So, let’s start the week with a provocative question: Is Canada a democracy?
A couple of weeks after the Prime Minister of Canada ‘advised’ the Governor General to prorogue parliament to avoid a no-confidence vote he was nearly certain to lose, he is now set to ‘advise’ Her Excellency to appoint several members of the federal Senate.
Presumably she will accept her adviser’s advice, and so a government without a mandate to govern will stack the upper house with allies, who hold their seats to age 75.
David Christopherson says this is “clearly undemocratic.”* I can’t disagree. But is it within the bounds of Canada’s constitution? That’s at best “questionable.”
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* Granted, David Christopherson is not an unbiased observer; he is the member of Parliament for Hamilton Centre and the NDP critic for democratic reform. I suppose the fact that Canadian opposition parties have “critics for democratic reform” could remain evidence that Canada is still more democratically healthy than its neighbor to the south.
You really need to look at it as two separate questions. The proroguing, while arguably a positive thing for cooling tempers, can easily be argued as an incorrect decision and a poor interpretation of the constitution. But having made that decision, there is nothing wrong with the senate appointments, legally speaking. The NDP can speak out against the *concept* of the Senate, but they can’t claim some new shady practice beyond the already shady proroguation.
Seed planted by Cameron MacLeod — 23 December 2008 @ 02:41
I don’t think Harper’s move is really undemocratic: his government will still face confidence votes in the House when business will resume, and there will be plenty of opportunities for Canadians to express support for Harper or for his opponents, especially if there is an election in 2009, which is plausible.
This said, the fact that Senate appointments are irreversible does present a problem in that governments who tenuously hold the confidence of the House can strengthen their position by appointing senators, and even if they later lose scheduled confidence votes, what they’ve done cannot be undone.
I’ve heard it suggested that since Harper asked the Governor General to prorogue parliament in order to avoid a confidence vote, his government has been ruling in an interim or caretaker capacity, until it either proves it has the confidence of the House or another government is appointed. If this position was constitutionally defensible, we could argue that Governor General Jean should refuse to appoint new senators — caretaker governments aren’t supposed to take serious decisions — until these appointments can be confirmed by the House (which they certainly wouldn’t be with its current composition). I’ve read in a few threads here that there is precedent for a Westminster-style Head of State (or stand-in for the Head of State) asking a prime minister to prove they hold confidence before following their advice. Would it be possible to make this argument here?
Seed planted by Marc — 23 December 2008 @ 04:14
Is Canada a democracy? Canada’s current political drama is the result, in part, of a perceived inability to amend the constitution. And that perception is linked to the on-going threat to its territorial integrity presented by Quebec separatism.
Supposedly, any attempt to reopen debate about the constitution would lead to new demands from Quebec. Failure to meet those demands then leads to renewed support for separation and calls for another referendum.
I would argue, however, that the separatists often point to Canada’s supposed inability to reform itself as a reason to leave it. Successful constitutional reform would reduce separatism.
But how can we ensure successful reform? Maybe we should start by using citizens’ assemblies rather than relying on executive federalism (in Canada, this term means deal making between federal and provincial government leaders) to come up with proposed reforms.
Any reasonable person would agree that the Senate needs to be reformed or abolished. At least the current government openly acknowledges that.
And if you think that the PM’s appointment power is the worst thing about the Senate, please take a look at the way the seats are distributed among provinces. For example, British Columbia (pop. 4.4 million) has six Senate seats, while New Brunswick (pop. 750,000) has ten.
And while other democracies are also constitutional monarchies, at the very least the current method of selecting the Governor General (and the lieutenant governors) needs to be reformed.
But I would point out that the worst thing about Canada’s political system is something that does *not* require a constitutional amendment, and that is replacing FPTP with PR.
Seed planted by Doug — 23 December 2008 @ 15:18
Wyoming has 522 thousand people and two US Senators, while California has 36.5 million people and two US Senators. By that standard, the malapportionment of the Canadian Senate indeed seems a lot less a problem than its appointment by the federal executive.
Of course, I agree entirely that the Canadian Senate should be significantly reformed or abolished. I frequently argue the same about the body on this side of the border.
