Advice to the Minister of Democratic Reform
Senate Reform, Constitutional Amendments, Fixed Election Dates, and a Cabinet Manual
Bruce M. Hicks*
The Conservative Party of Canada ran in 2006 from provinces that have enacted legislation as on an agenda of democratic reform that was to prescribed by the bill and held “consultative” include election dates for the Commons fixed elections.3 at four years and Senate elections with fixed eight-year terms. After assuming power, its The prescribed provincial legislation is con- legislation for quadrennial fixed election dates tained in a schedule to the bill, and uses mul- was abrogated within two years of its passage tiple-member plurality voting to identify who and again two years later. Its Senate reform “wins” the right to be on a list of provincial sen- bills have never gotten beyond second reading atorial nominees. The number of senators on the and, in most cases, only made it to first. And list, according to the proposed legislation, is up the prime minister has twice convinced the Governor General to use her reserve powers to the provincial government, and once placed to protect the government from parliamentary on the list these “senators-in-waiting” remain accountability. This paper outlines possible on the list for six years, unless they resign from ways to rehabilitate the government’s reform the list, swear allegiance to a foreign power, are agenda. convicted of treason, are adjudicated bankrupt, or are a senator, Member of Parliament (MP), or On February 10, 2012, I met with the Honourable member of a provincial legislature.4 Tim Uppal, Minister of State (Democratic Reform), as part of his outreach to academics The purpose of this legislation is to make with respect to the federal Conservative the Senate elected without amending the Con- Government’s “Senate reform” legislation. stitution Act, 1867. Currently before the Parliament of Canada Pursuant to section 42(b) of the Constitution is Bill C-7, An Act Respecting the Selection of Act, 1982, “the method of selecting Senators” can Senators and Amending the Constitution Act, only be altered by a constitutional amendment 1867 in respect of Senate Term Limits.1 This that has been agreed to by a resolution adopted bill proposes reducing the term of all senators by both chambers of Parliament and seven appointed after October 14, 2008, from age provincial legislatures that together represent seventy-five to a single nine-year term.2 more than 50 percent of Canada’s population (s. Additionally, the bill states that the prime 38(1)). 5 minister “must consider names from the most current list of Senate nominees selected for that The federal government’s claim that this province or territory” in recommending to the legislation does not change the method of se- Governor General appointment to the Senate lecting senators rests on the fact that the prime minister is only being instructed to “consider”
Constitutional Forum constitutionnel 23 the names on this list, leaving the method of ap- tion surrounding the holding of these consulta- pointment the same as it was before the adop- tive “elections” to each province is less uncon- tion of this law. Currently, the Governor Gen- stitutional (if such a thing were possible) than eral summons the person to the Senate that previous incarnations of this legislation that has been recommended by the prime minister would have established a federal election law through an “instrument of advice.” governing “consultations with electors on their preferences for appointments to the Senate.”8 The precedent for a province holding a vote on a list of potential nominees goes back I told the Minister that Quebec will likely to the Meech Lake Constitutional Accord, challenge the constitutionality of the legislation which would have amended the Constitution in court as the political leaders in this province to require the prime minister (PM) to choose correctly see the Senate’s arrangements as one nominees to the Senate from a list provided by of the key agreements between the French and the relevant province. During the ratification the English that made Confederation possible. period for this accord, Prime Minister Brian The statement by Father of Confederation and Mulroney had agreed to operate as if the accord Ontario Leader George Brown to this effect in was in place. This allowed the Alberta govern- the Confederation debates was cited by the Su- ment, long an advocate of an elected Senate, to preme Court in the 1980 reference on the legal- enact provincial legislation to determine its list ity of altering the Senate to allow the provinces through province-wide election and then dare to appoint half of its members (or alternately al- the PM not to appoint the winner.6 When the lowing for direct election of senators). The cita- accord was defeated, Mulroney stopped obtain- tion is as follows:9 ing provincial lists of potential nominees, and Jean Chrétien made a point of publicly reject- But the very essence of our compact is that the union shall be federal and not legislative. ing on principle the appointment of any person 7 Our Lower Canada friends have agreed to give “elected” in an Alberta senatorial election. us representation by population in the Lower Alberta has continued periodically to hold House, on the express condition that they shall have