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The peace of this kingdom


 

Brian Topp makes the case for the import of last week’s House vote on prorogation.

This is how Parliamentary and democratic conventions are made in our parliamentary system. A clear statement by the House, after a clear abuse. The House has spoken, and the Crown and its counsellors must now so govern themselves, except at their peril.

In future, a Prime Minister who advises the Governor-General to padlock our Parliament in order to avoid accountability on a great public issue (as opposed to a routine proceeding) is in violation of a direct order from Canada’s only legitimate and elected democratic body — the House of Commons.

In future, a Governor-General who accepts such advice is therefore inviting a wide debate about the future utility of her office — which would also raise fundamental issues about the future of the Crown in Canada.


 

The peace of this kingdom

  1. Conservative response to Brian Topp: "Nuh uh!"

  2. a small question? – who exactlyd eterminesthe difference between a ' Routine ' prorogation and one that isn't?

  3. one small question? who determines the difference between a ' Routine ' prorogation and one that isn't?

    • Ultimately, the GG.

    • well that's simple really, it's not routine if the opposition can generate enough faux outrage to encourage a facebook group of, oh lets say 75,000. No sense in making the threshold to high.

      • *Yawn* Some people are not putting enough thought into their clever soundbites.

        Shape up people or the media will stop letting us all pretend we're all on reality teevee here.

    • Excellent question, Wayne.

      • Yes, to the point that I wonder if someone else is using Wayne's handle? It didn't even have one "Stevie boy" or any other trademark Wayne sense about it.

        It was an excellent question, well posed. I still feel a little disappointed.

  4. As much as both prorogations rankled, I am always loathe to admit a convention has been born. So I remain skeptical.

  5. Mr Topp, I was with you until you implied that every other institution in Canada that isn't elected is not legitimate.

    • He didn't. He pointed out that the House of Commons is the only federal body that is both legitimate and elected.

  6. Topp's position is challenged, including by the Federal Court's ruling in Duff Conacher's case against the government re violation of the fixed election date law. The Federal Court's ruling recognized two tests in determining the establishment of a convention. The first, gleaned from the Supreme Court in the Patriation Reference, consists of three questions: 1) what are the precedents; 2) did the actors in the precedents believe that they were bound by a rule; and 3) is there a reason for the rule? The second, generally favoured by top political scientists and constitutional experts (including Heard, Hoegg, Aucoin, Russell and others), consists of an explicit agreement by all “relevant officials” or political actors to adopt a certain rule of conduct that constrains their behaviour.

    The NDP motion meets neither standard. As a new rule, it obviously cannot meet the test of usage as their is no precedent to support it. And their is not universal support for the measure as evidenced by the results of the vote and Harper's ongoing assertion that there was nothing improper or immoral about his behavour.

    All that leaves is that a similar future move would violate the will of the House, though there is plenty precedent for the import Harper and the CPC places on the will of Canada's only legitimate and elected democratic body, sadly.

  7. Have to agree with Topp on this one.

    Have to add: let's appoint people of substance to the Governor Generalship from now on. Clearly it is more than a figurehead post.

  8. Yeah sure Harper is going to listen to a Dipper. The fact is Harper will ignore the resolution and if they persist then there will be an election. There is always the issue of unintended consequences which cannot be known. Despite the resolution the GG's is obligated to take the advice of her first minister not the opposition. So they are playing a fool's game and it will go nowhere other than to an election which we all know the Liberals can't wait for :-)

    • Parliament supercedes the PM, and all the PM's authority flows through Parliament. PM is just an MP appointed by his or her party.

      • The PM is appointed by the Governor General, not by his or her party. I agree, though, that the PM's authority stems from his or her command of the confidence of the House of Commons. So long as he or she has that confidence, however, the Governor General must accept the PM's advice.

        The NDP resolution would not apply to the latest prorogation of parliament anyway, since it occurred at a point where the government could easily take the position it was a routine matter, not driven by any improper motives. Unlike the "King-Byng Affair" it was not an attempt to avoid a defeat in the commons, nor did it violate any previous agreeement between the PM and the Governor General.

        • True enough. The PM is legally appointed by the GG, and is in turn appointed by his or her party to be appointed by the GG if the party forms government.

          I think that, ultimately, prorogation needs to be put directly in the hands of Parliament. The executive should not be able to shut down the legislative branch unilaterally, especially since any and all legitimacy of the executive flows from the implied consent of the legislative branch. If prorogation is indeed routine, I can't see a HoC denying a request to prorogue. It seems like a sensible check on the power of the executive. We shouldn't need to have an election to spank misbehaved governments–we should be able to put in place rules to prohibit misbehaviour in the first place. Otherwise we let governments get away with all kinds of shenanigans so long as they are just a little shy of egregious enough to cause them to be turfed.

