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What if the GG said no?

It was reported today that Stephen Harper will go to Michaelle Jean on Sunday to ask that Parliament be dissolved and an election be held. But what if Jean said no?

First, take a step back. An editorial in the Toronto Star put it this way yesterday:

Prime Minister Stephen Harper is about to pull the plug on the 39th Parliament and plunge the country into an election because, according to his spokesperson, he could find “no area of common ground” with the opposition that would allow the government to move forward with its agenda.

But just what is the Conservative government’s agenda? In his meetings with the opposition leaders over the past week, Harper reportedly played his cards close to his vest. He did not lay out a government agenda for the fall and seek opposition approval to move ahead. Rather, he posed rhetorical questions like (according to Liberal Leader Stéphane Dion): “Do we have common ground about the orientation of the country?”

Seems to me that Harper has had it pretty much his way in Parliament. Despite a minority they have been able to pass budgets and other legislation by finding enough support to get through. Yes, the Conservatives have had to compromise, but that is what a minority government is all about.

The Star also speculates on why: what Harper’s hidden agenda might look like:

Unshackled from the requirements of a minority Parliament to temper their policies, would Harper and the Conservatives return to their Reform roots and implement more tax cuts accompanied by deep reductions in government spending, outsource regulatory oversight, privatize the CBC, create a triple-E Senate and even adopt socially conservative stances against abortion and gay marriage?

While Harper has worked hard to moderate his party’s image in recent years, there have been recent glimpses that the old ideas are still kicking around inside the government, including the cuts to arts programs and the shifting of some responsibility for food inspections from the public service to the industry.

Second, the Conservatives made a big show of bringing in a fixed election date for October 2009. There are some great quotes from Conservative MPs about how this would prohibit Prime Ministers from playing political games around the timing of election. Here in BC, we have a fixed election date set for May 2009 and so there is lots of time for both parties to prepare. A minority government is different, to be sure, but it would be sweet if the Conservatives had to live up to their own rhetoric. On the weekend the Globe had a nice photo essay with quotes of Conservative MPs trumpeting the fixed election date legislation (alas I cannot find the link anymore).

Why would I want the Conservatives in power for another year? Because a year from now, he would lost. The economy is turning down. Harper hopes that no one has noticed yet, and wants an election in before the bleeding gets worse. The downturn in the economy also means the federal budget has shifted from a decade of surpluses to a small deficit, and this will mean spending cuts between now and fiscal year end because the Conservatives would never run a deficit and would never revisit their foolish tax cut of a year ago that looted the remaining surplus room handed to them by Paul Martin.

I’m no political scientist, but could not our GG could reject the bid for an election and ask that the Liberals form a government if the Conservatives feel they can no longer govern. Why should the bully-in-chief get his way just because it is convenient?

As an aside, because none of what I’m blathering on about is gonna happen anyway, I’m reminded of a column by Duncan Cameron back when Martin was PM. In it he noted that the PM stays the PM after a minority government is elected until stepping down for the other party to form a new government. That is, even if Harper were to come out with less seats than the Liberals, he can stay Prime Minister as long he thinks he can govern and pass legislation. Would Harper cling to power in such a circumstance?

Enjoy and share:


Comment from matt
Time: September 4, 2008, 6:39 pm

wow, I actually had a day dream yesterday where she did say no…

I imagine that Bill C61 was actually election-bait all along.

Comment from janfromthebruce
Time: September 4, 2008, 8:33 pm

Despite a minority they have been able to pass budgets and other legislation by finding enough support to get through. Yap, 43 times with the libs.
So asking the libs to form govt would mean that they would have to get another party in the house to go in coalition with them, so Mark why didn’t you say that?

The libs would have to work with the NDP to make this “dream” work, and not once mentioning the NDP in this post, makes me wonder about it.

Incidently, I would love to see this coalition happen for one year. We might actually get some real ‘progressive’ policies through, instead of all the right wing crap we got this year, with libs supporting cons.

Comment from David Primack
Time: September 5, 2008, 9:11 am

Indeed Patrick Monahan, Dean of Osgoode Hall, just wrote on this in last weekend’s globe.

He makes the case that constitutionally speaking she can’t refuse. Any lawyers about have a view on this?

