Reversal of “Republicanism by Stealth”

Posted on 2011/09/10 by J.W.J. Bowden

Australian constitutional scholar Peter Boyce in The Queen’s Other Realms: The Crown in Australia, Canada, and New Zealand argued that all three of these Commonwealth realms have faced since the 1960s a gradual de-monarchization, or republicanism by stealth. These measures focused mostly on removing the Crown and its symbols from the public sphere, such as by removing Her Majesty’s portrait from government buildings, or omitting references to the Head of State as the Queen of Australia, Canada, or New Zealand in favour of those countries’ Governors-General. In Canada’s case, this republicanism by stealth ostensibly worked for “national unity” (i.e., making Quebec happy). The Parliament of Canada at some point changed the official name of this country from The Dominion of Canada to just Canada, and in 1980, the Speaker allowed a small group of MPs to dispose of the historically significant “Dominion Day” and replace it with the pedestrian “Canada Day”, as if Canadians need their government to remind them of their country’s name.

The Commonwealth of Australia has fostered the most open republican movement, and sadly, the constitutional monarchist-republican divide has fallen largely about a right-left cleavage; the Leader of the Australian Labor Party and current Prime Minister Julia Gillard openly supports the abolition of the Crown of Australia after the death of Queen Elizabeth II, but the Liberal leader and Leader of Her Majesty’s Loyal Opposition Tony Abbot is a stanch monarchist and even led a monarchist organization in the 1990s. Australia even held a referendum on republicanism in 1999, which failed. Interesting, Peter Hogg mentioned at the Canadian Study of Parliament Group’s Annual Spring Conference in 2010 that because the six Australian states, unlike the ten Canadian provinces, enjoy a direct legal relationship with the sovereign, the Australian referendum would only have succeeded in eliminating the federal Crown but left the six state Crowns intact. When I point out the federal-provincial implications of abolishing the Crown (i.e, “What will become of the provincial Lieutenant Governors?”), most Canadian republicans dismiss such questions as minor details, even though most have in turn never even stopped to consider them!

I fully support the Harper government’s latest policies on bringing the Crown of Canada back into the public sphere, such as by restoring the Royal designations of the Royal Canadian Air Force and Royal Canadian Navy, or by reminding all embassies, high commissions, and consulates to display portraits of The Queen of Canada, our Head of State. These policies are part of the government’s crown prerogative and thus taken as Orders-in-Council rather than through Acts of Parliament; the republicanism by stealth and the Royal restorations both followed these kinds of procedures.

Many columnists, like Bob Hepburn, have criticized these recent decisions and characterized them as anachronistic and divisive. Stephen Maher called constitutional monarchy PM Harper’s “secret love”, in a slightly patronizing lament.

Dan Gardner lambasted “creeping republicanism” earlier this year in the column “Creeping Republicanism in Full Retreat” (which he wrote even before the Royal restorations of the Air Force and Navy) and concluded with this message:

“Important changes should never be driven by a manipulative few relying on the ignorance and apathy of the many. It is simply a fact that this nation is a constitutional monarchy whose head of state is Elizabeth II, Queen of Canada. Those who wish to change that should not deny it, distort it, paper it over, or cover it up. They should make their case. And those of us who think the monarchy is a great Canadian institution will make ours.”

Australian republicans have at least stated their intentions openly and honestly. It is time that Canadian republicans follow suit, instead of taking advantage of the apathy of their fellow Canadians. The Crown of Canada has served us well, and the onus rests with republicans to explain why we need to undertake revolutionary constitutional reform in order to abolish it.

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Posted in Monarchism v Republicanism | 3 Comments

Open Primaries in The Westminster System

Posted on 2011/08/31 by J.W.J. Bowden

In 2008, British Conservative MP Douglas Carswell and British Conservative MEP Daniel Hannan co-authored a veritable manifesto for direct democracy and wholescale renewal of the Conservative Party, called The Plan: Twelve Months to Renew Britain.  They represent what I would call a neo-Whiggish constituency within the British Conservative Party that since 2005 or so has advocated strongly in favour of localism and for significant parliamentary and political reforms that would secure their agenda. The Localist Papers (an apt allusion to the Federalist Papers) lay out a radical program of reform in order to strengthen parliament vis-a-vis the political executive (and civil service) by ensuring that parliamentarians answer first to their constituents and by formally abolishing Crown prerogative. I find the latter suggestion entirely too radical and ill-conceived because the abolition of Crown prerogative altogether would constitute the most significant constitutional overhaul – not merely reform – since the Glorious Revolution of 1688 and destroy the essence of the Crown-in-Parliament. I agree with some of the other reforms, however.

