HARPER'S GAME AND THE QUEEN'S GOVERNMENT

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.

POSTSCRIPT

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.