can if they want to do so, but they don’t have to do so. In addition, scholars do not need to agree with one another and form a united front in order to render themselves of political significance! Governments and parliamentarians consult scholars frequently. For instance, Governor General Jean consulted Peter Hogg, Peter Russell, and Ned Franks in December 2008 – and these scholars did not agree with one another. Second, why is the scholarly disagreement over these issues somehow undesirable or bad? Mark insists that I have misinterpreted the citation from page 150 by asking these corollaries, but the second citation from page x makes clear that the authors do indeed regard the scholarly disagreement as undesirable – or else they would not have used a word laden with a bad connotation like “fester,” which describes a gangrenous wound that will not heal and may lead to amputation. (And if that’s not what they meant, then they should have chosen their words more precisely). Scholars disagree because there are legitimate areas of disagreement and debate over the nature of executive power and the relationship between the executive and the legislature. Even since Robert Macgregor Dawson and Eugene Forsey took opposite views on the King-Byng Affair, subsequent scholars and generations of scholars have done the same – because anytime the Governor invokes his discretionary authority to reject a First Minister’s advice, he exercises judgement. And scholars can always analyze, debate, and disagree on a decision based on a political or constitutional decision because we live in a liberal democratic system and may exercise liberties of expression.

In my next entry, I’ll review today’s panel on executive power in Canada (featuring Nomi Lazar, Dennis Baker, Phil Lagassé, and Peter Russell) and highlight other areas where scholars disagree on the powers of the Crown. Scholars can and should disagree where the evidence warrants. That’s why we hold annual conferences of the Canadian Political Science Association! My field would become rather boring if constitutional scholars agreed on everything.

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[1] Peter Aucoin, Mark Javis, and Lori Turnbull, Democratizing the Constitution: Reforming Responsible Government (Toronto: Emond-Montgomery Publishing, 2011), 150.
[2] Peter Aucoin, Mark Javis, and Lori Turnbull, Democratizing the Constitution: Reforming Responsible Government (Toronto: Emond-Montgomery Publishing, 2011), x.

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6 Responses to My Presentation on Fixed-Elections Laws at the Canadian Political Science Association

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  6. B. Thomas Hall says:

    Two things I especially like about this piece: (1) You recognize that some prerogatives of the UK Crown are, for the Crown of Canada, in the Constitution Acts, 1867 and 1982, and not just in common law. (2) You emphasize the importance of Responsible Government in the 2008 prorogation question.

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

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