One of those reforms called for the adoption of “open primaries,” based on the American system, which would allow all registered electors in a given constituency to vote in the selection of each party’s candidate. The candidates standing in each party’s primary would need to be a member of their respective parties, however. The Plan describes neither the political process nor potential constitutional implications in any detail, but promotes open primaries as electoral dynamism, preventing stagnation and eliminating the safe seats, which they claim describe 70% of the seats in parliament today. Carswell introduced a Private Members’ Bill on 13 October 2009, the Parliamentary Elections (Recall and Primaries) Bill. As he explained to the House: “At 4 of the last 5 general elections, less than 1 in 10 parliamentary constituencies changed hands. The 5th was of course the Labour landslide of 1997, but even there, more than 70% of seats were held by the parties that already controlled them. In other words, most of us represent pocket boroughs. We have tenure. Our incentives are thus twisted: instead of answering outwards to the voters, MPs and safe seats are encouraged by the system to answer upwards to their whips.” Carswell’s bill did not reach Second Reading, so the website does not include the text of the bill itself.

An open primary has already occurred in the United Kingdom. Carswell mentioned that the Conservative Party held an open primary already in the constituency of Totnes in August 2009; his bill would have provided a framework for these primaries. The Independent described the primary: “After local Tories drew up a short-list of three potential candidates, ballot papers were sent to all 69,000 registered electors in Totnes. The Conservatives spent £38,000 on the primary – equivalent to £2.30 for every vote cast – but declared that the experiment in democracy had been a success in engaging the constituency’s electors.” Carswell added that 26% of registered electors of all parties participated in this primary, or 16,000 people.

I support open primaries in principle for the reasons that Carswell and Hannan enumerated: open primaries give all voters a choice, particularly in safe seats where currently the ruling party’s riding nomination effectively determines the next Member of Parliament, and they remind parliamentarians that they serve their constituents first. I had significant reservations with respect to the implications for responsible government until Douglas Carswell was kind enough to reply to my question via Twitter and direct me to his proposed legislation, which I had not examined until today.

The Parliamentary Elections Bill would have provided a framework for open primaries that parties could follow, based on the Conservative Party’s experiment in Totnes in August 2009, but it would not have forced primaries upon all parties and constituencies. Carswell  said: “Under my Bill, local people—supported by one or more parties—could petition their returning officer to organise a primary contest at the same time as a pre-existing local or European ballot. The primary election would be piggy-backed on to an election already due to take place. The returning officer would have to include an extra ballot paper with the names of those on the shortlist. Each party that chose to take part would have to pay the marginal additional cost for having its ballot paper included, but it would be a cost of hundreds not thousands of pounds.” This principle would be more difficult to apply in Canada, being a federation of 10 provinces, all of which could also apply open primaries to their provincial legislative assemblies!)

Carswell understands that open primaries in a Westminster system would necessarily differ from open primaries in the United States because of responsible government, particularly in the context of minority parliaments. Primaries would thus not become automatic, but instead would require support of the electors in a given constituency for a particular election. Based on his speech at First Reading, I can only conclude that the early dissolution of a minority parliament would effectively prevent the holding of open primaries. However, the Parliamentary Elections Bill would probably have encouraged the organic development of a new system whereby one party’s adoption of open primaries would persuade the other parties to follow suit. In turn, voters in any constituency could precipitate the holding of a primary. If the system were beneficial and functioned as planned, it would quickly catch on with voters. If not, it would remain a Conservative experiment in Totnes. So what does the UK have to lose?

This system would surely constitute a radical shift in Canada, where candidates are currently elected in “riding nominations”, which correspond loosely to the “closed primaries” in the United States, where only party members vote on the candidates. In an open primary, however, all registered voters could cast ballots for the candidate of one party, even if they have no intention of voting for that party in the general elections. The prospect of opening up the process to all electors surely seems frightening to many partisans, and critics would argue that this system, rife for abuse, could see rigged voting. These are valid concerns. Thought Undermined (an excellent blog on parliamentary issues) addressed these concerns well: essentially, in a safe riding where only party can win, an open primary would allow all voters to participate and ensure that their votes aren’t simply wasted in the general election on a candidate who has no chance of winning. And in a competitive swing riding (or “marginal constituency”, as our British friends would say) where two parties compete fiercely and either could reasonably win the general election, open primaries would help attract better candidates. Above all, electors seek a good MP, so if the other party that they don’t support could win in the general election, they wouldn’t rig the vote by selecting the weakest candidate from that other party; they would instead pick the stronger candidate precisely because he or she could win in the general election, and they wouldn’t want to saddle themselves with the burden of bad representation in Parliament. Given that a small and decreasing percentage of the Canadian population holds membership in political parties, the adoption of this system would re-enfranchise swaths of voters into a crucial part of the political process.

