Democratizing the Constitution: Reforming Responsible Government by Peter Aucoin, Mark Jarvis, Lori Turnbull. Emond Montgomery Publications, 2011. 250pp.
Is the prime minister too powerful? This is a perennial question of Canadian politics, and while it has acquired more fervour under Stephen Harper, it's a debate that goes well beyond the current incumbent or party lines. The Macdonald-Laurier Institute in Ottawa recently held a debate on the question: "Does Power Corrupt Canadian Prime Ministers?" Arguing "Yes" was the generally centre-right Andrew Coyne, who argued that prime ministers have indeed abused their remarkable powers. Arguing "No" was . . . Sheila Copps, not exactly a friend of the current government. In short, it's not just about whether one supports Stephen Harper. There's a substantive discussion about the institution itself.
A major advance in this field is the recent book Democratizing the Constitution: Reforming Responsible Government, winner of the 2012 Donner Prize for the best book in Canadian public policy. Written by the late Peter Aucoin, the distinguished professor from Dalhousie University, along with Mark Jarvis and Lori Turnbull, the book argues that these ongoing controversies are rooted in our constitutional and parliamentary institutions themselves, especially their reliance on largely unwritten conventions.
While the problem is indeed larger than any one person, Democratizing the Constitution responds to the particular climate of minority government since 2004. In the past, the debate about prime ministerial power was largely about internal control over party discipline and government policy. Prime ministers were said to rule their supporters with an iron hand, with political scientist Donald Savoie suggesting that leaders like Jean Chretien governed through random "bolts of electricity" that had turned cabinet into a mere "focus group" and Parliament into barely more than a rubber stamp. But the debate has expanded, especially under Stephen Harper, more externally to the prime minister's control over the parliamentary system as a whole. Can prime ministers prorogue Parliament at will? Do they have the right to refuse to disclose information to Parliament? These questions of course stem from specific actions by the current prime minister that have come under heavy fire from constitutional experts.
Defenders of the government suggest that this is just normal partisan griping and that Prime Minister Harper has not used his powers any more than his predecessors. For every supposed Conservative outrage, they suggest, there are Liberal equivalents. For example, Jean Chretien initiated a very dubious prorogation in 2003. But there are two problems with this response. Not only is "everyone else does it" the lowest of all possible moral/ethical arguments, but it ignores the remarkably sustained criticism from non-partisan and even nominally Conservative experts about the prime minister's actions. Regardless, Democratizing the Constitution tries to rise above this sniping and argue that whatever is going on with the Harper government is just the latest natural progression for an office and institution that lacks almost any fixed guidelines or controls.
The essence of Democratizing the Constitution is simple: we need to write stuff down. Aucoin, Jarvis, and Turnbull argue that Canada has relied too long on unwritten understandings about how things should work, more than other Westminster parliamentary systems, even including Britain. Indeed, it's quite remarkable how much of our parliamentary system works on the basis of completely unwritten rules and norms. Who forms a government after an election? We all know how it happens, but nothing is written down. What happens after a vote of non-confidence? There is no written guide, including what exactly constitutes a confidence vote. What are the duties and powers of the prime minister? Same as above; our constitutional documents barely mention the office at all.
Of course, Canadians know the answers to all of the above—or at least they used to know. The authors suggest that the long period of majority governments from 1980-2004 "gave us a kind of false security about our knowledge of unwritten constitutional conventions" (91). The string of minority governments since 2004 and an unstable configuration of four parties put the system under great strain, as everyone pushed for advantage and no stable alliances emerged. Space doesn't allow a full breakdown here, but we should include as examples the Liberal avoidance of a non-confidence vote in May 2005, the repeated Conservative arguments that coalition governments (especially if not announced prior to election day) are somehow unconstitutional, at least three unilateral prorogations since 2003, and the recent showdowns over Parliament's "right to know."