Also, in one of the previous prorogation threads (click “Canada” in the “planted in line” to get them all on one page), I argued in favor of the post-prorogation Harper government being treated as a caretaker. However, by all accounts it is not.
Welcome to the planter’s circle, Cameron, Marc, and Doug. I hope we’ll be seeing you here regularly!
Seed planted by MSS — 23 December 2008 @ 16:39
Hello Professor Shugart,
Even regarding the House of Commons, it became my opinion that its democratic character is disorganized at best, once I learned about the rules for allotment of seats. Prime Minister Harper recently announced that enough seats would be added to the House so that all provinces, with the exception of the minuscule and chronically overrepresented Prince Edward Island, would be represented approximately proportionally in the House.
I’m wondering if you have any opinions regarding bicameral legislatures in general.
I tend to favour reform over abolishment, although I think the latter is more likely in Canada.
Seed planted by Randy — 26 December 2008 @ 05:53
Randy, that sounds like the “Wyoming rule” as applied north of the border!
Seed planted by Tom Round — 26 December 2008 @ 09:19
Indeed it does, Tom.
In Canada’s case, however, the reasons extend beyond guaranteeing each province at least 1 seat.
Prince Edward Island is guaranteed to have at least 4 seats in the House of Commons as a condition of its entering confederation in 1873. There is another condition which says that no province can have fewer seats than it did in 1976. Each province must also have at least as many seats in the House as they do in the Senate.
279 seats are distributed according to representation-by-population. Then most provinces receive extra seats so that the above-mentioned conditions are satisfied. Each of the three territories also receives 1 seat.
Upon reading other’s comments (it was late when I made my first one, I have realized two things.
(1) I repeated some things that other commenters made. Sorry about that.
(2) Nobody has mentioned that Prime Minister Harper has been trying reform the Senate to make it more democratic and representative, reducing the power of the prime minister to make the appointments he just made. The appointments were made in hopes facilitating this process (well, so he says).
Seed planted by Randy — 26 December 2008 @ 17:57
Australia guarantees each state 5 MHRs and an equal number of senators (currently 12 with 6 retiring every 3 years) with other states. The constitution fixes the minimum number of MHRs for an original state but says nothing about the total size of the house or the minimum representation of new states. Canada could always pirate Chapter II of our constitution as well as the New Zealand Cabinet Manual.
The average enrolment in Tasmania, the smallest state is 56 465. In New South Wales, the largest state, it is 86 578. Strangely enough Victoria, the second largest state has average enrolments of 89 454. The margin of allowance for electorates is 10% and, unlike Canada, there are no exceptional circumstances. Perhaps Canada really, really needs an equal representation of provinces in the senate so it can have equal representation of citizens in the house.
All three large and varied federations might do better to use the Shugart number as their electoral quota for the house.
Seed planted by Alan — 26 December 2008 @ 18:19
Well, Australia did pirate large chunks of the BNA so maybe it’s time for the Canadians to exercise their right of reprisal. (“The trade, the commerce, and the intercourse among the States, she shall be free absolutely.”)
I am not a fan, myself, of the Wyoming rule. As a resident of Australia’s most populous State, I would rather give Tasmania one more MHR than it deserves on a strictly pro-rata basis than expand the House of Reps from around 150 seats to around 188 just to make the national quota 20% of Tasmania’s population.
(Actually I do favour expanding the number of MHRs to more like 200 – but because of the total population of the Commonwealth, not because of the population of the least-populous State. If a polity had a much larger number of legislators – say, 600 or 700 – it could be extremely disruptive to raise this to 800 just because the relative population share of Tasmania, Wyoming, PEI, Saarland, Isle of Man, etc had declined.)
The Wyoming Rule might work better, not as an absolute floor, but as one of several possible House sizes of which not the largest but the second-largest number prevails. (Eg, “The number of Representatives shall be the second-largest of the following: (1) 75. (2) 750. (3) Nation’s population divided by [say] 250,000, result rounded off. (4)Nation’s population divided by population of smallest State, result rounded off.”) So the Wyoming Rule could push the total US House size up to 750 – but not over it.