What I did find particularly interesting was his discussion on the ‘saving provision’ in the fixed-date legislation:

“The legislation did include a “saving provision,” stating that the requirement to hold an election in October, 2009, did not affect the power of the governor-general to dissolve the House earlier.”

“In short, the Governor-General (and thus, indirectly, the Prime Minister) retains full legal authority to dissolve Parliament and trigger an election at any time, regardless of whether the government has lost the confidence of the House of Commons. If the Prime Minister does seek an election this week, it may well be inconsistent with the political objectives underlying the fixed-election-date legislation, but not the actual requirements of the law as enacted.”

Seems to me then that Harper conveniently left himself just the kind of loophole needed to do what PMs before him have always done… call an election whenever they want.

Comment from Travis Fast
Time: September 5, 2008, 11:40 am

Formally speaking the GG has the Power of Dissolution which he or she may exercise without advice or consent of the cabinet. OTOH the GG has never refused a request from a PM since the King-Byng affair. Hence it is almost a constitutional convention that the GG does not exercise an unencumbered right to power of dissolution.

Interestingly and more specifically, however, with a MINORITY government it is not so clear cut, the GG could and would be well within her constitutional bailiwick to ask the Liberals if they were in a position to form a minority government.

Comment from Alison
Time: September 7, 2008, 12:20 am

Here’s that G&M photo essay you were looking for.

No doubt you’ll be needing it again soon.

Comment from Erin Weir
Time: September 7, 2008, 2:23 pm

Of course, she did not say no, even though Andrew Coyne had been suggesting that response for two and a half weeks. It will be interesting to see if Errol Mendes, the constitutional law professor, goes through with his proposal to challenge this “illegal election” in court.

Comment from Travis Fast
Time: September 7, 2008, 3:35 pm

Well here is the legal conundrum: Let us assume that Harper’s legislation did -not- have an op-out clause. In that case it would have been an illegal law which contravened the Constitution. With the opt out clause it, the legislation, presumably conformed to the constitution.

So what is Errol Mendes going to argue to the court?

Harper broke his own law because he exercised the opt out clause in his own legislation which was necessary so that it, the legislation, would conform to the constitution which bestows the right of the PM to call an election when he or she sees fit?

Harpers so-called fix date election legislation was sham from the get go and thus was cynical, wasteful and dishonest. But he has not broken the law because the highest law of the land (the Constitution) says the PM has that prerogative subject to the sole caveat that he or she must exercise that power within 5 years to the day of having been elected.

NOTE this cannot be altered by any simple piece of legislation. Only a Constitutional Amendment can do that. Hence the fixed date legislation could never be anything more than a pledge with no force or effect in law and was thus a sham. This by the way holds for the legislation in BC too presumably.

Comment from Erin Weir
Time: September 7, 2008, 4:51 pm

I do not necessarily agree with Mendes. However, his argument is not that the fixed-election law restricts the GG’s ultimate constitutional authority to dissolve Parliament, but that it restricts the PM’s latitude to ask her to do so.

Comment from Travis Fast
Time: September 7, 2008, 6:51 pm

Errol writes:

“If not the rule of law, a most basic sense of political morality should make the prime minister think twice about breaking his own law.”

This makes no sense. The ultimate rule of law is established by the constitution for good reason. No government with a majority, let alone a minority should be allowed to change the structural rules of the game (the constitution). As I understand it Harper’s legislation contained a opt-out clause which basically gave the PM the ultimate authority to determine the election date. And he had to do this or the SC would have thrown the law out. Mendes’ argument is that Harper broke the spirit of his own law, but the spirit of his own law was counter to the constitution. So how can Mendes go before the court and ask it to enforce the spirit of a law that was counter to the constitution?

The question of legality has become a red herring. The real issue is that this law a cynical ploy which anyone who had any instruction in Con Law or the CDN constitution could would have known and certainly harper knew. To my mind that is the issue.

Comment from Erin Weir
Time: September 8, 2008, 5:42 am

Travis, I agree the real issue is the revelation that the law was just a cynical ploy that Harper felt free to ignore. However, I think that you may be giving short shrift to Mendes’ legal argument (made on the first page of the op-ed to which you linked).