Aucoin et al suggest that the problem has two dimensions: constitutional elements (such as who should form the government, and the summoning, proroguing, and dissolution of Parliament) and more parliamentary aspects (the day-to-day operation of the House of Commons, its rights and privileges, the role of MPs, and party discipline). They argue that consensus about these rules is increasingly breaking down and prime ministers govern "in bad faith" (4), manipulating the system to suit their own partisan ends. The authors make it clear that the current prime minister has been particularly egregious in this regard; they also make it clear that their accusations apply to all prime ministers. For example, they note one prime minister who won a narrow minority and failed to convene Parliament for a record 142 days after a general election to shield his fragile government. Who was this gross abuser of parliamentary tradition? None other than Joe Clark in 1979. Again, the main problem is the system, not necessarily individuals.
So what is the solution? Looking first at the constitutional dimension, the authors note that, while Canada follows the Westminster model inherited from Britain, Canada is increasingly distinct in its reliance on unwritten rules. In contrast, New Zealand has a Cabinet Manual, which clearly lays out written rules about who should form the government after an election, what happens after a vote of non-confidence, and so on. There's nothing particularly surprising in it; it just codifies longstanding conventions equally familiar to Canadians. But others have taken closer note than us. In the run-up to the 2010 British election and expectations of a minority or "hung" Parliament in that country, British scholars and politicians alike took a strong interest in the New Zealand model—and looked at Canada as an example of what not to do.
Democratizing the Constitution urges that we follow the Kiwis and start writing stuff down. The authors propose a modest set of written rules: (1) Parliament must be summoned within thirty days of an election; (2) Firmly fixed election dates must be established, which can only be broken by a 2/3 parliamentary vote; (3) Clear guidelines governing non-confidence votes (eliminating the temptation for governments to force a showdown by arbitrarily declaring a vote to be a confidence motion) must be adopted; and (4) A 2/3 majority vote to prorogue Parliament must be required. None of these seem particularly controversial or difficult to defend, but each would have been very helpful over the last few years. Indeed, these are proposals that all parties and leaders should get behind, following the precedents already set by others.
The second set of reforms in Democratizing the Constitution concerns the day-to-day workings of our parliamentary institutions, addressing the other and longstanding concern that prime ministers and their unelected "courts" are too dominant, especially under majority governments. The authors argue that "the abuse of Parliament [in Canada] is closely related to excessive party discipline" (138). But their solutions here are more technical. They advocate establishing a maximum size for cabinet (25), secret preferential ballots for electing committee chairs who will then serve for the length of the parliamentary session, a fixed schedule for opposition days, and a 50% reduction in "the partisan political staff complement on Parliament Hill" (it's not clear if this includes Members' staff or not). They also advocate allowing party caucuses to dismiss the party leader, and to remove leaders' veto over local party nominees.
I don't necessarily oppose any of these, but I am reminded of C.E.S. Franks's 1987 assertion that "the reform of Parliament is not simply a technical matter." While Democratizing the Constitution doesn't claim these new rules will somehow fix everything, it's not clear how they will get at the underlying heart of the matter. After all, what exactly makes party discipline "excessive"? The reasons for party discipline and the underperformance of Parliament are rooted in deeper expectations and roles that can't be easily changed. For example, recall that in October 2002 a dramatic Commons vote was held to elect committee chairs by secret ballot, but it ultimately had little effect. Similarly, while the McGrath reforms of 1985-1986 gave a boost to the committee system, they fell far short of expectations. In short, technical changes can be ineffective if they do not affect the underlying attitudes and forces that are the real reasons for party discipline and strong Canadian prime ministers. This is not to say the above aren't sound suggestions, but I'm skeptical about their impact (or in the case of dismissing party leaders, their chances of adoption).
On the other hand, there's no doubt that the main argument of Democratizing the Constitution—to codify our most important unwritten constitutional conventions—is sound, timely, and essential. Aucoin, Jarvis, and Turnbull have contributed a major advance here, joining other experts who genuinely want to avoid a return to the string of controversies and crises of the past few years. There is no partisan agenda here; merely a desire to avoid further breakdowns. We will never stop debating whether prime ministers are too powerful. But we can at least write down a few rules for the game.