Seed planted by Tom Round — 26 December 2008 @ 18:56
Australia’s Shugart number is 278. That would give an average enrolment of 77494, somewhat smaller than the actual average enrolment. Tasmania would still get its constitutional minimum. Canada’s is 322. The US’s is 673.
Of course if you followed the Polish apportionment proposal for the EU, which would mean calculating a Shugart number for each member state…
Seed planted by Alan — 27 December 2008 @ 03:05
Wasn’t the Polish proposal to have EU seats distributed in proportion the the square root of the population, rather than the cube root (ie. Shugart number)?
Computing cube roots or square roots is a negligible task, if you happen to have a computer handy. The hard work is collecting the data from which to compute the roots, and convincing people to distribute seats according to the square root law.
Seed planted by Randy — 27 December 2008 @ 05:22
The material put out by the Polish foreign ministry speaks about the square root, but the numbers they supply are clearly not square roots.
Seed planted by Alan — 27 December 2008 @ 05:50
Personally I don’t see any need to reform Canada’s Senate — abolish the sucker! Upper houses, in general, are meant to stifle democracy. Some of the various Australian upper houses actually can veto any legislation from the lower house (for an example of how this worked in practice see Tasmania in the 1960s when the upper house repeatedly blocked attempts to remove homosexuality from the criminal code). Upper houses are descended from the House of Lords. Canada faced a Constutional crisis in 1990 when the largely Liberal Senate refused to pass the Conservative government’s federal VAT plan (the GST). With the assent of the Queen, Mulroney created and filled 24 new Senate seats in a month and passed his bill. Unconstitutional? No, just a replay of England’s 1832 Refom Bill crisis when the Prince Regent agreed to create as many Whig peers as necessary for the government’s bill to pass. Having replayed that episode, Canada now moves on to re-enacting the Crisis of 1910 – 1911.
Seed planted by CCBC — 27 December 2008 @ 06:13
There’s one argument in favour of upper houses and it’s a strong one (pdf) in a world where delegated legislation grows more important every year.
I’m probably somewhat biased because (by most standards) our STVPR senate does a much better legislative job than our IRV house.
Seed planted by Alan — 27 December 2008 @ 10:43
It seems like another way of addressing that concern would be to move to constructive votes of no confidence. Anybody know if Germany’s lower house is willing to vote down legislation proposed by ministers more often than in most countries?
I tend to favor unicameral legislatures, just for simplicity’s sake.
Seed planted by Chris G — 27 December 2008 @ 15:56
Hi Alan,
Can you provide a link where I can find Poland’s numbers?
Seed planted by Randy — 28 December 2008 @ 14:35
The Poles are not actually proposing Shugart numbers (new discovery). Their formula applies a divisor to population before calculating the square root.
Seed planted by Alan — 28 December 2008 @ 19:30
Is Canada a democracy?
Yes. And I believe under most people’s definition, too. That doesn’t mean there aren’t democracies for which I have little respect, or portions thereof. Including Canada’s Senate, Confederation’s Great Mistake(TM).
As for it being ‘clear’ that the house would have voted no-confidence, I now think it is anything but, based on what I’ve read, and based on conversations since.
In the last two weeks, I’ve spoken to a dozen Liberal MPs, half of whom say off the record that they would have not supported non-confidence, or at least would have suddenly gotten a 24-hour flu. Not surprisingly, they were also big Iggy supporters.
So, this blows big holes in my original post that the Liberal partisans would go for the power grab without much grumbling. It turns out that there was a lot of grumbling, although it had more to do with the struggle for leadership than the struggle for government.
As for the question of the caretaker status, I suspect that proroguing cast the die – if the GG accepted the PM’s advice to prorogue, then he wasn’t a caretaker.
And so now, based on my digging within both the Tory and Grit caucuses, I’m going to reverse my original position. Hindsight is 20/20, after all.
1) Harper choosing proroguing was preferable to requesting dissolution (as I said before), but…
2) calling the opposition’s bluff, although risky, was even more preferable, avoiding the need for the GG and any controversy
3) Why? Because proroguing caused controversy, and I now believe that the house would not have voted no-con, which means the GG would never have to go near any controversial decisions.
