Minority Government

[ReeferMadness]

In the Globe and Mail, Adrienne Clarkson has written a piece calling for more transparency in the case of GG judgement calls like the one that was made by Michaelle Jean in 2008. She seems to call Jean's decision into question when she discusses the use of prorogation.

I think it would be better if we had some clear rules on this stuff rather than relying on centuries of rare cases that are used as precedent.

[ToadBrother]

In the Globe and Mail, Adrienne Clarkson has written a piece calling for more transparency in the case of GG judgement calls like the one that was made by Michaelle Jean in 2008. She seems to call Jean's decision into question when she discusses the use of prorogation.

I think it would be better if we had some clear rules on this stuff rather than relying on centuries of rare cases that are used as precedent.

Harper still enjoyed the confidence of Parliament when he asked prorogation. Jean's decision wasn't even a precedent-setting situation, as Lord Dufferin granted Sir John A. MacDonald's request for prorogation when MacDonald was trying to avoid censure over his bribe-taking in the Pacific Scandal.

As to the openness, let's remember here that the Governor General's job is to assure responsible government, not to act as a public official. The Sovereign's role, and by extension the Viceroy's role as the Sovereign's representative, is not fundamentally political.

As it is, the rules are rather simple. If there is a hung parliament after the 19th, Harper enjoys the right to form a government, whether he has a plurality or not. The Governor General may question this decision, and even place conditions on a PM in such a situation, much as Lord Byng did with Mackenzie King (the beginning of the King-Byng Affair), but the basic constitutional precept that a government may govern so long as it enjoys confidence is a cornerstone of our system of government.

If the government decides to carry on in a hung parliament, in other words it is a minority government, then it will have demonstrate it is fit to govern at the Throne Speech. At that point, it will either retain Parliamentary confidence and continue to govern, or be defeated. While there is no hard and fast rule, the general understanding these days is that if a government should fall within a few months of an election, then the Governor General will look to Parliament to see if any other party can form a government. It isn't terribly hard; either Parliament can provide a government or it cannot.

The only real shady area in all of this surrounds the kinds of conditions the Governor General can place on governments. As we understand it now, Jean obeyed the constitutional forms in granting Harper's request (just as Lord Dufferin had done), but placed conditions on it that would require that Parliament return swiftly and that Harper would have to demonstrate that he could retain confidence.

[BC_chick]

2008 was terrible. I was mortified by the bullying and misinformation that took place.

Thanks for posting that article. Very well said.

[ReeferMadness]

Harper still enjoyed the confidence of Parliament when he asked prorogation.

Really. I didn't realize he had held any confidence votes before this happened.

Jean's decision wasn't even a precedent-setting situation, as Lord Dufferin granted Sir John A. MacDonald's request for prorogation when MacDonald was trying to avoid censure over his bribe-taking in the Pacific Scandal.

See this is where I have a problem. Because another GG did something dumb a century and a half ago, Jean gets to do something dumb now?

Harper was trying to avoid parliament expressing its confidence in him (or lack of thereof) - and she allowed him to do it. Then he went out and lied to the public about there being a "coup d'etat" which caused the Liberals to chicken out. Ignatieff was a disaster.

As to the openness, let's remember here that the Governor General's job is to assure responsible government, not to act as a public official. The Sovereign's role, and by extension the Viceroy's role as the Sovereign's representative, is not fundamentally political.

Again with the ancient history. Let's be honest with ourselves. The original purpose of the GG was to allow our betters in Britain to ensure that the colonies didn't do something stupid. Gradually, it evolved into an appointed referee role. Of course, there is a basic problem when the referee is appointed by one of the opposing sides but let's forget that for the moment.

We should be allowed to understand the basis of the referee's ruling. Clarkson is dead right on this.

[ReeferMadness]

2008 was terrible. I was mortified by the bullying and misinformation that took place.

It sure was - it was not the finest moment in Canadian democracy.