Everyone agrees that an ordinary law could not (and did not) override the GG’s formal constitutional power to dissolve Parliament. The “saving provision” of the fixed-election law simply recognized this fact.

However, the PM has no such formal power. It is just a constitutional convention that the PM may direct the GG to dissolve Parliament anytime he wants. Ordinary laws can override constitutional conventions.

Mendes writes, “That is precisely what the Conservatives did when they decided to constrain the conventional power of the prime minister to seek dissolution whenever he smelled political advantage to do so.”

In contrast, Monahan writes, “Nor does the legislation impose any limits on the discretion of the prime minister to advise the governor-general to dissolve Parliament. Any such limitation would have been unconstitutional in any event, as an attempt to indirectly limit the powers of the governor-general.”

I do not know anywhere near as much about constitutional law as either of these professors. However, it seems to me that the debate is not whether the law directly constrains the GG’s formal power, but whether it constrains the PM’s latitude to request that she use this power.

Comment from Travis Fast
Time: September 9, 2008, 8:43 am

Hi Erin,

A couple of points.

First, just for clarification. I think if you reread my last post you will notice that I was talking directly about Mendes’ argument about constraining the constitutional power of the PM. I wrote inter alia:

“As I understand it Harper’s legislation contained a opt-out clause which basically gave the PM the ultimate authority to determine the election date. And he had to do this or the SC would have thrown the law out.”

Second, you write above that:

“However, the PM has no such formal power. It is just a constitutional convention that the PM may direct the GG to dissolve Parliament anytime he wants. Ordinary laws can override constitutional conventions.”

The PM certainly does have the formal power to do so and he or she has exercised it since 1867. Just because a said power is not explicitly written into the Constitution does not mean it is not a constitutional power. Constitutional conventions cannot be contravened by simple law. If you were correct any government with a majority could abolish ALL the Rules of Responsible Government (one of which being the power of the PM to dissolve parliament via the GG) as NONE of these rules are explicitly outlined (written) in the constitution. Are you aware that the Cabinet and the PM are not mentioned at all in the constitution of 1867?

Following your logic in a minority parliament all the opposition parties could get together and pass a simple piece of legislation which abolished the office of the PM and and the Cabinet (the executive) !

Whether the bill constrained the GGs power or the PMs power is besides the point they both have the same status in the tradition of responsible government which cannot be changed by simple legislation and that is why Harper had to put an opt out clause in the legislation.

I am pretty certain, given fifteen years of studying the Canadian political system, comparative parliamentary systems and Con law, that the SC would view the principles of Responsible Government as even more sacrosanct then written constitutional law.

Comment from Erin Weir
Time: September 13, 2008, 11:24 am

Travis, you wrote, “Constitutional conventions cannot be contravened by simple law.”

In the op-ed linked above, Mendes wrote, “Constitutional conventions can be both entrenched in and overridden by statute law.”

This issue seems to be the crux of the debate.

Comment from Trasvis Fast
Time: September 13, 2008, 1:18 pm

If Mendes thinks simple legislation can abolish the conventions of responsible government then I would venture he is not worth taking seriously. What I am really saying is that given that the PMs conventional power to ask the GG to dissolve the parliament is part of the broader package of conventions which constitute responsible government in Canada(which I repeat are all conventions, including the the Entire Executive) the chances the court would allow any piece of simple legislation to tamper with it (RES GOV) is slim to none.

Erin you just need to ask yourself the question is it possible that a simple piece of legislation could abolish the executive? Mendes’ argument about convention amounts to answering that question in the affirmative!

So the real crux of the matter is what kinds of conventions simple laws could alter. Perhaps simple procedural conventions but the power to dissolve parliament and go into an election is no mere procedural convention.

I could envision one scenario where the court might rule Harper had acted illegally. The court could take the position that no simple legislation can alter the constitution but at the same time hold that Harper was bound to his own legislation. That is they could argue that Harper’s legislation only applied to Harper and not to the constitutional powers of the PM in general. That is they would have to skirt the question of the constitution altogether.

It would indeed be a weird ruling.

Anyway, I hope Mendes does go forward with it because it would be fun to read the courts decision.

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