        • Granted, so long as the PM has the confidence of the House, the GG must/should accept the PM's advice. But what if the GG believes that the request to prorogue is an attempt to avoid a question of confidence?

          • That was tried last December but she still granted the request. The question of the good of the country does come into play here. I would submit the GG saw the coalition as usurping the results of an election held not 6 weeks before and which saw the official opposition receive a historical low 26% of the vote not to mention having a leader who was a dud. She probably saw it as a very unstable governing environment and so granted the PM's request for the good of the country. Canadians outside of Quebec resoundingly agreed with her decision. Given what happened this past year with the economy etc. she made a very wise decision. Three leaders trying to govern at the same time (officially or unofficially) is unrealistic.

      • Of course you are right but the only option is to vote non confidence in the government. Lets see the Liberals put their money their mouths are. The opposition can squawk and the media can publish torqued headlines and write outrageous columns on prorogation but it is the Canadian people who will decide who they want to govern them. Last poll Ipsos showed the government on the rebound.

  9. I think Wayne put his finger on the nub of the question: who gets to decide if a prorogation is routine or not – particularly since both chretien and i believe Martin arguably abused the process also[ i don't except they were directly comparable- but nonetheless they happened]
    Parliament can't limit the crown's progative [ not on a simple motion anyway] but they can limit the PMs. So, i wonder if Topp is correct. Is the GG only bound to listen to the PM regardless, or is this in some way invalidated if the house has ruled the PM must seek their permission first?

    • My understanding is that the rules governing the GG and her powers are etched in the constitution. If that is the case then a motion voted by the House could not stop a PM by advising her in favour of prorogation.

  10. Beyond whether or not this is enforceable, it creates a simple opportunity for the opposition to publicly question the Conservative commitment to accountability:

    Stephen Harper prorogues Parliament
    The move is unpopular with 63 percent of Canadians
    A motion calling for a limit on prorogation is put to the HoC and passes by a vote of 139 t0 135
    Stephen Harper and the Conservative Party vote against the motion

    the last line? I leave to the opposition war room(s)

    • the contrast to Harper's treatment of the unpopularity of the coalition is telling.

  11. I will agree with Top that the NDP motion was about the right tone. It does not make sense for parliament to try to attempt to attach specific penalties to each misconduct the PM can come up with. However, it does make sense to gradually raise the stakes with the electorate for those misconducts. Ultimately it is in Canada's interests that Harper behaves and provides the members of the public that are Conservative supporters with better representation. This motion will provide any PM's spin doctors with a challenge the next time prorogation is abused, and that is about as much as we should hope for.

    I wont argue with the Great Bison above about legalities, however I will note that it is the voters that decide which conventions have to be respected.

    • Hi Stewart. I am not certain as tow whether or not you are being sarcastic re Great Bison, but I do agree with you on a number of fronts. I too think that the motion has the right tone, that is better to not get weighed down on the penalties at least not yet, that this will be a challenge informally to the next party/PM that attempts to use prorogation illegitimately and that the voters may give this thing teeth in the short run if/when that happens.

      really i just wish for a couple slight amendments to its contents and for the opposition to go the extra mile to push making this legally binding as I believe the principles involved merit it.

      • No sarcasm, (… heck I could have picked a lot worse than "Great") , and given the fixed election date bs, I understand the issue of making it legally binding. However, given that the fixed election legislation was presented as legally binding to the public, one lesson is that if the public will not hold the PM to account then Canada truly becomes a democratic dictatorship.

        • ok. I took the photo of that, indeed, great bison in Elk Lake National Park in Alberta last June. he was an impressive and magnificent beast.

          i agree. i think something that has been too often passed over in the coverage and comments of the democratically important happenings of the last couple years is the state of quality of our citizens with respect to their democratic responsibilities.

          • Really, Elk Lake National Park? ;-)

          • whoops…. elk islands national park… i must have listened to too much Hayden this week.

          • Ize pretty sure….

            Of course, there is an Elk Lake on Vancouver Island, just on the edge of Victoria and it is a provincial park. No bison there, but close to both sea and mountains.

            On the other hand Elk Island National Park is quite a distance from either sea or mountains.

            At first I thought you meant Haydn the composer, but youtube helped me to find Hayden the folkie…is that the right genre?