equality in the Upper House. On Senate consultative elections and Prime Minister no other condition could we have advanced a Harper has chosen the appointees for that step; and, for my part, I am quite willing they province from this list. The hope of the federal should have it. In maintaining the existing government is that more provinces will follow sectional boundaries and handing over the the Alberta example and that this would create control of local matters to local bodies, we rec- sufficient pressure on future prime ministers ognize, to a certain extent, a diversity of inter- to respect these elections—and encourage the ests; and it is quite natural that the protection public in other provinces to demand the same for those interests, by equality in the Upper right to elect their senators. Chamber, should be demanded by the less nu- merous provinces. This paper reports the advice and concerns I raised with the Minister. The first section dis- The ruling of the Supreme Court in this case cusses the Senate reform bill and outlines my underlies the amending formula adopted in the critiques of the plan contained in that legisla- Constitution Act, 1982. tion. The following sections detail the four rec- Additionally, Quebec politicians correctly ommendations I made to the Minister on the surmise that the creation of elected senators government’s larger democratic reform agenda. will not just alter the institutional dynamics of Parliament, but will shift political influence in Critique of the Senate Reform Bill the federation. Senators, elected with mandates from an entire province, will come to rival pre- It is likely that the clever sleight of hand offered miers, who are not directly elected province- by this bill will not survive a constitutional wide, in moral suasion and public influence. challenge, but the decision to leave the legisla-
24 Volume 21, Number 2, 2013 The Minister expressed his willingness to legislatures or through plebiscite. And the PM show flexibility with the provinces. For exam- would retain the right to choose who to nomi- ple, he has told New Brunswick that the federal nate. Otherwise, if the government imposes a government will let it use single-member rid- singular method of consultation on the prov- ings, rather than a province-wide vote, for its inces, namely the holding of elections using ten Senate positions, so that the Acadians in the multimember plurality balloting, then this is north and the English in the south of the prov- not about consultation, it is about changing the ince will be represented. “method of selection.” In that spirit, my advice was to let the Que- The federal government’s strategy to transi- bec National Assembly recommend that prov- tion the upper chamber to election, as I told the ince’s nominees. This has long been a demand Minister, is based on a naive understanding of of Quebec’s and, I suggested, just might prevent the way the 17th Amendment to the Constitu- it from launching a court challenge on the con- tion of the United States unfolded. This amend- stitutionality of the law. [Quebec subsequently ment made its Senate elected. filed a reference, on April 30, 2012, with the Court of Appeal of Quebec, challenging the The US Constitution provided for the selec- 10 constitutionality of Bill C-7.] tion of senators by the legislature of each state. There is a belief that once Oregon adopted leg- Having senators appointed by a province islation in 1908 to hold consultative elections, will by no means undermine the legitimacy of it created a domino effect, with state after state the upper chamber. In fact, the Bundesrat mod- following suit, and then proceeding to ratify the el (from Germany) has long been considered by requisite constitutional amendment to make Canadian federal and provincial governments the Senate elected by 1913. as a useful model for Canada precisely because intrastate institutions are legitimate and even There is no doubt that this did occur and thought necessary in so many federal countries. that the change was in response to a populist groundswell in favour of making the upper Of course, allowing Quebec to appoint its chamber more directly accountable to the vot- province’s senators will not recreate that model, ers. But it was a much longer developmental tra- as other provinces will be using election. But jectory that included a breakdown in the previ- as Quebec’s twenty-four senators have to come ous selection process. from twenty-four electoral divisions (divisions that only encompass the boundaries of Quebec First, calls for direct election began as far in 1867), holding elections in the province is back as 1826. Second, the divisions over slavery not feasible absent a constitutional amendment and states’ rights that led to the civil war began (even if there was an interest in elections, which to make the selection of senators by state legis- there currently is not). Further, Quebec excep- lature difficult beginning in the 1850s. Divided tionalism respects the terms of union. And, fi- legislatures resulted in long vacancies as no con- nally, Quebec is changing, so it is likely that in sensus could emerge as to who the representa- time there will be pressure from within Quebec tive of the state should be in Washington. Third, to hold elections if every other province is hold- the civil war impacted