Confidence game: playing fast and loose with parliamentary conventions has weakened responsible government.

Author:Levy, Gary

Canada has been governed under responsible government for 160 years. It came to Nova Scotia in 1848 and--thanks in part to leaders like Robert Baldwin, Louis-Hippolyte LaFontaine and Governor General Lord Elgin--to the old United Province of Canada a year later. However, if the parliamentary crisis of December 2008 is any indication, we have still not mastered all the subtleties of this very sophisticated form of government.

The prorogation (suspension) of the 40th Parliament on December 4, after it had sat for only 13 days and with a motion of nonconfidence pending, raised a number of important questions about our institutions:

* Did the government breach any fundamental, albeit unwritten, principle of constitutional behaviour?

* Was the Governor General correct to accede to the Prime Minister's request to prorogue in such circumstances?

* Was the opposition irresponsible in seeking to replace the government just two months after an election?

Many answers to these questions have been offered. But the fact that Canada found itself in this position in the first place raises a more profound question: Do we have a political class capable of sustaining Westminster-style responsible government for another 160 years? Considering what has gone on in Parliament for the last five years, one can only wonder.

The events of December 2008 are part of a longer story about failure to adapt our institutions to the recent spate of minority parliaments which began with the election of 2004. Successive leaders have played fast and loose with some basic conventions of parliamentary government, and it was only a matter of time until there was a political explosion. (1)

Origins of the crisis in the Martin minority government

The story begins in April 2005 when Prime Minister Paul Martin, facing the possible defeat of his minority government, addressed the country and, in an extremely unusual step, promised to call an election within 30 days of the final report of the Gomery Commission. Tying the calling of an election to an external event was unprecedented. It outraged the opposition, which reacted by trying to use one of its upcoming opposition supply days to introduce a nonconfidence motion.

The Martin government responded by postponing every opposition day until late May, and even cancelling one such day that had already been designated. It used the extra time to continue negotiating a deal with the NDP and a few independent MPs for their support in return for changes to the budget. The opposition Conservatives kept up the pressure by trying to attach a nonconfidence motion to a committee report.

This series of events led to "The Curious Case of May 10, 2005," as Professor Andrew Heard of Simon Fraser University called it. After much procedural wrangling and speaker's rulings, a vote was held on a nonconfidence motion attached to a committee report. It passed, with 153 in favour and 150 opposed. The government ignored this, claiming it was a procedural motion. Professor Heard, among others, concluded that by any meaningful definition this had been a valid nonconfidence vote:

All three opposition parties had stated well in advance that they believed this vote to be a test of confidence. While the wording was convoluted the content still clearly inferred that supporters of the motion were in favour of the Government's resignation. (2) The government did hold a second and "definitive" confidence vote nine days later, after it had persuaded Conservative Belinda Stronach to defect in return for immediate appointment to cabinet. Thanks to Stronach's vote the government survived, with the Speaker's casting vote breaking a 152-152 tie.

Confidence was still very much on the minds of members as the House prepared to resume the next fall. In fact the three opposition party leaders, Stephen Harper, Jack Layton and Gilles Duceppe, wrote to the Governor General suggesting that they were prepared to form a government if she received a request for dissolution from Martin.

When the House resumed in September 2005, the government once again postponed opposition days, this time until mid-November. On the first opposition day, November 21, an NDP motion was carried by a vote of 167 (representing all three opposition parties) to 129. To avoid a Christmas campaign, it called on the Prime Minister to wait until the week of January 2, and then ask the Governor General for an election to be held on February 16.

The NDP motion was rejected by the government, and rightly so from a traditional point of view. You cannot at the same time imply that you have no confidence in the government and then ask it to stay in office for a few more weeks or months. But the motion did raise the question of whether Canada takes too narrow an approach to confidence. The Westminster model is not the only approach to making and unmaking governments. Other countries have provisions for caretaker governments after a defeat or for constructive votes of confidence that require an alternative government to be named to replace a defeated one.

In any event, a few days later the government was defeated and the election was held on January 23, 2006. It returned the first Harper minority.

The first Harper minority and fixed election dates

The Harper government had a plan to end the constitutional improvisation of its predecessor. Following the lead of several provinces, it enacted legislation...

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