Where primaries in the United States function under the guarantee of biennial or quadrennial periodicity, if a parliament is dissolved early because the government losses the confidence of the House and no alternative government can be formed, then the parties probably wouldn’t be able to organize open primaries in time before the general election. We could of course proceed with the understanding that open primaries in our Westminster system cannot necessarily be held biennially or quadrennially like in the United States because of our system of responsible government, but parties could still organize open primaries before most elections. If the Parliament of the United Kingdom can accommodate such a system, then so too can all the other Westminster parliaments scattered across the earth. I hope that some Canadian political parties implement the idea as well, and thus eliminate this horrid practice of “parachuting” “star candidates” into safe seats simply so that they can take a seat in the House of Commons.

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Posted in Direct Democracy | 6 Comments

Prorogation As Prime Ministerial Delay Tactic: A Legitimate Parliamentary Tool, Not “Abuse” of Prerogative

Posted on 2011/08/29 by J.W.J. Bowden

UPDATE, July 2019: Please see this post on “Sir John Major’s Hypocrisy on Prorogation” for an in-depth explanation of how Major obtained a prorogation in 1997 in order to prevent Sir Gordon Downey from tabling his report into the Cash-for-Questions Scandal.

Jean Chretien, 2003

As Nick MacDonald and I explained in “No Discretion: On Prorogation and the Governor General”, prime ministers before Stephen Harper have used prorogation as a chiefly political and partisan delay tactic. Few Canadian academics have acknowledged that Prime Minister Jean Chretien also used prorogation as a delaying tactic at least once: in November 2003, probably because the use as delay tactic coincided with a thoroughly logical reason. PM Chretien advised prorogation, ostensibly in order to ease the transition between his government and the incoming Martin government, but this prorogation also delayed the tabling of Auditor General Shelia Fraser’s first report on what became known as the Sponsorship Scandal. Nelson Wiseman commented on that prorogation in “The Use, Misuse, and Abuse of Prorogation.” Despite any political consequences and the duration of the intersession, I fully support the constitutionality of Prime Minister Chretien’s advice; Governor General Clarkson had to accept it and issue the proclamation of prorogation.

John Major, 1997

British Prime Minister John Major may also have used prorogation as a tactic to delay the tabling of an inconvenient parliamentary report until after the general election of 1997. (In the United Kingdom, parliament is normally prorogued before being dissolved, but that intersession normally only lasts for one week at most). On 18 March 1997,  Liberal-Democrat MP Simon Hughes accused Prime Minister Major of abusing the crown prerogative on prorogation.

Mr. Hughes: The Prime Minister yesterday made the uniquely personal decision not only to have a general election on 1 May and to dissolve Parliament on 8 April but that Parliament should be prorogued and sent away this Friday. [Interruption.] Is it not obvious that one of the reasons for that decision and for the unprecedented gap between prorogation and dissolution is that[…] the Prime Minister knows that the report of the Parliamentary Commissioner for Standards on cash for questions will be ready on Monday or Tuesday. That report will therefore not be seen by hon. Members in this Parliament and will be hidden until after the general election.

In a wit that so characterizes all successful British parliamentarians (as opposed to our puerile parliamentarians), the Prime Minister took advantage of Speaker Boothroyd’s intervention and all the several minutes of commotion that resulted from Hughes’s question and artfully dodged it:

The Prime Minister: One of the reasons for making the announcement on Monday and arranging for Parliament to be prorogued on Friday was to give the hon. Gentleman time to finish his question. As for Sir Gordon’s report, I have no knowledge when it will be presented.

The Independent also considered the timing of Major’s prorogation as suspicious and cited one of Gordon Brown’s statements:

But Gordon Brown, the shadow Chancellor, said the Prime Minister could adjourn Parliament, putting it into recess, instead of insisting on prorogation – which would allow the Committee to order publication of Sir Gordon’s report. The timing of the election, would not be affected because there is still more than a fortnight to go before the dissolution.

Brown stated the principle correctly, and Major’s preference for prorogation over adjournment at least gives the perception of using prorogation as a delaying tactic – which is perfectly legitimate. In these parliamentary disputes, sometimes the Government gains the upper hand over the Commons, and sometimes the Commons gains the upper hand over the Government. In any event, Major’s final prorogation did not pose any constitutional problems and did not prevent Labour from winning by a landslide in 1997.