[ToadBrother]

Really. I didn't realize he had held any confidence votes before this happened.

See this is where I have a problem. Because another GG did something dumb a century and a half ago, Jean gets to do something dumb now?

Harper was trying to avoid parliament expressing its confidence in him (or lack of thereof) - and she allowed him to do it. Then he went out and lied to the public about there being a "coup d'etat" which caused the Liberals to chicken out. Ignatieff was a disaster.

Again with the ancient history. Let's be honest with ourselves. The original purpose of the GG was to allow our betters in Britain to ensure that the colonies didn't do something stupid. Gradually, it evolved into an appointed referee role. Of course, there is a basic problem when the referee is appointed by one of the opposing sides but let's forget that for the moment.

We should be allowed to understand the basis of the referee's ruling. Clarkson is dead right on this.

The problem is that you can't have fixed rules on successor governments in the event of a vote of non confidence. A Westminster Parliament doesn't have an independent functional executive like a presidential system. Who forms a new government in the event of the fall of a government, or whether a new government can even be formed is entirely dependent upon the how that Parliament is divided up. It may even require negotiations in which the Governor General has to play referee, and he will hold the nuclear option of dissolution should the Parliament be unable to produce another govenment.

As to your casting aspersions in our system, the powers of the Sovereign and Their Viceroy are locked in by section 41 of the Constitution Act 1982, so if we want them changed, that means Parliament and all ten provinces.

We should be doubly mindful of the Governor General's constitutionally entrenched reserve powers if we intend on altering the Electoral system in a way that makes hung parliaments the norm. Parliament can change the voting system, but it needs the approval of the Provinces if it wants to make the way governments are selects more open (whatever that may mean).

Edited October 15, 2015 by ToadBrother

[ReeferMadness]

The problem is that you can't have fixed rules on successor governments in the event of a vote of non confidence. A Westminster Parliament doesn't have an independent functional executive like a presidential system. Who forms a new government in the event of the fall of a government, or whether a new government can even be formed is entirely dependent upon the how that Parliament is divided up. It may even require negotiations in which the Governor General has to play referee, and he will hold the nuclear option of dissolution should the Parliament be unable to produce another govenment.

As to your casting aspersions in our system, the powers of the Sovereign and Their Viceroy are locked in by section 41 of the Constitution Act 1982, so if we want them changed, that means Parliament and all ten provinces.

We should be doubly mindful of the Governor General's constitutionally entrenched reserve powers if we intend on altering the Electoral system in a way that makes hung parliaments the norm. Parliament can change the voting system, but it needs the approval of the Provinces if it wants to make the way governments are selects more open (whatever that may mean).

So you're saying we're stuck with a dumb system because it's embedded in the constitution. That doesn't mean that the GG can't deign to explain to her Majesty's subjects (the people, not the corgis) the rationale behind his/her actions.

And Houston, we have a problem. We now have a precedent where a party that wins a plurality but not a majority can show up in the house, deliver some kind of update and suss out whether it can get one of the other parties to go along with it. And if not, it can go back and demand prorogation (now there's an unambiguous precedent) to allow it time to drum up public support (apparently lying to the public is perfectly acceptable).

That's just awesome.

[blueblood]

So you're saying we're stuck with a dumb system because it's embedded in the constitution. That doesn't mean that the GG can't deign to explain to her Majesty's subjects (the people, not the corgis) the rationale behind his/her actions.

And Houston, we have a problem. We now have a precedent where a party that wins a plurality but not a majority can show up in the house, deliver some kind of update and suss out whether it can get one of the other parties to go along with it. And if not, it can go back and demand prorogation (now there's an unambiguous precedent) to allow it time to drum up public support (apparently lying to the public is perfectly acceptable).

That's just awesome.

Thats the voters problem for electing the mps they do. When the throne speech and budget are passed, the pm typically has confidence of parliament. They cant prorogue parliament forever as the GG sets the stipulations as toadbrother stated. Chretiens liberals "prorogued" parliament as well. Thats the system we have - we elect mps to in theory do out bidding.