          • yeah Elk Lake outside of Vic is a beautiful spot. I stopped for a stroll once among the many times whisking to and fro the ferry during my couple years in Victoria. My sister and I, who drove across with me when I moved out there, are both big fans of Hayden and took it as a good omen when we rolled into town with my overloaded car that my decision to head out there was a good one! indeed Elk Island is a tad far from the sea and mountains. my other sister and I stopped there on the return when I returned to Ontario last summer. and here I am packing again… we will see where the next interesting stops are, though the airplane prob has less freedom that way.

            yeah, he is kinda a poppie folk sort of guy with some variances at time but not many. he is worth a listen or two. good music to work to. i you like that sorta thing.

          • Been to Elk Lake a few times….one of the spots that we sometimes take in while visiting the inlaws in Victoria, it's a nice enough spot.

            Driven past it more times, often at about 2200 hours in that mad rush of traffic that has just gotten off the Tsawassen to Schwartz Bay ferry. I love that ferry trip, which usually follows the >12 hour road trip from Edmonton, but the half hour Indy sprint into Victoria is "interesting".

            Anyhoo, nice to get some background info. Ta ta.

          • you too Phil. what btw is your route for a near 12hr trip from Ed to Vic?

          • We almost always use the Yellowhead highway….stop at the Tim's in Edson, through Jasper, Valemount, Kamloops, Merritt and then try to skirt around the edge of Vancouver. I'm told that this route is a bit longer than the other route (the TransCanada route through Banff, the Rogers Pass, Shuswap area) but this route is supposed to be quite a bit less busy, and it does seem to be fairly relaxed.

            Also, no speeding, only pass when absolutely necessary and relaxing pit stops.

            Did my reference to the Indy sprint from the ferry terminal into Vic seem familiar? :-)

            I understand that is better than it used to be

          • oh, definitely! that drive from the ferry to town is one of the craziest drives in Canada i think. half the cars racing, half driving 50km – most in the outer lane – mixed with traffic lights, left hand merges and cross traffic at points some weird sights along the way to boot. i had to bike it once which was even crazier!

            i loved the yellowhead route through jasper and such. when you are crossing over from BC to AB it is just so stunning and I prefer Jasper and the surrounding area to Banff and the surrounding area. it extends the trip but i also like coming all the way down to the bottom and crossing though the okanagon. beautiful country down there too!

          • I have watched you guys going back and forth all day about Elk National Park. If you want to run a travel blog then why don't you email each other. Stay on the topic.

          • Not at all. However if I wanted to join a travel club I would do that. This is a political blog not a travel blog. You can talk about it. Just email each other. One comment fine but a whole serious? Come on.

          • go play pls. if you don't want to read it, don't read it.

          • I like to do that but remember it keeps showing up in my email inbox. I guess I can show it as spam. Like long lost buddies why don't you give each other your email address and they can have a personal conversation as much as you like. It is getting tedious.

          • do have your settings so you get an email every time someone writes anything or something? mine is set for only direct replies. you were not even in this thread until you showed up to tell us what we should and should not talk about.

          • Hi. I've got it set same as Hollinm, and while this thread isn't bothering me (in fact I'd enjoy it if I had the time) the one with Francien & Justin Wordsworth bugs me because I feel so sorry for poor Justin, and worried for Francien.

            All we need is a way to turn off "all comments". Hey, and I think you can, simply by picking "none" as your last post's choice. I'm going to try that with this one to see if it works. Hollinm, I suggest you reply to me and do the same.

          • Oh boy!! Well, I can see how that would be annoying.

            Just curious, I have my e-mail notification setup the same way as s&m…direct replies…I don't even see an option that would allow me to get each and every post sent to me. Have you been able to find an option to unselect? As I say, just curious because, well, I'm just curious about things.

          • Hey hollinm, thanks for the feedback. I'll definitely keep it in mind.

            I've only been reading/posting at macleans for a short while, but even in that short time I have witnessed a wide range of posts from the macleans staff, as well as a wide range of tangential discussions to many of the initiating posts. So I was pretty comfortable that while s&m and I obviously weren't on topic, we also weren't really charting any new territory.

          • i actually meant, with a total lack of clarity, veering off the 5 in BC to down the 97. but i agree the Icefields Parkway is amazing. the last time we got to see a boatload of wildlife including some of the increasingly rare mountain goats.

            i suspect that driving down in the rain on a bike would be a f@cking cold experience.

          • I made it to Golden, a hot shower, a steak, and unconsciousness.

            Oh, sorry, right, the Okanagan is amazing! My brother lives in Penticton and I'm hoping to spend a good few days getting around the valley this August.

            Ever thought of taking the Crow's Nest Pass route? I've always wanted to try that. I've never even set foot in the Kootenays.

          • i did think about it and it is def on the list for one of the next times whenever that might be Jack!