Posted in Crown (Powers and Office), Governor's Discretion, Prime Minister's Powers, Prorogation | 14 Comments

Her Majesty’s Loyal Opposition

Posted on 2011/08/27 by J.W.J. Bowden

I contend that the Bloc Quebecois should never have taken on the role or title of “Her Majesty’s Loyal Opposition” in the 35th Parliament simply because it became the second largest party with 54 seats, compared to the Reform Party’s 52. This is not an argument against the presence of the Bloc quebecois in parliament in general (they were duly elected representatives), but a rebuke of the parliamentary injustice that allowed such a party to become Her Majesty’s Loyal Opposition during the 35th Parliament. I base this argument on interpretations of both British and Canadian sources, because the Canadian tradition developed directly from its British tradition, and on the nature of convention itself. I refuse to elevate the custom that the party with the second largest number of seats becomes the Official Opposition to a constitutional convention. Certainly, the presence of an Official Opposition is a constitutional requirement and practical necessity in order that parliament effectively hold the government to account – but the presence of such a function is distinct from the determination of which party takes on the role. I will also examine Speaker Gilbert Parent’s ruling from 1996 (the second session of the 35th Parliament) on the status of the Official Opposition and point out some bizarre inconsistencies and mistakes therein.

The Origins of Her Majesty’s Loyal Opposition

Westminster Parliamentarism presumes the loyalty of the Leader of Her Majesty's Loyal Opposition. Without this understanding, the system disintegrates.

According to the Library of the House of Commons of the United Kingdom, the formal title of the Official Opposition, “Her Majesty’s Loyal Opposition”, emerged in 1826. Sir John Hobhouse remarked: “It is said to be hard on His Majesty’s Ministers to raise objections of this character but it is more hard on His Majesty’s Opposition to compel them to take this course.” The concept of Her Majesty’s Loyal Opposition, however, traces its roots back to the 18th century. Nevil Johnson explains in “Opposition in the British Political System”:

“what emerged was recognition of the right of politicians in Parliament to oppose the government, to criticize it and to seek to replace it, though as yet there was no overt questioning of the royal prerogative of actually choosing a chief minister and his colleagues.  In practice, however, royal discretion was even by 1784 severely limited by the need to turn to politicians capable of organizing support in Parliament.  By the early nineteenth century parliamentary politics clearly took precedence over direct involvement of the monarch in the day-to-day management of public affairs, and in 1826 there occurred the first recorded use of the term ‘His Majesty’s loyal Opposition’, a phrase that quickly caught on.  But it was the Tory opposition under Sir Robert Peel which in 1841 provided the first example of a party taking power after winning an election as the ‘alternative government’.”

Johnson characterized “the British conception of opposition as the institutionalization […] of a standing alternative to the government of the day” and argued that “Her Majesty’s ‘loyal Opposition’ has been institutionalized for the modern electorate as the standing possibility of an alternative government to replace the one in power.” Crucially, this role as “alternative government”, sometimes called “government in waiting”, applies whether the Her Majesty’s Loyal Opposition forms a new government in the same parliament, without an election, or when it wins the most seats in the next election and forms government in the new parliament. Her Majesty’s Loyal Opposition can therefore be characterized as a “potential government”.

Erskine May (the British equivalent of O’Brien and Bosc) describes Her Majesty’s Loyal Opposition as “the largest minority party which is prepared, in the event of the resignation of the government, to assume office.”

The Question of Convention and the Speaker’s Ruling

The Ministers of the Crown Act, 1937 finally recognised the constitutional status of Her Majesty’s Loyal Opposition and established the principle in the British House of Commons that the Speaker would decide which party would become Her Majesty’s Loyal Opposition. The Ministerial and Other Salaries Act, 1975 codifies the position of Leader of Her Majesty’s Loyal Opposition and the Speaker’s role in determining who holds that position, where necessary: “If any doubt arises as to which is or was at any material time the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons, or as to who is or was at any material time the leader in that House of such a party, the question shall be decided for the purposes of this Act by the Speaker of the House of Commons, and his decision, certified in writing under his hand, shall be final and conclusive.”

The Parliament of Canada recognized in statute the Leader of the Opposition in 1905, before the other core Commonwealth countries. However, O’Brien and Bosc offer little insight into the role of Her Majesty’s Loyal Opposition as “alternative government” or “potential government.” Instead, they define Her Majesty’s Loyal Opposition as such: “By convention, the opposition party with the largest number of seats in the House is designated as the Official Opposition (and referred to as “Her Majesty’s Opposition”), although nowhere is this set down in any Canadian rule or statute.” The footnote explains that the title Her Majesty’s Loyal Opposition “emphasize[s] the notion that an opposition is loyal to the Crown.” The Bloc quebecois certainly did not meet that requirement; they advocated for the secession of Quebec from a Commonwealth realm, and an independent Quebec would certainly have become La republique quebecoise, not another Commonwealth realm.    