on Senate appointments, ing elections for its senators. with the union divided between 1861 and 1865. And it eroded support for state influence at the Realizing that non-Quebeckers, particu- federal level and removed federalism from pop- larly Western Canadians, object to Quebec ex- ular discourse vis-à-vis the role of the Senate. ceptionalism, the offer for a provincial legisla- Fourth, senators were being selected by different ture to recommend names should probably be mechanisms in different states, throwing into extended to all provinces. This would strength- doubt the legitimacy of some senators.11 And en the federal government’s claim that this is fifth, political parties had begun to select their only about consultation. Provinces would be nominees for the Senate through primaries. By free to hold consultations, either through their 1908, ten states were already using primaries to
Constitutional Forum constitutionnel 25 select their parties’ Senate nominees, with the one senator to Cabinet. People with ambition state legislature then voting to decide between and talent would and did choose to run in the the two parties’ candidates.12 The transition to smaller ridings of the lower chamber that were election in these states was virtually no change; less expensive to campaign in, easier to repre- and in other states it was a necessary corrective sent when elected, and held the possibility for for a system that had serious flaws. advancement into the ministry. Having said that, it is not unreasonable for The proposed bill would allow senators to the Conservatives to believe that an idea like only serve one nine-year term. In most jurisdic- direct election for Canadian senators will be tions where the option of holding elections is adopted by province after province, fuelled by being contemplated, candidates will have to run popular support. We know definitively that pro- a province-wide campaign. Even if a province portional representation was adopted by coun- was to use electoral divisions, only in the case try after country in Europe due to the temporal of PEI and New Brunswick would these rid- popularity of this electoral mechanism.13 And ings be the same size as for the House of Com- during the period of ratification for theMeech mons (they have equal representation in both Lake Constitutional Accord, following the lead chambers). In all other provinces, a Senate rid- of Alberta, the legislature of British Columbia ing would be dramatically bigger. In the case of adopted a law to allow for direct election of its Ontario, were the province to use ridings for its nominees, though this act contained a sunset senators, a Senate riding would be twenty times clause and has since lapsed.14 the size of a House of Commons riding. And if Ontario did not use ridings but had candidates Keeping in mind that each of the following run province-wide, the candidate would have to legislatures has a right-of-centre political party run a campaign similar to the provincial pre- similar to the Conservative Party of Canada in mier’s campaign, with national media buys and the majority, recently Saskatchewan adopted cross-province tours, just to get noticed. legislation modelled on the Alberta law;15 there is a private members’ bill in BC that the premier Getting noticed is made all the more chal- has said she would support to hold Senate elec- lenging because the Senate elections are to be tions; a special committee on Senate reform in held at the same time as a provincial or mu- Manitoba has recommended an electoral pro- nicipal election. Obviously, provincial and mu- cess be adopted in that province, provided it is nicipal issues will dominate during these cam- run and paid for by Elections Canada;16 and the paigns, so candidates will have to work harder premier of New Brunswick has, as noted above, to make voters aware of the Senate election, to expressed a willingness to hold elections using inform them of the issues and their positions single-member constituencies. on the upper chamber and on federal issues. If Senate election campaigns are not big (which What will be key to turning this ideological means expensive), they will be subsumed by the interest in Senate elections into a popular mo- provincial campaign taking place at the same mentum for reform will be, to begin with, the time. sort of candidates who run for and get elected in these votes. With no incumbency, there will be little ca- pacity to build party campaign infrastructure Canada’s experience prior to Confederation for Senate elections and the larger ridings will was that it was hard to attract good candidates make it difficult to co-ordinate with the party’s to run for their elected upper chamber. Upper provincial riding associations to share theirs. In chamber ridings are bigger than those used for most provinces, the provincial political parties the lower chamber. Responsible government re- have no relation to the federal parties. And, of quires that the government be accountable to, course, if the vote is held at the same time as and have the confidence of, the lower chamber. municipal elections, there are usually no politi- So, while senators can be Cabinet ministers, cal parties and, if there are, they have no relation the practice over time has been to only appoint to either provincial or federal political parties.
