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Sunday, December 7, 2008


December 7, 2008,  Online

So. She did the wrong thing. Weak and stupid she had not, three years after she had accepted it, learned her job.

Oh, to have been a fly on the wall for her two hour meeting with Harper!

She did not wait long to see him and she did not wait after seeing him to give her decision.

When did she bull up on her duties? On the plane back from Prague? Over breakfast? Or did she leave it to Harper to instruct her?

Neither she nor those who may have briefed her can be suspected of any partiality to Harper. Perhaps those who briefed her stopped short of saying what she should do. But, knowing what the question was, how could she be briefed without the obvious conclusion being pointed out: that she could not take the advice of a Prime Minister to prorogue Parliament precisely because he knew, as she must have known, that he lacked the confidence of the House, that if she did not prorogue Parliament he would be defeated?

Charles II prorogued Parliament several times when he did not like what it was up to. His father ruled for many years without Parliament and lost his head. The Merry Monarch found it safer to have a Parliament in being but not in session. Jean and Harper have carried us back over three hundred years to the time before men had figured out how to make responsible government work.

The first polls suggest Harper is winning his game. If an election had been held on Friday, he would have won his majority. Majorities approve the prorogation, condemn the coalition, oppose Dion becoming Prime Minister, want an election, which we are not having because even Harper must think that after a defeat on Monday Jean would rightly have refused a dissolution and called on Dion to form his government.

But the polls are ambiguous and may prove more volatile than the stock market. And should Jean install a pollster at Rideau Hall and act on polls? Are the polls a vindication of Harper's request and her decision? They may show that he can get away with it. They do not show that he was right.

How could the decision be defended? She was bound to follow the Prime Minister's advice, at least until he had actually lost a confidence vote in the Commons? This would be to mistake her position as one governed by rules to be found in textbooks, expounded by experts, conventions, precedent, rather than the practical logic of our institutions and her position in them. There is only one rule: The Queen's Government must be carried on by a government with the confidence of the Commons. Conventions or precedents have no meaning or authority except as they show how that rule may have been followed in particular circumstances. Her wrong decision cannot create a precedent except in the sense that, if Harper wins his game, future Prime Ministers, and Premiers, may think that they could get away with the same gambit, in circumstances when those pleased with the consequences in this case would be discomfited.

If there were a rule that the Governor General must always follow the advice of a Prime Minister until he loses a confidence vote, Paul Martin could properly have asked Jean to prorogue Parliament in November 2005, winning himself a couple of months to buy off the NDP again, to lure a couple of M. P.'s across the floor, to check the death notices for opposition M. P.s. Polls showed Canadians did not want an election.

But Jean's decision seems more to be approved because people don't like the Coalition and because of a general sense that politicians are playing games while the country faces an economic crisis. The reader should know that I am a Tory and abominate the Coalition and all its elements. Despite my condemnation of Harper, I shall, as always, vote Tory in the next election, whenever it is. If the prorogation derails the Coalition and even gets Harper his majority, I shall be so far pleased.

But we cannot look to the Governor General to decide who would be the best government for Canada. It seems very unlikely that Jean would actually prefer Harper to Dion as Prime Minister. Her leanings seem to be all the other way. And she has never been shy of separatists. Unless the controversy at the time of her appointment has made her so and she was afraid it would be revived if she allowed a Bloc supported government to take over next week.

Those who defend Jean's decision on the basis of what they believe will be the substantive result must be saying that the Governor General has the right and the duty to decide who would best govern the country, even if we must suspect that Jean was not exercising her judgment and was simply afraid to say no to Harper, that she made what was, for those who approve it, the right decision for the wrong reason.

If your reason for believing Jean was right is that you don't like the Coalition you must believe she would have been right to make the decision for that reason, because she did not like the Coalition. And that she would have been right to say no to Harper if she preferred the Coalition. If she would have been right to decide on the basis of her preference of government why should she not campaign for her choice in an election, as before responsible government was achieved in Canada, Governor General Sir Charles Metcalfe did in 1844, successfully?

Or perhaps you would defend the decision as the Governor General applying the will of the people. And we are back to the polls. Except that the polls, though taken before, were not released until after her decision. And majorities said that the opposition parties "have every democratic right to form a coalition government" if Harper is defeated in the Commons and that Harper can't be trusted to lead the Government.

But more importantly the only will of the people the Governor General can properly take cognisance of is the duly elected House of Commons. All governments will be unpopular at times. It is not the Governor General's job to second guess the House and choose a government that might be more popular in the country than it's standing in the Commons from the last election might indicate.

Perhaps you think the prorogation is just a sensible brief delay, a time out for heads to cool. But are heads cooling? Will they? The campaigns and the demonstrations have begun. No doubt our minds will be on other things for much of the next seven weeks, Christmas, New Year's, Obama's inauguration, but so far as national politics interests us there will only be more dissension, anger, confusion and dismay. And by January 26 Parliament will not have got through any business since it adjourned quietly last June.