O’Brien and Bosc suggest that the aforesaid convention that the largest opposition party becomes Her Majesty’s Loyal Opposition would only come into doubt in the event of a tie:  “Should an equality of seats among the largest opposition parties occur, the Speaker may be called upon to decide which party should be designated as the Official Opposition. In 1996, when a tie occurred between the two largest opposition parties during the course of a Parliament, Speaker Parent ruled that incumbency was the determining factor and that the status quo should be maintained.”

The Crown (the Queen in the UK and the Governors in the core Commonwealth) appoints the first minister -- but not the Leader of the Opposition!

They refer to the Speaker’s Ruling on the Official Opposition of Tuesday, 27 February 1996. At the outset of the second session of the 35th Parliament, the Bloc’s representation had fallen from 54 seats to 52; the Reform Party of Canada and the Bloc quebecois thus had the same number of seats. Speaker Gilbert Parent made his ruling by responding to the Reform Party’s submission on other parliamentary precedents. But the Reform Party’s approach presents numerous problems, because the idea of a secessionist party as Her Majesty’s Loyal Opposition is unprecedented in Westminster parliamentarism, which explains why the Reform Party grasped at such bizarre instances of Speaker’s inventions. O’Brien and Bosc say that “by convention, the opposition party with the largest number of seats in the House is designated as the Official Opposition.” The argument for a case without precedent should therefore have examined the underlying principles of the convention and explained why they needed to amend the convention. More fundamentally, why does this convention exist? What presumptions underpin this convention? I established in the earlier sections of this analysis that the convention that the largest opposition party becomes Her Majesty’s Loyal Opposition presumes that this party is a “potential government” or a “government in waiting.” The Bloc clearly did not meet this requirement. The British conventions, which Canada largely inherited, also presume the loyalty to the country of the second largest party in parliament! The British simply would never have questioned this basic presumption, because it is a mathematical impossibility that Sein Fein, or the Scottish or Welsh nationalists, would win the second largest number of seats. Indeed, even in Canada prior to the political fragmentation and realignment of the 1990s and 2000s, a secessionist or nationalist party would not become the second largest formation in parliament. The Bloc achieved this status by electoral flute and idiosyncrasy, fuelled by powerful vote splitting on the right between the Reform Party of Canada and the Progressive Conservative Party of Canada. All conventions derive their normative justification from underlying principles, so the Reformers should have asked not, “What are the precedents?” but rather, “What are the reasons for these convention, and how does the Bloc’s status of Her Majesty’s Loyal Opposition call the current convention into question?”

While the Reformers framed their approach incorrectly, Speaker Gilbert Parent made several blatantly false claims in his ruling that undermine his authority as Speaker. Parent’s most absurd claim shows that he fundamentally did not understand Canada’s constitution:

“I must respectfully differ with the hon. member. Your Speaker of the House has no role to play in the selection of a government. In our system the Speaker chooses neither the government nor the government in waiting. That prerogative belongs to the Governor General of Canada on the advice of his privy council. To put the Speaker in a position in which he would be choosing not only the official opposition but perhaps the next government based not on any objective criteria such as numbers in the House but rather on a qualitative judgment about the performance of the current official opposition party seems to me an untenable proposition. It would also be an encroachment on the royal prerogative and a violation of our long established constitutional practices [emphasis added].”

Her Majesty the Queen of Canada, His Excellency the Governor General, and the Right Honourable the Prime Minister. The Leader of the Opposition does not figure into this equation.

Parent implicitly acknowledged Her Majesty’s Loyal Opposition as the “government in waiting” – but the rest of his statement betrays his fundamental (and dangerous) misunderstanding of Canada’s constitution. He suggested that the Governor General chooses both Her Majesty’s Government and Her Majesty’s Loyal Opposition, but in reality, the Governor General only appoints a government that can likely command the confidence of a majority of the House of Commons. The Governor General plays no constitutional role whatever in the determination of which party becomes Her Majesty’s Loyal Opposition! Parent must not have read the Ministers of the Crown Act, 1937 or the Ministerial and other Salaries Act, 1975, both of which decree that the Speaker of the British House of Commons must act as an arbiter and make the final decision on which party becomes Her Majesty’s Opposition if necessary. That British legislation did not bind the Parliament of Canada, but it does offer an instructive and logical framework that all Westminster parliaments should follow. The designation of Official Opposition therefore either occurs automatically after the election, or the Speaker makes a ruling; the Governor General simply never intervenes into parliamentary affairs by designating Her Majesty’s Opposition. It would therefore not be “an encroachment on royal prerogative”, because the royal prerogative does not apply. If a government fell (highly unlikely in a majority parliament), then the Governor General may call upon the Leader of Her Majesty’s Loyal Opposition in order to access whether he can form a government in the same parliament. But in that instance, the Governor General would exercise the royal prerogative to appoint a new government, not the opposition. The Governor General, as a politically neutral figure and representative of the Crown, cannot intervene in partisan minutia without violating that principle of neutrality and impartiality; therefore, the Governor General’s selection of the Official Opposition would violate both current practice and the constitutional principles of responsible government. Parent’s false interpretation would also imply a direct relationship between the Governor General (or British sovereign) and the Leader of Her Majesty’s Loyal Opposition, when in fact, the Prime Minister acts as the Queen’s or Governor General’s primary constitutional adviser; no one else can fulfill this function. Furthermore, the Reformers did not ask to replace the Bloc as Official Opposition because of “a qualitative judgement about the performance of [the Bloc]”; they made the request because the Bloc never met the requirements of “Her Majesty’s Loyal Opposition.” This criticism strikes at the heart of the Bloc’s ethos and purpose, not its performance in the House of Commons. Gilbert Parent knew not of what he spoke, with respect to “long established constitutional practices.”

