A few words about Parliament: There are a diversity of views in the academic and political worlds about what we learned about our system of government in the late fall of 2008. Here is my view. I believe the Prime Minister committed a gross act of disrespect toward the House of Commons on December 4, 2008.
The House of Commons is the only elected institution in Canada's federal government. Unlike the Senate, the Governor-General or the prime minister and his retinue, the House is a democratic institution, our only federal democratic institution.
It was therefore entirely inappropriate, democratically illegitimate and improper in 2008 for Mr. Harper to direct an appointed official, the Governor-General, to instruct the majority in the House of Commons on when it can sit or what business it can conduct, so that the Prime Minister could avoid a confidence vote.
The friends of the Governor-General's conduct will reply, fairly in the circumstances, that she must do as she is told by the prime minister.
The prime minister holds his office because he commands the support of the House of Commons. Harold Wilson, the former prime minister of Britain, had a great deal of experience in minority Parliaments. In his book The Governance of Britain, he wrote: "The prime minister and his cabinet are accountable to Parliament. They have no fixed term of office, such as that of an American president, who is secure for four years though perhaps legislatively impotent for part of that time. They survive as a government just as long - not a day longer - as they can count of the support of a majority of Parliament, however small that majority may be."
That is our system of government. The prime minister must respect it. And so if it is true that the Governor-General must do the prime minister's bidding, then a heavy responsibility lies on the prime minister to tender "advice" to her that is appropriate, democratically legitimate and proper.
What kind of government are we drifting into, if the precedent set in the fall of 2008 is permitted to stand? A kind of plebiscitary Napoleonic system. At a time of his own choosing, our ruling Napoleon calls an election on such issues as he feels appropriate; the people vote; if a plurality gives the ruler their support then the mandate of heaven is conferred and no one may question His acts until He is prepared to call an election again.
Ours would be an extreme form of what Quintin Hogg (Baron Hailsham by then) famously called "elective dictatorship" - the basic fault of the Westminster model when it is governed by an artificial majority engineered by the deficient first-past-the-post electoral system.
So what is to be done?
All proposals for fundamental institutional change - for example, replacing the Governor-General with a legitimate, accountable president elected by the House of Commons - founder on the impossibility of amending the current Canadian constitution without the consent of provinces, who will want more power in the bargain. It therefore falls to the House of Commons to defend Canada's only national democratic body within the current rules.
Here are two things I submit it could do: First, the House of Commons could and should legislate to direct the prime minister to never provide advice to the Governor-General that interferes with the functioning of the House when a confidence motion is before it. This would hopefully make it more difficult for a prime minister to avoid democratic accountability to the House of Commons through a politically illegitimate and improper use of the Royal prerogative.
Second, the House of Commons could (and I think should) legislate that confidence votes must come in one of two forms. Option A: the government is defeated and an election is called. Or option B: the government is defeated and immediately replaced, at that moment, by a new one, specified by the House of Commons in its confidence vote. Subject of course to final approval by Her Majesty, as represented by our Governor-General, who in these circumstances will hopefully be more attentive to the views of the House of Commons.
By making the intention and consequence of confidence votes explicitly clear like this, less room will be left for prime ministers and their ciphers to make mischief with the constitution or our democracy. The House of Commons can either dissolve itself and take its discontents to the electorate, or it can poleaxe the prime minister and his hand-picked cabinet and install another more to its liking - a constructive vote of no-confidence.Report Typo/Error
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