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The Peace Tower on Parliament Hill is framed by the iron gates on Sept. 16, 2009. (Sean Kilpatrick/The Canadian Press)
The Peace Tower on Parliament Hill is framed by the iron gates on Sept. 16, 2009. (Sean Kilpatrick/The Canadian Press)

Brian Topp

How to reinforce Parliament's authority Add to ...

Inexplicably, the House of Commons Standing Committee on Procedure and House Affairs (a smiling, good-natured group of MPs from all parties, who are otherwise serious about their work) invited me to speak to them today about prorogation, confidence votes, and what to do about reinforcing Parliament's authority. Here, more or less, is what I said:

In a past life one of my duties, for five years or so, was to oversee the government of Saskatchewan's House Business Office ­­-- the support arm to our government House Leader. This modest credential gives me some small, well-disguised sympathy for the government members sitting in the minority on this committee. You don't always have an easy job, I suspect.

I've been active in federal politics with the New Democratic Party of Canada during the past three elections. But I should add that what follows are strictly my own views, and in no way represent those of our party, our leader or our caucus.

I would like to speak about two topics -- the substance of the matter; and then the issue of implementation.

So, about confidence votes and prorogation.

And then about the issue of what should be done to address these issues. Should the standing orders be amended? Should a new Parliament Act be adopted? Or should the constitution be amended?

***

In my view the power to declare or withdraw confidence is THE fundamental power of the House of Commons.

There are other critically important powers, like the right to originate money bills.

But the right to assign and withdraw confidence in the Ministry is the crux of the matter -- the central act of legitimacy and political power in our political system between elections.

This being so, subordinate or unelected players must not interfere in its exercise. I refer here to the Cabinet, to the Senate, and to the Governor-General as well as to the Courts.

To do so is to attack responsible government in Canada at its root.

It is therefore my view that the Crown should and must never again seek to interfere in the sitting of the House of Commons when a confidence vote is properly before it.

I understand that a number of relatively complex proposals have been made by Parliamentarians on this subject.

I urge you to clarity and simplicity.

I suggest you find a way to say that when a confidence vote is properly before the House, the House cannot be prorogued or otherwise interfered with. In any circumstances. For any reason. By anyone. Until that confidence vote has been dealt with.

This committee is asking itself some broader questions about the right of the Crown to prorogue the House, even in circumstances when there is not a confidence vote before it.

I offer the same advice -- keep it simple, so that "penalties" and "consequences" don't become acceptable costs of doing business.

If you feel the need to pass rules on the broader issue, I suggest you establish that the Prime Minister shall not advise the prorogation of the House without a prior authorizing vote by all MPs. Ever, in any circumstances, at any point in the Parliamentary calendar.

***

Let me say a few words about confidence votes.

It has generally been understood that if the government is defeated on a money bill, it has lost confidence. But both Prime Minister Pearson and Prime Minister Martin arguably suffered defeats in the House that resemble this, and remained in office due to clever manoeuvring.

It is also, unfortunately, longstanding practice in the Canadian Parliament for the government of the day to point to whatever it wants to and to declare that matter to be a "confidence vote". A form of political blackmail that neatly reverses the purpose of such votes, and turns them from an exercise in accountability into an instrument for the reinforcement of executive power.

If we are going to say that the House cannot be prorogued when a confidence vote is before it, then a definition of what a confidence vote is seems called for.

I suggest the following:

A confidence vote should be defined as a motion -- a privileged and important motion -- proposed by a Parliamentarian to immediately end the mandate of the sitting government, and to then trigger one of two outcomes.

• Either a Loyal Address to the Governor-General respectfully requesting that she authorize an election.

• Or a Loyal Address to the Governor-General respectfully requesting she immediate replace the Ministry with a specified alternative Ministry.

Governments, of course, would always remain free to resign or to threaten to do so, over any issue they like.

For an example of how this could work, I refer you to article 67 of the German constitution.

This mechanism -- a "constructive vote of non-confidence" -- worked smoothly in October 1982 to replace a Social Democratic government led by Helmut Schmidt with a Conservative one led by Helmut Kohl.

Spain has a similar provision in article 113(1) and article 114(2) of its constitution.

And Hungary has a similar provision in article 39A(1) of its constitution.

***

Which gets us, briefly, to the issue of implementation.

Standing orders, a bill, or a constitutional amendment?

I see that the committee has spent some time pondering the issue of enforceability, which is central to the question of what form to use.

I suggest you not worry about that overmuch.

If you legislate clearly and without complexity, escape hatches or weasel words, I think you are then entitled to expect the Prime Minister and the Governor-General to govern themselves accordingly.

In other words, I agree with Thomas Hall [an earlier witness before the committee]that if the rules are clear, the Governor-General at least can be expected to abide by them.

If this proved not to be case, fundamental issues about the office of the Governor-General and the future of the Crown in Canada might then arise. I think you can expect the Governor-General to be mindful of this.

That being so, my advice is to both immediately amend the standing orders, AND to introduce an appropriate Parliament Act to enshrine these principles is law.

I suggest immediately amending the standing orders, because the present Ministry probably cannot prevent you from doing so.

I suggest introducing appropriate legislation, to make these rules less vulnerable to a future act of executive power by a majority government or a majority combination.

I doubt that such a law will be adopted by the present Parliament, given the current majority in the Senate. But I suggest that that it be introduced, and that all parties of like mind commit to reintroducing it each and every session until it is adopted, in its own good time.

When, at some point, the circumstances before us today come to an end, I suspect the odds will improve that an appropriate amendment will be adopted.

Until then, the majority in the House can, should, and must speak clearly and authoritatively -- something you can do through the standing orders.

That is a moment I urge this committee not to miss.

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