The Reform Party of Canada Should Have Become Her Majesty’s Loyal Opposition

Those who inherently disagree with my interpretation will probably argue something to the effect, “the Reform Party could not have formed the government in 1993”, or “the Reform Party was not a national party in 1993.”  Johnson and others described Her Majesty’s Loyal Opposition as an “alternate government” or a “potential government”, and that the electorate would determine whether to replace incumbent government or not in the next election. (This reasoning presumes majority parliaments, which made sense in 1997 in the United Kingdom and conformed to the practice of post-War Britain). A “potential” government does not mean that this party automatically becomes government upon the next election: the phrase merely recognizes that of all the parties available, Her Majesty’s Loyal Opposition could most probably form the next government, if the incumbent government can no longer command the confidence of the House. The Bloc quebecois fielded candidates in only one province and therefore could never possibly have formed government; since the party sought above all (at least in the 35th Parliament) the secession of Quebec from the Canadian federation, it also could never have morally formed government. The Reform Party of Canada ran candidates across the country and returned elected MPs from five provinces in 1993. That the Reform Party did not succeed in returning MPs from every province does not disqualify it from “potential government”. In the 35th Parliament, the Reform Party of Canada met the criteria for “potential government” better than of the other three opposition parties – the Bloc quebecois, the rump of the Progressive Conservatives, and the New Democrats – and at the time was best poised to form the next government.

The Progressive Party won the second largest number of seats in the 14th Parliament but, as a protest party, refused to act as Her Majesty’s Loyal Opposition. If all other conventional and institutional checks failed, Bouchard should have demonstrated the same moral consistency as the Progressives by refusing to take on a role that the Bloc could not fulfill. Perhaps he took on the role in order to make a mockery of the system and demonstrate its inefficacy and failures to Quebeckers, for the sheer irony. If so, he certainly succeeded in making a mockery of Her Majesty’s Loyal Opposition by repudiating the principle of loyalty. Johnson described the British Parliament after the election of 1997 and Labour’s landslide victory, but it aptly describes the Canadian opposition from the 35th Parliament onward: “Understandably some of the doubts about the traditional practice of opposition are expressed most vigorously by the smaller minority parties which oppose, but do not aspire to be the official opposition, or like the Liberal Democrats are perennially unable to realize their dream of becoming the official opposition and, therefore, a potential government.” This means that official opposition normally acts as a prerequisite to forming a government.

I attribute the lack of critical thinking on determining the official opposition to a misplaced political correctness which dictates that any criticism of the Bloc quebecois attacks its legitimacy as a party in parliament (when in this case, the issue arises over its status as Official Opposition, not its standing in parliament), or attacks Quebeckers writ large; it also speaks to the fear of re-evaluating conventions, or perhaps a widespread misunderstanding of the purpose of convention. In light of the inherently flawed and incorrect Speaker’s ruling of 1996 and the British method, the parliament should amend the Parliament of Canada Act by codifying the principle that the Speaker shall be called upon to determine which party becomes Her Majesty’s Loyal Opposition when necessary, as in the British Parliament. More fundamentally, however, we must always check the convention against the principle that it represents and from which it is derived. When the convention no longer matches the principle (in this case, loyalty), the convention must be re-evaluated and modified. To pretend otherwise is to betray the principles of Westminster parliamentarism.

