Op-Ed by Duff Conacher, Coordinator of Your Canada, Your Constitution, February 5, 2021
For more than a decade, huge controversies have swirled around arbitrary decisions by the Prime Minister about the operations of Parliament, and by premiers about provincial legislatures. The decisions have almost always been aimed at unfairly helping the ruling party, advancing the Prime Minister or premier’s agenda in the face of strong opposition, or escaping accountability.
The examples are numerous: the arbitrary shutting down of the Parliament by the Prime Minister in 2003, 2008, 2009, and the shutting down of the legislature by the B.C. premier last May, and by the Ontario premier last October; the failure of the premier of Newfoundland and Labrador to open the legislature for months after the 2011 provincial election; the calling of snap elections by the Prime Minister in 2000 and 2008 (the latter after the Prime Minister had pushed for and enacted measures to fix the next election date for October, 2009); the designation of many bills as votes of confidence by the Prime Minister from 2006 to 2011, even though such bills had never been confidence matters in the past; and omnibus budget bills that force MPs to vote on many unrelated bills at the same time.
While it’s less surprising when these pre-emptory decisions occur in majority governments, they’ve appeared during minority governments and after elections when it wasn’t clear which party or coalition of parties had the mandate to govern.
In all cases, either the Governor-General appointed by the Prime Minister, or a lieutenant-governor appointed by a premier or the speaker of the legislature, has been put in the impossible situation of trying to say no to the Prime Minister or premier. And, the power of the Governor-General or lieutenant-governor to say no isn’t even clear – constitutional experts in Canada are fairly evenly split on whether this power exists in any situation.
And while the speaker of the legislature has the clear power to say no, the speaker, like the Governor-General and lieutenant-governor, can only point to unwritten rules known as “constitutional conventions” in saying no – hardly a strong basis for defying the elected leader of the ruling party.
So, none of them have said no to these arbitrary decisions for decades, and the ensuing controversies about their decisions have been left unresolved, with constitutional experts arguing about whether the unwritten constitutional conventions were followed or violated like so many philosophers arguing about how many angels can fit on the head of a pin.
In other words, while prime ministers and premiers have faced varying political costs for their decisions, they have all gotten away with it.
Do these kinds of decisions happen in other countries? Mostly no, not even in parliamentary democracies. In most countries, the rules on the operation of the legislature are clearly set out in either the country’s constitution, a law, the rules of the legislature, or in written constitutional conventions.
The U.S. Constitution fixes federal election dates for every two years for the House, four years for the President, or six years for the Senate – the President can’t just call a snap election whenever he wants. The U.S. President also does not control the opening or shutting down of the House or Senate between elections.
The leading parliamentary democracies of Britain, Australia and New Zealand have all written down the convention rules into what are called “cabinet manuals” that cover these and many, many more decisions by their prime ministers, cabinets and legislatures. All reports are that these written rules have made their legislatures and governments operate more fairly, effectively, democratically and accountably.
It was not surprising when 84 per cent of 2,013 adult Canadians informed of these facts in a recent survey by Your Canada, Your Constitution and conducted by Harris/Decima said they wanted these powers of the Prime Minister and provincial premiers restricted with clear written rules that can be enforced. A large majority of support for these changes was expressed by every category regardless of province, age, sex, income, educational level, work, income or marital status.
The question is, will the Prime Minister, premiers and party leaders across Canada respond to this national consensus and finally write down these key democratic government rules to ensure that they can be clearly held accountable if they violate them?
Given the survey results, it is clear that any political leader who takes steps to get the rules written down will be applauded by almost every Canadian.
This Op-Ed was published in the Globe and Mail.