And this means that Harper badly miscalculated, again. The Liberal’s were not solid, because Iggy didn’t want Dion to become PM at all costs. If he risked non-confidence, the Liberals may have backed off, giving Harper everything he wanted. If they didn’t, the ensuing coalition might not have lasted more than a few weeks anyway.
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Regarding constitutional amendment, I maintain that it is impossible, because the risks come from many sides, not just Quebec. For instance, the courts’ extreme position on native rights has complicated confederation immensely since Meech. It is doubtful that any amendment is possible without assent from hundreds of bands, which would never happen without massive decentralization. At present, Canada is barely governable, and even less amend-able.
Seed planted by Ross Trusler — 28 December 2008 @ 20:54
Ross
That’s interesting, but you’re inviting the governor-general to second-guess what MPs may or may not decide. Almost every published authority says this is precisely what a governor-general must not do. Once the governor-general starts second-guessing MPs then you have an activist head of state who is inevitably drawn into party politics.
Caretaker status is determined by the prime minister’s support in the house, not the viceregal residence. A caretaker prime minister is one whose support in the house is uncertain, not one whose advice to the governor-general is rejected.
The governor-general’s decision to prorogue the house is at least arguable. Her failure to ask the prime minister to observe the caretaker conventions is not. MPs (I refer to the possible Liberal absentees) are accountable to their electorates. They should not be evading that accountability by sheltering behind the governor-general. The issue is not what couldabeen or mightabeen. The issue is that there were reasonable grounds, from signed statements by MPs, to show that the prime minister could not command the confidence of the house. Harper’s own public statements confirmed his contested (and therefore caretaker) status. So, we can presume, did his unpublished advice to the governor-general.
The motive for prorogation, which among other things suspended the parliamentary budget process in a time of economic crisis and prevented Canada meeting its G20 undertakings until at least the end of January, was precisely Harper’s own uncertainty about whether he could command confidence. In that context it was bizarre to treat him as a full prime minister with the right to make new appointments and policies.
The Senate appointments, it is clear, are being made now only because Harper fears that he will not be able to make them once parliament resumes. There could be no better argument than Harper’s own actions for judging if the caretaker conventions should apply.
Constitutional conventions get judged by their effectiveness in upholding constitutional democracy. Treating a prime minister whose confidence in the house is, as proved by his own actions and statements, in doubt as though it were not in doubt does nothing to uphold the constitutional order and undermines the supremacy of parliament.
Seed planted by Alan — 28 December 2008 @ 21:26
Alan, I’m in general agreement, except your first paragraph:
“That’s interesting, but you’re inviting the governor-general to second-guess what MPs may or may not decide. ”
I’m arguing for precisely the opposite. I’m saying the PM failed to second-guess the MPs, which would have avoided ever having to involve the GG.
Originally, long long ago, I lauded the PM for neither asking for dissolution, nor risking a non-confidence motion, leading to the GG possibly asking a lame-duck LO to form government.
The rationale here is that both of those options put the GG in a more difficult position than proroguing.
They risk the GG having to consider ignoring her PM, which I’ve discussed before. Or taking her PM’s advice because the OLO was in disarray, risking appearing partisan (i.e., second-guessing). Or asking an LO to form government that lasts only a couple weeks, making her also appear partisan, and a form of King-Byng redux (also deviously second-guessing, depending upon your political stripe).
We may not agree on these points, but I think it moot now.
What did happen is that the PM chose door #3, proroguing, and it was granted by the GG. As you say, an arguable position, yet as we all know, problematic. It turns out that there was a credible door #4 after all: defeat of non-confidence motion. Some Grits knew this, but no one else did, including Harper.
So the PM guessed wrongly, not believing that Liberals wouldn’t split on the motion. Ironic since it not only would have left the GG entirely out of the affair, but it also would have been an excellent political outcome if you’re the PM.
I’ll still give the PM points for at least having the decency to not ask for dissolution (and an attempt at majority), but he blew it overall, in most ways that count.