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Posted in Loyal Opposition | 28 Comments

Fixed Elections in the Provinces, Part III: Analyses and Conclusions

Posted on 2011/08/22 by J.W.J. Bowden

Characteristics and Purposes of the Fixed-Election Laws

Section 56.1 of the Canada Elections Act established fixed elections for the Parliament of Canada every four years on the third Monday in October, but necessarily preserves the constitutional powers of the governor general, because otherwise, this section would have been unconstitutional. “Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion” because the Constitution Act, 1982 stipulates that any proposed constitutional amendment affecting the powers of the offices of the Queen, Governor General, and Lieutenant-Governors must pass the Parliament of Canada and all ten provincial legislatures. Such an amendment would change Article III of the Constitution Act, 1867, which deals with the executive powers. That is why in my previous post on this subject of “fixed elections” in Canada, I characterized the federal law, and all its provincial equivalents, as a means of amending the constitution by proxy: they attempt, somewhat paradoxically, to create through statute a new constitutional convention whereby first ministers voluntarily restrain their power. However, conventions are not justiciable but politically enforceable; breaking a convention on fixed elections thus entails political consequences, like the potential punishment from an unforgiving electorate annoyed at the prospect of early dissolution and elections.

The Canadian fixed elections not only attempt to place voluntary, political restraints on first ministers and their exercise of crown prerogative, but by establishing fixed elections every four years, they also attempt to shorten the constitutional limit of a parliament’s duration from five years to four – but without amending the written constitution. Fixed-election laws thus codify the other convention (though I cannot call it a “constitutional convention”) that, in a majority parliament, elections do normally occur every four years rather than every five. This convention applies to the Parliament of the United Kingdom, the Parliament of Canada, and virtually every other Westminster parliament whose statutory or constitutional limit is still formally five years. Clearly, the Canadian approach to fixed-election laws, as pioneered in the provinces, intends to restrain the premier or prime minister from requesting an early dissolution at a moment opportune and advantageous to his governing party in a majority parliament. However, because of the clauses that preserve the Crown’s powers, these laws will, paradoxically, remain in the realm of political enforceable convention. This unusual approach responds to the perils of “re-opening the Constitution” that most Canadian political scientists dread.

Problems with the Canadian Approach

I wrote earlier on being undecided on the Canadian approach of fixed-election laws, though the other post probably gave the impression that I was leaning against them. After thinking on the issue this past week, I have indeed come to oppose the Canadian model of fixed-election laws for the following reasons.

Christy Clark, Leader of the BC Liberals and Premier of British Columbia

First, the laws serve only as a moral restraint on the sitting first minister, and not as a legal or constitutional constraint on the office of premier or prime minister, which renders them redundant. Prime Minister Harper demonstrated the inefficacy of the Canadian approach in 2008 when he advised an early dissolution, which despite his detractors’ claims, was legal. He took on the risks of political enforceability and dealt with the consequences in the 40th parliament. The new leader of the BC Liberals and Premier of British Columbia Christy Clark may advise an early dissolution in a few weeks in September 2011, according to some media reports, despite the Constitution of British Columbia, which calls for the next general election to occur in May 2013. Unlike Newfoundland’s fixed-elections law, British Columbia’s does not include a provision whereby a premier who takes office during the same parliament in which his or her predecessor resigned must advise dissolution within 12 months. The Premier of British Columbia can of course legally advise and then should receive an early dissolution. But what is the purpose of the law? It becomes redundant. Stephen Harper believes that “the purpose of a fixed-election date is to create certainty” and that “you can only have certainty about a fixed-election date in the context of a majority government.” If Christy Clark requests an early dissolution, then we must qualify Stephen Harper’s interpretation: we can only have certainty about a fixed-election date in a majority parliament where the first minister leads his or her party for the entire life of that parliament and into the next election.

I can only hope that all the scholars who criticized Prime Minister Harper’s decision in 2008 would also criticize Premier Clark just as strongly if she does indeed advise early dissolution. If not, one could only conclude that the scholars who criticized Prime Minister Harper in 2008 intended to attack him personally due to ideological enmity, and not because of his interpretation of section 56.1, which would in turn undermine the academic credibility and objectivity of the scholars in question.

Premier McGuinty of Ontario

Second, the critics of fixed elections argued that they would in effect extent the writ period by a few months. They were right. While I don’t use “Americanize” as a pejorative like some critics of fixed-elections probably would, it is true that the fixed-election laws have created an American-style marathon campaign. I believe that this extended pre-writ campaign detracts from governing and empowers the bureaucracy (the executive) at the expensive of the legislature. The McGuinty government passed a fixed-elections law in Ontario in 2005, and the first fixed election occurred in 2007 for the first Thursday in October, and every four years thereafter. At the time of writing in mid-August 2011, the province of Ontario has clearly already entered a pre-writ period; the door-knockers are already canvassing for all parties – but the Lieutenant-Governor hasn’t issue the writs! This extended pre-writ campaign, which in Ontario probably began in earnest in April 2011, now eclipses the legal, writ-period campaign and detracts from the functioning of the provincial legislature, as MPPs focus on re-election months prior to the election rather than on the legislative session. Under the old system, electoral speculation and pre-writ campaign would last a few weeks at most – not six months. This extended de facto writ period also has implications for campaign financing and possibly even the caretaker convention, which could become the subject of other posts.