In my opinion it should be MPs deciding who the prime minister in parliament and party leaders rather than being the party leader as determined by caucus of party hacks. That would in theory give more power to the mps as a check and balance to the pmo and behind the scenes party hacks.

[ReeferMadness]

Thats the voters problem for electing the mps they do. When the throne speech and budget are passed, the pm typically has confidence of parliament. They cant prorogue parliament forever as the GG sets the stipulations as toadbrother stated. Chretiens liberals "prorogued" parliament as well. Thats the system we have - we elect mps to in theory do out bidding.

In my opinion it should be MPs deciding who the prime minister in parliament and party leaders rather than being the party leader as determined by caucus of party hacks. That would in theory give more power to the mps as a check and balance to the pmo and behind the scenes party hacks.

This has nothing to do with the MP's - it's the way the system has evolved and parties have taken control. Theoretically the PM is accountable to parliament but we all know that hasn't be reality in a long time. Maybe never in Canada. The system is so stupid and broken.

Did Chretien prorogue parliament to avoid a confidence vote?

The idea of the MP's deciding the PM is wonderful but I doubt that could happen without a constitutional amendment.

[Canada_First]

This has nothing to do with the MP's - it's the way the system has evolved and parties have taken control. Theoretically the PM is accountable to parliament but we all know that hasn't be reality in a long time. Maybe never in Canada. The system is so stupid and broken.

Did Chretien prorogue parliament to avoid a confidence vote?

The idea of the MP's deciding the PM is wonderful but I doubt that could happen without a constitutional amendment.

So, the system is "stupid and broken" because an NDP or Green government is never elected?

The system works fine. You get the most votes you go to Ottawa. They are directly accountable to the voters. We have the ability to get rid of them. No such system of checks and balances exist in a PR system. The same crook can get elected over and over again since it's based on party seniority lists and percentage of votes.

[Topaz]

My understanding is, if Harper had the most seats, and a non-confidence vote was put forth it would be up to the GG to decide and from what I've seen from this GG he's totally a Harper supporter and therefore, if Harper wanted an election, we be back in election mode.

[SpankyMcFarland]

While there is no hard and fast rule, the general understanding these days is that if a government should fall within a few months of an election, then the Governor General will look to Parliament to see if any other party can form a government. It isn't terribly hard; either Parliament can provide a government or it cannot.

The only real shady area in all of this surrounds the kinds of conditions the Governor General can place on governments. As we understand it now, Jean obeyed the constitutional forms in granting Harper's request (just as Lord Dufferin had done), but placed conditions on it that would require that Parliament return swiftly and that Harper would have to

demonstrate that he could retain confidence.

The whole rigmarole is so outdated and metaphysical. There should be no wiggle room for anybody, no 'understandings'.

[GostHacked]

See this is where I have a problem. Because another GG did something dumb a century and a half ago, Jean gets to do something dumb now?

It's called setting a precedent. You hear that in court cases all the time. Since it happened before, it can and will happen again. I believe the proroguing of the government happened at least twice during Harper's time as PM. If you have a problem with that, then you should have a problem with a lot of things the government does.

[ToadBrother]

So you're saying we're stuck with a dumb system because it's embedded in the constitution. That doesn't mean that the GG can't deign to explain to her Majesty's subjects (the people, not the corgis) the rationale behind his/her actions.

As to your first question, I don't think the system is dumb at all. As the voters do not select the Government, but rather the Parliament, figuring out who the Government is is going to be a problem at times. And this is a feature of ALL parliamentary governments; republics and constitutional monarchies alike. After the last German election it took Angela Merkel several days to build a coalition that could keep the confidence of the Bundestag.

As to the GG being more open, again, that really does intrude upon the powers of the Sovereign. The Queen and Her Viceroys in the Commonwealth Realms are supposed to be non-partisan, and to openly state their intentions would mean they were openly intruding on what is Parliament's decision.