The Queen's Government is not being carried on.


Since writing the above I have read news reports recounting what happened at Rideau Hall on Thursday morning.

Apparently Jean never saw Harper alone. Kevin Lynch, the Clerk of the Privy Council and head of the Civil Service, and the Governor General's secretary, Sheila-Marie Cook, were present, except when Cook stepped out to consult law professor, Companion of the Order of Canada, and, in the words of The National Post, constitutional guru, Peter Hogg.

Lynch's responsibilities, qualifications and interests in the question are unclear. Unless it was to advise on the formalities in the event of Jean's decision one way or another. Or, to brief on the work of the Government, taking the Governor General into the substance of politics where she should not go.

Cook is a long-serving bureaucrat whose only relevant experience is in protocol, which was not in issue.

Hogg's involvement, and in the background that of politics professor Peter Russell, who has apparently met Jean several times since her appointment, reflects the dangerous misconception that the issue was a matter for experts. Pleasant and instructive as chats with the distinguished professors emeriti might be, they would lead us astray if they suggested that there were rules based on precedent or congealed in conventions, on which they were experts, that a Governor General must follow, rather than institutions that can and must be made to work, if they are understood.

Hogg 's 1200 page Constitutional Law of Canada deals with the subject in a few pages that attempt to expound conventions that govern what the Governor General must do in one circumstance or another. But this shows a profound misunderstanding, that what matters is conventions and the opinions of law professors, rather than the logic of our institutions, which will show what must be done even in circumstances we have never seen or thought of, such as those that arose last week.

Anonymous "constitutional scholars" are quoted by The Globe and Mail as saying that it would have been beyond Jean's powers "to enforce any qualifications to a prorogation order". And they were wrong. If, per impossibile, she was right to prorogue parliament, she would have been right to stipulate for an early summons of a new session. She did not have to, as Harper wanted a new session called for January 26 anyway.

The Globe says the proclamation proroguing parliament did not set a date for its resumption. But it does:
Prorogation Proclamation
So much for the experts.

Wednesday, December 3, 2008

A WEEK IS A LONG TIME IN POLITICS - The 2008 projected coalition and prorogation

December 3, 2008,  Online


Minority parliaments always involve a game of chicken. Will government and opposition smash into each other in a confidence vote, likely ending a Parliament and leading to an election, or will the government veer off, dropping an unpalatable measure, or the opposition back off, abstaining, as the Liberals did several times in the last Parliament.
 As I have argued in "IS IT ALL JUST A GAME" Stephen Harper, like most politicians, has reduced politics to a game and at the opening of this Parliament he will have felt he was perfectly positioned to the run the Liberals off the road. How could they risk an election after such a poor showing in the last election and with a new leader to be picked in May? Despite musings about "uniting the left" and Harper's own dalliance with the Bloc in the 2004 minority Parliament, a coalition of the opposition seemed unthinkable. In the fatal phrase of Joe Clark, he could "govern as if he had a majority."
 Uninterested in government, Harper had Flaherty present an unexciting economic statement, perhaps unexceptionable despite the affected outrage of the opposition. The real move in the political game was the proposal to abolish the $1.95 per vote subsidy to political parties. There's something to be said for it. I'd scrap all election finance laws, subsidies, limits, tax credits, the lot. But that is not the point. The point is that the opposition parties rely on the subsidy, the Bloc particularly, while the Conservatives are flush with money from mass fundraising. There may have been polls indicating a large majority oppose giving tax money to political parties. In the game of politics such polls are much relied on but they do not show what people will think of an issue when it actually arises in a particular context. To get at that you need to think through the value of a measure for the public good, its effects on different interests and whether they may seem fair.
 It is characteristic of the shallow, the game is all, approach of Harper's team that money seems so important. They suppose their healthy cash flow is key to their success and squeezing the finances of the opposition parties will weaken them in the next election. They suppose they defeated Dion because they had the money to run ads mocking him back in 2007. Dion was defeated because he was Dion. The ads added little to the political impact of that fact. Though Dion likes to think he was a victim of attack ads.
 So Harper's talent for the game of chicken has been shown up, as will all talents when set up against competitors equally keen on the game.