Third, if Manitobans, Saskatchewanians, Ontarians, Prince Edward Islanders, and Newfoundlanders & Labradorians all elect majority parliaments this year, then all of their fixed-election campaigns will overlap to some extent with the federal campaign in 2015. Unlike in the United States, where the Republican and Democratic Parties are seamlessly integrated at the state and federal levels, Canada’s provincial and federal parties are largely separate (apart from the New Democratic Party). But in any given province, federal and provincial volunteer bases overlap (in Saskatchewan, for instance, largely the same right-wingers would volunteer for the Saskatchewan Party and the Conservative Party of Canada). Our federal and provincial elections are completely and constitutionally separate, so these overlaps could pose some unforeseen problems for all the political parties.

Fourth, I can’t fathom why Saskatchewan, Manitoba, Ontario, and Newfoundland all decided to schedule their fixed elections in October and November. Particularly on the Prairies, snow and early winters are not uncommon in October. Why would they hold the elections during a cold part of the year? At least British Columbia had the decency to schedule its fixed elections in May, a more pleasant month. New Brunswick chose the end of September.

Fifth, Canadian approach muddles parliamentarism. As I mentioned in the post on Harper’s early dissolution of 2008, while the British approach, if passed, would emphasize “fixed parliaments”, which puts the onus on Parliament as the legislative branch where it belongs, the Canadian fixations on “fixed elections” and constraining the first minister’s individual discretion concentrates almost exclusively on the political executive. Prime Minister Harper, and probably the other premiers (I haven’t examined any Hansards yet) characterized the fixed-election laws as such: they guarantee fixed-elections in a majority parliament, but in a minority parliament, they do not because the House might withdraw its confidence in the government, thus forcing the prime minister or premier to advise an early dissolution. This is not necessarily true in a minority parliament; if a coalition of opposition parties could command the confidence of the same parliament, then that parliament would not necessarily need to be dissolved. For reasons that I’ll set out later, I consider coalition governments undesirable, and elections preferable under those circumstances, but we must acknowledge that coalitions are in the realm of constitutional possibility, particularly if a single-party minority government losses the confidence of the House in a formal vote in the House. (I reject the idea that the opposition can constitutionally withdraw its confidence in the government outside of the House of Commons). But we must at least acknowledge all the possibilities from the outset.

Conclusion: Constitutional Amendment is Necessary for Real Change

In contrast to the Canadian approach, the Fixed-Term Parliaments Bill currently before the British Parliament would radically alter crown prerogative. It would set general elections every five years, thus maximizing the current constitutional limit on a British parliament, and permit an early dissolution only if the House of Commons itself voted in favour. The Draft British Cabinet Manual describes the bill: “A Parliamentary term would last five years unless the House of Commons voted (by a majority of two-thirds) to dissolve Parliament, or unless a government lost the confidence of the House and it proved impossible for an alternative government to be formed within 14 days.” If this bill were put before the Parliament of Canada, it would need to be presented as a constitutional amendment, and all ten provincial legislatures would subsequently need to pass it in order to achieve the unanimous consent that the amending formula requires for altering the powers of the offices of Queen and Governor General. The Fixed-Term Parliaments Bill represents a radical constitutional shift and a significant limitation on the crown prerogative and empowerment of Parliament vis-a-vis the government.

Canada could also adopt the Australasian approach. The Parliaments of Australia and New Zealand are constitutionally limited to a lifespan of only three years rather than five. (A formal limitation of the life of a Canadian parliament from five to three years would also require a constitutional amendment). Consequently, neither of these parliaments would need to consider something like the Fixed-Term Parliaments Bill or the Canadian fixed-election laws – because even a minority government could survive for three years. The Australasian approach would allow for the preservation of crown prerogative and create a neutral ground where the effluxion of time would act as the primary limitation on both the government and the House. As the Draft British Cabinet Manual says, parliaments dissolve automatically “when they expire after a period of five years.” Therefore the effluxion of time removes both the Prime Minister and the Governor General from the equation just as effectively as the Fixed-Term Parliaments Bill would.

I hope that Alberta, Quebec, and Nova Scotia remain the redoubts of the traditional system and refuse to adopt fixed-election laws, because this federation ought to include a few jurisdictions that do things differently, and because of all the problems associated with the Canadian approach to fixed-election laws.

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