Governor-General, Confidence Motions, and Adscam

The kerfuffle over whether the Conservative motion was a procedural or a confidence motion is now moot. They and the Bloc are now proving that the Liberals lack the confidence of the House. I’m not as upset with the Liberals as some of my colleagues, for the simple reason is that I think the Conservatives were right that their motion was a confidence motion, and the Liberals were more or less right that it was a procedural motion. Both Andrew Heard and to a certain degree C. E. S. Franks argued that the Conservative motion wasn’t formally a confidence motion, but in effect it was.

“In effect” is important because we’re talking about constitutional conventions, which in this case are determined by the usages of the members of the House. Both sides can claim they’re invoking precedent and obeying the rules, and to a certain degree they both are. The trouble is that when it comes to conventions, the rules are made up as you go along. I don’t mean this in a cynical or an accusatory way. I only mean that, like individual habits and customs, constitutional conventions evolve over time and their meaning is by and large what its practitioners make of them.

Thus, the practitioners are going about proving that indeed the government lacks the confidence of the House, and the government is doing everything in its power, including going for haircuts (cf. Monte Solberg’s parody), to delay introducing a confidence motion (or having one introduced on them). The practitioners are “making” the constitutional convention in an appropriate manner.

Don’t confuse “making” law with judicial activism. Constitutional conventions follow the medieval and British common law understanding of “making” law. Michael Oakeshott’s example of the Marylebone Cricket Club best describes what’s going on. He observes that this private club received authority as the custodian of the rules of cricket:

merely by being acknowledged to have it…. It retains this authority in the continuous recognition of those concerned that it has it; and this authority will lapse when it ceases to be recognized. It has nothing to do with the desirability of the rules or with the constitution of the committee (On Human Conduct, p. 154n1)

In short, when it comes to constitutional conventions as we see in the rules of Parliament, the legitimacy of rules depends on the continuous acknowledgement of their authority. The same goes for their content.

This brings us to the end of the week. Via Andrew Coyne, Paul Martin has consulted with the Governor-General. He rightly points out that the newstory and the unnamed Liberal official, who says that the GG only receives advice from the PM, but tenders none, is incorrect. This is only true in the practical sense, and only in the case of normal politics, in the consideration of individual bills.

That statement is false when it comes to the reserve powers of the GG in dealing with a government whose confidence is in question. I refer you to pp. 113-4 of Patrick Malcomson and Richard Myers’s textbook, The Canadian Regime (I’ll refer you in Max West’s capable hands to consider the deeper question whether there is such a thing as a “Canadian regime.”)

They list 4 reserve powers for the GG:

1) power to name the prime minister in cases where it’s not evident that any single party has a majority or can lead a minority government. This power has never been exercised by a Canadian GG.

2) “power to dismiss a prime minister who attempts to govern without the confidence of the House of Commons.” This power prevents a PM from clinging to office when under the rules of responsible government he must resign or ask for elections.

3) power to make appointments to judiciary and Senate;

4) power to dissolve parliament and call elections. “This is another case where Governors General normally follow whatever advice is given them by their prime minister. Yet there have been occasions when the GG has refused such advice. In 1926, PM Mackenzie King, realizing that his minority government was about ot be defeated on a motion censuring the government for corruption [does anything change? -ed.], asked the Governor General, Lord Byng, to dissolve parliament and call new elections. Byng refused, and instead called upon Arthur Meighen, the Conservative leader, to form a new ministry.”

So the GG has the reserve power to dissolve Martin, regardless of Martin’s “advice.” Moreover, she has the power to appoint Harper PM. I doubt she’d do that, however. While the Byng-King affair is Canada’s most famous precedent, a more likely and more recent precedent would likely be the dismissal of Prime Minister Whitlam in Australia in 1974 (HT: Andrew Coyne). You can read the summary at Politics Watch.

The lesson that I draw from Whitlam is that the GG could dismiss Martin and appoint Harper as interim Prime Minister. In the Whitlam case, after Whitlam became an ordinary Labor MP, his party introduced a nonconfidence motion against the interim PM, Malcolm Fraser, and that dissolved the House. Fraser then won one of the largest majority governments in Australia’s history (not likely to happen for Harper). The advantage of that manoeuvre is that the Australian GG kept the power of dissolving the House in the hands of the House, even though he had the reserve power to dissolve the House himself. I should add that Whitlam seems to have had greater control/confidence of the Australian Parliament than Martin has of the Canadian Parliament. (see Observant Astronomer for more examples of confidence motions and GG activities).

Even so, I’m pessimistic she’ll act at all, and instead will be happy with Martin’s promise for a confidence vote next Thursday, instead of Monday as Harper has called for. This isn’t so much to do with her own political leanings, which have always been criticized throughout her tenure as GG. Rather, it would enable her to do what the Australian GG did in arguably a more complex situation: to let the practitioners of the House control their own fate. The end result of the Australian GG’s intervention was just that, but he had to take a more active role to push events along. Adrienne Clarkson likely doesn’t think she’d have to be so interventionist to achieve the same end, because it seems more or less clear that the Conservatives should be able to topple the government next Thursday. Harper may not have his MPs with cancer, but he may have Kilgour and Layton has offered to have his MPs abstain from voting:

However, sources told CTV News that the NDP has offered the Conservatives a so-called pairing. This would mean an NDP MP would abstain from the confidence vote next week if Conservatives lost one of their MPs because of illness.

“I wouldn’t reject it out of hand,” said Harper when asked if he would accept such a deal.

But don’t take my word for all of this, as I’m not one of the anonymous “well known and reputable” constitutional experts meeting secretly with the GG.

One final point. The Australian example has other implications for Canada. The GG’s intervention inspired a republican movement down there, and they’ve had at least one referendum on turning Australia into a republic. David E. Smith of the U. of Saskatchewan has considered the Australian republican movement and its lessons for Canada (pdf). Clarkson doesn’t want to put herself out a job, does she?

UPDATE: David Koyzis sensibly observes that the practice of having a GG appointed by the Prime Minister decreases the likelihood of her acting decisively. A limitation to looking at 1926 King-Byng is that Byng, an English noble, was appointed by the Queen and could afford to be neutral toward the Canadian situation. A true monarchic institution, unlike today’s GG which is a monarchic-republican hybrid.