The LO’s actions now look even worse though. Dion broke convention in making a direct appeal to the GG, risked putting the GG on the spot, lent legitimacy to the Bloc, lent hope to NDP voters, managed to hasten his departure, and now apparently would have lost his NC motion anyway. I don’t think I’ve ever seen a more stupid political move.
All in all, neither made good choices, and neither fared well for it.
Seed planted by Ross Trusler — 29 December 2008 @ 15:51
Ross
My problem is that you keep discussing the outcomes of the governor-general’s decision as though they justified that decision. For example, that the prorogation were legitimate because several Liberal MPs may or may not have absented themselves from the vote. That is vicegeral second-guessing. Later anonymous conversations where MPs don’t have to answer to their electorates do not legitimate the prorogation. The way to test parliament’s confidence is for the prime minister to meet the parliament.
You also argue that it is a crisis if the governor-general refuses the advice the prime minister, although again without any authority except discussing potential outcomes. The necessary effect of that idea, if it were a convention (I can find no opinion that supports it) is that the governor-general should avoid any decision that appears to disadvantage the prime minister. In any case I’ve shown from what happened in Britain in 1974, in Tasmania in 1988 and Queensland in 1989 that it’s entirely open to the governor to ask that particular advice not be given.
Your view has been heavy contested by a number of people, including former Governor-General Clarkson. Their views are best expressed by Andrew Heard:
There is no convention that the leader of the opposition, or any other MP, cannot appeal to the governor-general. There is a convention that the leader of the opposition cannot see the governor-general without the prime minister’s consent. In 1975, for instance, the governor-general sought the prime minister’s consent to see the leader of the opposition so that he could discuss the parliamentary situation with him. I’d invite you to show some authority for the proposition that appealing to the governor-general violates any convention.
The overall impact of the position you’re arguing is that parliamentary supremacy gets significantly weakened and the accountability of the prime minister to the parliament is, as Heard says, almost abolished. Those outcomes may be convenient to prime ministers but they cannot be called democratic.
Seed planted by Alan — 29 December 2008 @ 20:10
The 1975 case was Kerr in Australia.
Seed planted by Alan — 29 December 2008 @ 21:33
Absent any written reasons being issued for the Governor General’s decisions, we have to try to construe them.
Very often it has been said that only votes cast in the House are binding, not letters or petitions to Her Excellency. On that view, the government has the confidence of the House until the House votes otherwise, and the government therefore has the right to prorogue, appoint senators, or anything else. Well, provided it meets the House somewhat promptly, not try to prorogue for 11 months.
But while it seems constitutional, shutting down parliament is by definition undemocratic, eh? And then appointing 18 Senators — three nice headliners and 15 party fundraisers and apparatchiks — doesn’t smell very democratic either.
But once the House votes, it’s a very different story. The motion before the House when it was prorogued stated: “this House has lost confidence in this government and is of the opinion that a viable alternative government can be formed within the present House of Commons.”
When the House votes such a motion, at least within six months after an election (nor is 18 months an unreasonable suggestion), Stephen Harper cannot really expect the Governor General to grant him a dissolution and a very early election. That’s why he risked ridicule by filling those 18 Senate seats: it’s now or never time.
Now, as Canada digs out from the holiday news freeze and snowstorms, we begin to wonder: what choices does Michael Ignatieff really have? In today’s Globe and Mail, the normally sensible Liberal guru Tom Kent advises the Liberals to start abstaining again:
“Mr. Ignatieff can lay Liberal arrogance finally to rest. He can replace it by common sense. . . We face prolonged uncertainty about jobs and incomes, about prices and savings. Adding political uncertainty to the mix could only worsen our economic troubles. . . Further outrages would compel the coalition to defeat the government. But short of those, it should be held accountable not through daily debate and polling, but after enough time for the people to remake their electoral assessment. The Liberal Party, meanwhile, will probe, question, suggest; and if the government nevertheless introduces measures that Liberals cannot support, they will as a party abstain.”
Given that Stephane Dion destroyed his credibility by abstaining or voting with the Conservatives 43 times all during the fall of 2007 and all of 2008, fearing an election he was not ready for, will Ignatieff really repeat that strategy?
Seed planted by Wilf Day — 07 January 2009 @ 02:37