Peter Aucoin, Mark D. Jarvis and Lori Turnbull. Democratizing the Constitution: Reforming Responsible Government. Toronto: Emond Montgomery Publications, 2011.
The authors of this book were not alone in expecting that Canada’s recent experience with minority government (2004-11, under prime ministers Paul Martin and Stephen Harper) would serve as an antidote to what they describe as the prime minister’s “authoritarian rule.” This was too optimistic. In fact, the authors’ assessment is that “minority government only intensified the degree to which prime ministers were able to, and did, abuse power to undermine parliamentary democracy.”
This is a strong claim, but not a new one. Donald Savoie has demonstrated in successive publications how decision-making in the Canadian federal government has become more centralized, in particular because of the reach of the Prime Minister’s Office and the Privy Council Office. In Great Britain, debate and scholarship on similar trends can be traced back to Lord Hailsham’s pronouncements (in the mid-1970s) about the “elective dictatorship.” Although the late Peter Aucoin and coauthors Mark Jarvis and Lori Turnbull take account of the broader context of prime ministerial power, their focus is more specific, namely the “erosion of the conventions meant to guide the practice of responsible government.” As they see it, “these conventions have become the rusted wire and tilted fence posts of Canadian democracy.”
The authors focus on the conventions with regard to the dissolution of Parliament and the prorogation of parliamentary sessions and the ways in which the prime minister can profit from the ambiguity surrounding the conventions to assert his/her authority. One element of the ambiguity is the degree to which the governor general is or is not bound to accept the prime minister’s advice on these matters. For example, on dissolution, Eugene Forsey and other scholars have suggested that if a prime minister requested a dissolution not long after a general election (perhaps within six months) the governor general, based on the reserve powers of the office, could refuse the request and invite the leader of the opposition to try to obtain the confidence of the House of Commons. Others dispute what is sometimes seen as a lesson of the King-Byng crisis of 1926 and take the view that the governor general does not have such discretion.
Although events of the past few years did not lead to this “what if” being played out, more than one dusty tome must have been taken from the shelf in late 2008 during the controversy about prorogation, to which Aucoin, Jarvis and Turnbull devote considerable attention. Less than two months after the October 14, 2008, election, the three opposition parties issued a public written declaration of nonconfidence in the Harper government. The declaration, which was communicated to the governor general, Michaëlle Jean, indicated that the parties had agreed on a proposed new government. On December 8, Harper requested a prorogation of the House of Commons. The governor general agreed to his request, and the prorogation was in effect until January 26, 2009. In the interim, the three-party agreement fell apart, and a nonconfidence vote was not introduced when the House returned.
In the authors’ view, Harper’s prorogation request was an abuse of power intended to prevent the government from being defeated. The tactic succeeded because, in the absence of a clear consensus about what the governor general should do, she was obliged to accede to the request. Although the authors discuss other cases (such as the 2009 prorogation), this episode is key to their central argument that “the prime minister has unrestrained power to decide when to exercise the governor general’s powers.” They add: “Those powers now belong effectively to the prime minister.”
The authors focus on the conventions with regard to the dissolution of Parliament and the prorogation of parliamentary sessions and the ways in which the prime minister can profit from the ambiguity surrounding the conventions to assert his/her authority
Trenchant writing, such as in the passage just quoted, makes this book a livelier read than the title might suggest. The authors nevertheless sometimes slightly overplay their hand. For example, at a number of points they refer to the prime minister’s “control” of the House of Commons. While few would disagree that the Canadian prime minister has become more powerful over time and is probably too powerful, concepts such as “influence” or “authority” would be more apposite. Certain countervailing forces, such as the work of some of the officers of Parliament, are discussed. But the treatment is selective. For example, the auditor general is hardly mentioned. Sheila Fraser’s criticisms of the sponsorship program certainly could not be deflected by Prime Minister Jean Chrétien, however powerful he was; indeed, along with the subsequent Gomery Commission, they contributed to a sharp decline in the fortunes of the Liberal Party. We also know that, on occasion, the caucus can alter the content and/or timing of legislation supported by the prime minister.
The authors conclude by presenting a cogently argued reform agenda. Although they also address certain aspects of House of Commons procedure and the powers of party leaders, they devote more attention to outlining four reforms intended to alleviate the ambiguity about — and potential abuse of — constitutional conventions.
- There should be a requirement that the House of Commons be summoned with 30 days of a general election (and not delayed for several months, as occurred in 1979).
- The fixed election legislation (adopted in 2006) should be amended to require a two-thirds majority vote in order to dissolve Parliament for an election earlier than the date set in law.
- A “constructive nonconfidence” procedure should be adopted: confidence in the government would be withdrawn only upon adoption of a motion explicitly stating that confidence had been lost and identifying which other party leader was able to form an alternative government (such a procedure exists in Germany, Spain and Belgium).
- A two-thirds majority of the House should be required to prorogue Parliament.
Some of these changes would alter the power of the governor general. To have legal effect, they would therefore require a constitutional amendment approved by Parliament and all the provincial legislative assemblies. I share their frustration that even embarking on discussions to this end is likely to be rejected on the basis that it would open up a Pandora’s box. Their alternative is to articulate some of these processes (or altered conventions) in a formal government document along the lines of New Zealand’s Cabinet Manual. This makes a certain amount of sense, but prior conditions need to be met: Who will champion the changes destined to alleviate the ambiguity surrounding the constitutional conventions they analyze so thoughtfully? How can party leaders (even the opposition leader, who may expect to become prime minister) be persuaded to give up such powers? It is not cynical, only realistic, to ask these questions.
After decades of trying to reform various political institutions, including the Senate and the electoral system (though not at the federal level), advocates of even modest changes to our democratic institutions are rare. We should nevertheless applaud this engaged, and engaging, contribution to public debate on these issues.
I shall close on a personal note. I met Peter Aucoin in late 1989 when he recruited me to serve as a research coordinator for the Royal Commission on Electoral Reform and Party Financing chaired by Pierre Lortie (Peter was the commission’s research director). Particularly during the months when the commission’s report was being prepared, I was impressed by Peter’s knowledge, intellectual honesty and respect for colleagues. He left us too soon, but it is reassuring that younger scholars such as Lori Turnbull and Mark Jarvis are carrying forward Peter’s commitment to the critical study of Canada’s democratic institutions.
The authors were awarded the Donner Prize for 2011, awarded annually to the best public-policy book written by a Canadian.