  12. That's a very good question. And since it's simply unfair to dump such a poltical question in the GGs's lap, there should be a vote of the house [ in effect a CV] to determine if the PM has in fact the houses confidence as regards a proposed prorogation. This would in effect be moving the permission from the GG to the house – a step forward IMHO. In 99% of the cases the request would be routine and no problem.

    • Lets see what happens when Harper makes it a confidence vote.

    • "In 99% of the cases the request would be routine and no problem". If this is the case what's the big deal? If any government prorogues and the opposition doesn't like it then a vote of non confidence is the solution. If its a majority government it sucks to be the opposition. Then the people will make their feelings known at the time of the next election.,

  13. It seems to me that the House is actually capable of enacting such a requirement (which is to say TECHNICALLY capable, not necessarily "politically" capable) but it would also seem to me that the NDP motion itself comes nowhere close to doing so.

  14. In a minority government, if the PM refuses to play along with the will of parliament, the opposition has a perfectly legitimate option. It's called a vote of non-confidence upon resumption of the house.

    The fact that the present opposition is unable to muster any spirit to follow this option is a fairly good indicator that they believe they will not fare better in public opinion.

    Even assuming that the NDP or Lib motions are not unconstitutional, what mechanism of enforcement do they propose…a vote of confidence in the government?

  15. Absolutely true!! The fact is they are not prepared to stand behind their rhetoric particularly the Liberals. The NDP know they will get there 2 million votes and the Bloc will take their 40+ seats. So they could care less about an election. Oh, I forgot Layton is going thru cancer treatment so may not be too anxious. The Libs have limited support west of Ontario. Sure they can get support in fortress Toronto but northern and southwestern Ontario have little use for Iffy and his corrupt party.
    So watch for Iffy to back down on the prorogation stuff and the detainee issue. He knows Harper will force an election if they continue down the coalition path that is the opposition parties today.

    • Is Harper only ready to force an election if he can breath life into the coalition monster? If he is ready in any case, what's the holdup?

  16. Constitution trumps convention. If a prime minister goes to ask, it's the prime minister's fault, not the GGs. The GG cannot be held accountable for Parliament failing to hold its own members to account.

    Unfortunately, I don't believe the wording is strong enough in the motion that passed to really do anything. Oh sure, MP's may try to start a wide ranging debate on the utility of the GG, but it can do that at any time. One time that might have been particularly good to do it was during the contempt of the fixed election, where if the GG is not going to pay any attention to the spirit of a law the GG just recently signed, it may bring into question what attention the GG will have to pay to something the GG has NOT signed.

    • Nothing in the constitution says that the GG must grant the request of the PM.

      • Nothing in the written constitution, no. In the constitution as a whole? The Governor General, as the representative of the Queen, must act as a monarch in a constitutional monarchy, that is, she must accept the advice of her Prime Minister so long as he or she has the confidence of the House of Commons. So yes, the Governor General must accept the request of the Prime Minister to prorogue parliament in all but the rarest of circumstances (such as the King-Byng "affair" where a refusal was the correct responsed to an inappropriate request).

        • The unwritten constitution = convention, no? And convention can be modified by decree of Parliament, presumably.

        • she must accept the advice of her Prime Minister so long as he or she has the confidence of the House of Commons

          The confidence of the House of Commons is the key point of course, which is why I'm convinced that the House COULD pass a motion which would effectively limit the PM's ability to ask for prorogation unilaterally in all scenarios, by establishing that a PM who asks for prorogation under certain circumstances cannot claim to have the confidence of the House without demonstrating said confidence by means of a vote in the House prior to the request. In other words, a motion might be crafted which would force the GG to effectively say "under the current circumstances, your request for prorogation without first winning a vote in the House of Commons supporting your request for prorogation is an indication in and of itself of the House's lack of confidence in your government, as laid out in the motions describing the circumstances required for a government to demonstrate that they command the confidence the of the House, as enacted by the House itself".

          It would appear that this actual NDP motion doesn't even come close to that though (and as has been said above – that's probably why it passed!).

          • That would amount to enacting an implied loss of confidence when the decision to prorogue was designed to avoid the defeat of a government. That may be something the Commons could adopt as a position, which could become a constitutional convention. Of course that argument just illustrates that the angst over the most recent prorogation had nothing to do with that event, but was a delayed reaction to the previous prorogation.
            (I am not convinced a single resolution of the Commons can become a consitutional convention. One that was re-enacted by successive Parliaments might become one – but the general rule is that no Parliament can bind its successor – so no individual resolution of the Commons can be considered to bind any subsequent Commons)

  17. There's a concept known as "constructive ambiguity" that is so fundamental to Canada that it really needs someone (in the media, perhaps?) to examine, if only to remind another generation of Canadians just how much of a strength that has been to for this country.

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