"Experts" have weighed in on what the Governor General could or should do. The role of the Governor General is not a matter for experts. All that is needed to understand the role of the Governor General is a general understanding of our government, what should be general knowledge, at least for those of us who pay much attention to politics. That such general knowledge is often lacking in those playing roles in Ottawa and commenting on it partly explains why we are heading into such a mess. If such an old hand as Mike Duffy has to consult "experts" as to what the Governor General might do, she might fly to the moon.
 The Governor General's role is to see that the Queen's government is carried on. To do that she must find a government that can get its necessary business through the House of Commons. That is what is meant by confidence. A non-confidence motion amounts to a general statement that the House will not pass government business. The defeat of a particular measure, a tax bill for instance, demonstrates that the House has no confidence in the government.Usually the Governor General doesn't have to look to find a government. A party has won a majority in a general election. Or, as with Joe Clark in 1979 and Stephen Harper in 2006, the party with the most seats in the Commons is the obvious choice. Until a week ago it seemed obvious that Stephen Harper could carry on a government. Now it is obvious he can't. So the Governor General must look to see if there is another possible government, and obviously there is. It is not her job to judge whether it will be a good government or even how long it will last, a while is long enough.What if, after a defeat in the Commons, Harper asks Jean to dissolve Parliament and call an election? The Governor General is obliged to follow the advice of a government with the confidence of the Commons. When Joe Clark's government was defeated in 1979 and Paul Martin's in 2005, there was no alternative government possible with the existing House and the opposition parties wanted an election. Schreyer and Clarkson followed the advice of the Prime Ministers but they did so because without an election there could be no government with the confidence of the House. It  was not the advice but the circumstances that compelled them to call an election. Having lost the confidence of the House the Prime Ministers' advice was no longer compelling.

Today there is an alternative government in waiting and only Harper wants an election, out of sheer desperation. In his letter to Adrienne Clarkson of September 2004 suggesting that she consider the possibility of an alternative government should Paul Martin's be defeated, Harper confirmed the correct position and can't retreat from it now.

 It is reported that Harper may ask Jean to prorogue Parliament. This could get a little technical but it is enough to know that Parliament sits in sessions and to prorogue Parliament is to end a session, to put it on call, as it were, to the next session. Parliament has been routinely prorogued about a hundred times since Confederation to manage the flow of government business. But, if Harper advises Jean to prorogue Parliament, he will do it before a no confidence vote precisely because it is obvious that he will lose that vote if it is held and by asking Jean to prorogue Parliament he will confirm that the basis on which she must generally act as advised, that the government has the confidence of the House, is lacking.
 So what the Governor General should do is perfectly obvious. Only partisan panic could drive Harper's team to deny any of it and talk, quite seriously apparently, of proroguing Parliament.Even if Jean did prorogue Parliament how would it help Harper? The desperate hope would be that the coalition would crack. In how long? The uproar would likely solidify the coalition while government business was held up and civil unrest developed.
 One satisfying irony of the last week has been the general consensus that Jean could rightly refuse Harper a dissolution, as Byng did King in 1926. The effect of King's subsequent campaign of lies seems finally to have worn off.
 We may hope that Jean does the right thing. It should not be difficult. But when she was appointed she said she did not know what the job was. Presumably she knew she would hand out medals and travel about being gracious. It is precisely her job now that she was ignorant of. Can she have learned? Having spent several years presenting television programmes on public affairs she did not know how the government of her country worked or what would be her role in it. Paul Martin's appointment of someone ignorant of her role was scandalous and so was her acceptance of it. I have argued that understanding the role of the Governor General is not difficult. But it is not something that can simply be learned from a book. It requires an interest in and feel for our institutions that Jean evidently lacked on her appointment and may not have acquired since. That would effectively leave decisions in the hands of her staff, faceless, self-important bureaucrats. This is not as it should be. We are reminded what a vicious dope Paul Martin is.
 A cacophony of "experts", journalists, and interested politicians has muddied the waters in which Jean must navigate. Speculation on the technical possibilities has flourished to the extent that the preposterous prospect of a "race to the palace" in which Harper would try to get the Queen to dismiss Jean before she could take a decision against his advice has been raised.
 It is perhaps best that Jean has been abroad and missed much of the babble, though she says she has been following the situation. It is symptomatic of what has been done to reduce the office that Jean's "state visits" to Central European countries were ignored by the media even as the crisis developed. She was reported to be "travelling" in Europe until the moment when she was tracked down and it was announced she was returning to Canada.

Harper's team has been arguing that the coalition is trying to reverse the result of the election, that the Conservatives won and the Liberals lost. This is another example of politics as a game. The Conservatives won more seats, got more points, but they did not get a majority and, if the opposition parties can get together to form a majority, they are perfectly entitled to.  It is a fair point that no one voted for an Liberal/NDP coalition. But no one voted for a Conservative majority, which Harper seems to think he should be able to act as if he had.

The coalition backed by the Bloc is not trying to overturn the result of the election but to make the best of it in their interests according to their lights. It may be dreadful.  But it is democracy. Any of the 62.4% of voters who did not vote Tory have only themselves to blame if they do not like the result. These are the people you voted for, even including the Greens.

It is perhaps salutary that in this mess we are reminded that we elect Members of Parliament who are free, despite their whingeing, to do as they think best.