Remember, the GG is just the referee. At the end of the day it is Parliament that decides whether it can provide a government or not.

And Houston, we have a problem. We now have a precedent where a party that wins a plurality but not a majority can show up in the house, deliver some kind of update and suss out whether it can get one of the other parties to go along with it. And if not, it can go back and demand prorogation (now there's an unambiguous precedent) to allow it time to drum up public support (apparently lying to the public is perfectly acceptable).

That's just awesome.

There's no precedent. After a normal electoral cycle where the PM goes to the GG and asks for a dissolution, the PM still enjoys the confidence of Parliament and thus has first shot at forming a government. In other words, confidence is inherited from the last Parliament. Obviously if the dissolution happened because of a loss of confidence, then that "first right to govern" no longer applies, but that's a pretty rare circumstance, at least in Canada.

And there never was an unambiguous precedent over prorogation. A Prime Minister who enjoys the confidence of Parliament is within his rights to advise the Governor General and the Queen on the use of Royal Prerogatives like dissolution and prorogation. Jean couldn't refuse the advice of the PM, but she could, like Lord Byng before her, place conditions on honoring the PM's request (in Byng's case, the condition was that King could not ask for dissolution for two years).

The reason the rules aren't clear is because most people don't seem to understand, fundamentally, how our system of government works. In part I think it's because the politicians would rather have things opaque so they can say absurd things like "the party with the most seats automatically is the government" and "other parties in Parliament getting together to replace the Government is a coup".

[ToadBrother]

The whole rigmarole is so outdated and metaphysical. There should be no wiggle room for anybody, no 'understandings'.

If the voters elect a hung parliament, then there is going to be rigmarole. This is a feature of ALL multiparty parliamentary governments. In the absence of a majority, the parliament is going to have to figure out who governs, and in some countries, like Israel for instance, this can several days, and in Israel, the President doesn't even have the power of a referee, as Israel, like Japan and Sweden, does not give the head of state the powers to referee.

Belgium took nearly a year after the 2010 election to sort out who would govern, so I don't think Canadians have much right to complain.

[ReeferMadness]

It's called setting a precedent. You hear that in court cases all the time. Since it happened before, it can and will happen again. I believe the proroguing of the government happened at least twice during Harper's time as PM. If you have a problem with that, then you should have a problem with a lot of things the government does.

I get precedents. In this case, however, I see 2 problems. The first is that, from what I've read, there were few precedents (some claim none) across all Westminster systems over hundreds of years. If you have to reach back 125 years to a time when the political context was very different, how good is your precedent. The second is I don't think it's necessary. There aren't that many options and someone should be able to lay down some rules how this stuff works.

And proroguing isn't the issue - it's using prorogation to avoid going to the parliament specifically to avoid a non-confidence vote you know you're going to lose, particularly when you haven't even established that you have the confidence in the first place. This is anti-democratic. As is much of what Harper has done.

[cybercoma]

If the government decides to carry on in a hung parliament, in other words it is a minority government, then it will have demonstrate it is fit to govern at the Throne Speech.

Mark my words, if Harper wins a minority government, we won't see a throne speech until the new year (if it's allowed to be delayed that long), so he can attempt to force another election and blame the opposition. Edited October 15, 2015 by cybercoma

[ToadBrother]

I get precedents. In this case, however, I see 2 problems. The first is that, from what I've read, there were few precedents (some claim none) across all Westminster systems over hundreds of years. If you have to reach back 125 years to a time when the political context was very different, how good is your precedent. The second is I don't think it's necessary. There aren't that many options and someone should be able to lay down some rules how this stuff works.

Systems work on precedents, even when those precedents are over a hundred years old. Courts are known to quote precedents older than that.

But really, when a PM when the confidence of Parliament asks the Governor General for a prorogation, there's not that much wiggle room for the Governor General. It's a bedrock tenet of our system that the Royal Prerogatives are used by the Government so long as the Government enjoys the Confidence of Parliament. Jean did what other Viceroys have done before her, which was to assure that the prorogation was of very limited duration and that upon Parliament's return, the Government would have to submit a Throne Speech and budget that Parliament would accept.

And proroguing isn't the issue - it's using prorogation to avoid going to the parliament specifically to avoid a non-confidence vote you know you're going to lose, particularly when you haven't even established that you have the confidence in the first place. This is anti-democratic. As is much of what Harper has done.

It may be anti-democratic, but democracy is not the only consideration here. Believe me, when macDonald did it to Lord Dufferin, Dufferin was by all accounts stymied. Dufferin even wrote to the Imperial Privy Council looking for advice (or maybe for a way to offload the decision), and by all accounts the Imperial Privy Council's response was "Do what you feel is best, but do not bring the Crown into disrepute", which was as about a vague and unhelpful response as one could expect.

In the end Dufferin, like Byng and Jean after him, decided that the constitution is very clear on a Government's rights while they enjoy confidence, and agreed to Harper's request (in reality, she had no choice, it's not her job to throw governments out, it's Parliament's and the voters'). But she did right by everyone by making sure the recess was short and invoking the Byng precedent in placing conditions on the return of Parliament.

And once again, everyone has to be reminded, these powers are protected under Section 41 of the Constitution Act, 1982, and if you want them changed, you're going to need to convince Parliament and ten provincial legislative assemblies to go along with it.

As I said last night, it's something to ponder if we are going to change the electoral system, because if hung parliaments become the norm, the Governor General could become a considerably more influential figure.

[ToadBrother]

Mark my words, if Harper wins a minority government, we won't see a throne speech until the new year (if it's allowed to be delayed that long), so he can attempt to force another election and blame the opposition.

I have a feeling that the delay wouldn't be that long, and even if it was, there's still a fair chance that the GG would still consider another party forming government should the Tory minority falls. I think Harper's days of playing roulette with Royal Prerogatives is done.

[ReeferMadness]

As to your first question, I don't think the system is dumb at all. As the voters do not select the Government, but rather the Parliament, figuring out who the Government is is going to be a problem at times. And this is a feature of ALL parliamentary governments; republics and constitutional monarchies alike. After the last German election it took Angela Merkel several days to build a coalition that could keep the confidence of the Bundestag.

Several days is AWESOME. Last time, Harper took several months and used the time to tell lies.

As to the GG being more open, again, that really does intrude upon the powers of the Sovereign. The Queen and Her Viceroys in the Commonwealth Realms are supposed to be non-partisan, and to openly state their intentions would mean they were openly intruding on what is Parliament's decision.

Remember, the GG is just the referee. At the end of the day it is Parliament that decides whether it can provide a government or not.

In 2015, we're talking about "the powers of the Sovereign", which is based in the magical belief that being born into a certain family gives you some superior power or superior ability to rule. Why should anyone have a problem with that?

There's no precedent. After a normal electoral cycle where the PM goes to the GG and asks for a dissolution, the PM still enjoys the confidence of Parliament and thus has first shot at forming a government. In other words, confidence is inherited from the last Parliament. Obviously if the dissolution happened because of a loss of confidence, then that "first right to govern" no longer applies, but that's a pretty rare circumstance, at least in Canada.

And I'm sure this worked wonderfully in the 1800's. In 2008, however, Harper found a loophole and gamed the system in a way that allowed him to essentially continue the election by other means until early 2009.

And there never was an unambiguous precedent over prorogation. A Prime Minister who enjoys the confidence of Parliament is within his rights to advise the Governor General and the Queen on the use of Royal Prerogatives like dissolution and prorogation. Jean couldn't refuse the advice of the PM, but she could, like Lord Byng before her, place conditions on honoring the PM's request (in Byng's case, the condition was that King could not ask for dissolution for two years).

There's an unambiguous precedent now. And like I said, anyone who's elected and doesn't like their chances can prorogue and either hope something happens or try to make something happen that will change their odds. Unscrupulous leaders could take this places it was never intended. The Pandora's box is now open.

The reason the rules aren't clear is because most people don't seem to understand, fundamentally, how our system of government works. In part I think it's because the politicians would rather have things opaque so they can say absurd things like "the party with the most seats automatically is the government" and "other parties in Parliament getting together to replace the Government is a coup".

Actually, the reason that the rules aren't clear is because they aren't. There were a range of different opinions (from people far more knowledgeable than either of us) as to whether Jean made the right call and there still are.

And the reason that most people don't understand our system is it doesn't make any sense in the context of the 21st century. It looks like it was designed in the 19th century to help Britain and the Monarchy maintain control over a fading empire. Oh. It was.

[ReeferMadness]

I have a feeling that the delay wouldn't be that long, and even if it was, there's still a fair chance that the GG would still consider another party forming government should the Tory minority falls. I think Harper's days of playing roulette with Royal Prerogatives is done.

wtf.

He just established the unambiguous precedent in 2008. How can it be "over" in 2015?

[ToadBrother]

And the reason that most people don't understand our system is it doesn't make any sense in the context of the 21st century. It looks like it was designed in the 19th century to help Britain and the Monarchy maintain control over a fading empire. Oh. It was.

When the rules were "created" (really they evolved for centuries), Britain was in its ascendancy. The general outlines of the modern Westminster constitution were in place by the end of the end of the 18th century, when Ministries were formed out of Parliament.

And you know what, I'll even risk the wrath of bush_cheney and say that I think our system is superior to the American system, precisely because of the notion of confidence.

And I will remind you again, if you want the rules changed, then you'd best get a lot of support, because Section 41 uses the 10/10 amending formula.

[Evening Star]

And the reason that most people don't understand our system is it doesn't make any sense in the context of the 21st century. It looks like it was designed in the 19th century to help Britain and the Monarchy maintain control over a fading empire. Oh. It was.

Tbf, the Empire did pretty well for almost another century.

xp

Edited October 15, 2015 by Evening Star

[ToadBrother]

wtf.

He just established the unambiguous precedent in 2008. How can it be "over" in 2015?

Um, I was talking about recalling Parliament after an election, not about prorogation.

[ReeferMadness]

But really, when a PM when the confidence of Parliament asks the Governor General for a prorogation, there's not that much wiggle room for the Governor General. It's a bedrock tenet of our system that the Royal Prerogatives are used by the Government so long as the Government enjoys the Confidence of Parliament. Jean did what other Viceroys have done before her, which was to assure that the prorogation was of very limited duration and that upon Parliament's return, the Government would have to submit a Throne Speech and budget that Parliament would accept.

And that "limited duration" was long enough for Harper to lie to the people and swing public opinion. You do get that, don't you?

It may be anti-democratic, but democracy is not the only consideration here. Believe me, when macDonald did it to Lord Dufferin, Dufferin was by all accounts stymied. Dufferin even wrote to the Imperial Privy Council looking for advice (or maybe for a way to offload the decision), and by all accounts the Imperial Privy Council's response was "Do what you feel is best, but do not bring the Crown into disrepute", which was as about a vague and unhelpful response as one could expect.

So, our system is broken. Beyond repair.

In the end Dufferin, like Byng and Jean after him, decided that the constitution is very clear on a Government's rights while they enjoy confidence, and agreed to Harper's request (in reality, she had no choice, it's not her job to throw governments out, it's Parliament's and the voters'). But she did right by everyone by making sure the recess was short and invoking the Byng precedent in placing conditions on the return of Parliament.

You keep on saying "enjoy confidence". Harper didn't have the confidence in 2008 and he almost certainly won't have it based on the makeup of next week's parliament. The problem is that he's allowed to play games and avoid parliament.