26 Volume 21, Number 2, 2013 Having given these brief observations on that this should be done for good measure. The the limitations of the government’s Senate re- merits of doing so should be weighed against form strategy, I then turned my attention to the benefits of a single amendment as will be recommendations I would make on how to get discussed below. the government’s larger democratic reform plan back on track. The five-year constitutional limit on the life of a Parliament has been exceeded only once Recommendation #1: Table a Constitutional since Confederation, and that was in 1916 (a Amendment Authorizing Federal and Pro- time of war). On seven other occasions it was vincial Fixed Election Date Legislation reached and not exceeded, though in 1896, Charles Tupper tried to make a case that since The constitutional amendment would read as there had been a delay in the return of the writs follows: for one riding, Parliament could last beyond the date set by proclamation for the return of the TheConstitution Act, 1982, is amended by writs.18 The more common practice has been to adding: 4(3). Parliament or a legislative assembly call early elections when the prime minister or may legislate with respect to its own dis- premier feels it is most advantageous to his or solution, including the establishment of her political party winning the most seats, or a fixed date for the return of the writs at if his or her government has lost a confidence a general election for its members.17 vote.19 Section 4 of the Canadian Charter of Rights and The idea of establishing a fixed election date Freedoms in the Constitution Act, 1982, cur- had long been advocated by Stephen Harper. He rently states: introduced Bill C-512 on April 1, 2004, while leader of the opposition, which would have 4. (1) No House of Commons and no legisla- made that change.20 In the 2006 election, the tive assembly shall continue for longer than Conservative Party of Canada had as part of its five years from the date fixed for the return of election platform a commitment to establish a the writs of a general election of its members. (2) In time of real or apprehended war, in- fixed election date every four years. vasion or insurrection, a House of Commons Bill C-16 was introduced into the House of may be continued by Parliament and a legisla- Commons on May 30, 2006. It required that tive assembly may be continued by the legis- lature beyond five years if such continuation each general election take place on the third is not opposed by the votes of more than one- Monday in October in the fourth calendar year third of the members of the House of Com- after the previous election, starting with Oc- mons or the legislative assembly, as the case tober 19, 2009. Entitled An Act to Amend the may be. Canada Elections Act, it passed both houses and received royal assent on November 6, 2006.21 Section 4(1) replaced, though did not delete, section 50 of the Constitution Act, 1867, which During the debate on this legislation, the read: prime minister and his then Minister for Dem- ocratic Reform Rob Nicholson argued that this Every House of Commons shall continue for law would prevent a prime minister from call- Five Years from the Day of the Return of the ing early elections simply because it was advan- Writs for choosing the House (subject to be tageous to his or her political party. It was being sooner dissolved by the Governor General), and no longer. proposed because it would ensure “greater fair- ness in elections campaigns, greater transpar- Similar provisions with respect to the maxi- ency and predictability.”22 mum length of a provincial legislature exist in the provinces’ respective constitutions. It is my Support for fixed election dates was not position that section 50 does not have to be re- unique to the Conservative Party. Official sup- pealed, though there may be others who argue port came from the Special Joint Committee of
Constitutional Forum constitutionnel 27 the Senate and the House of Commons on the parliamentary government. Constitution of Canada that recommended in 1972 that the following provision be placed in Bill C-16 left intact the Governor General’s the Constitution: capacity to dissolve Parliament early and call a new federal election. Specifically, Bill C-16 con- 43. Every House of Commons should con- tained the following clause: tinue for four years, from the day of the re- turn of the writs for choosing the House 56.1 (1) Nothing in this section affects the and no longer, provided that, and notwith- powers of the Governor General, including the standing any Royal Prerogative, the Gov- power to dissolve Parliament at the Governor ernor General should have the power to General’s discretion. dissolve Parliament during that period: (1) when the Government is defeated Minister Nicholson argued in the Commons’ (a) on a motion expressing no con- debates that “the prime minister’s prerogative fidence in the Government; or to advise the Governor General on the dissolu- (b) on a vote on a specific bill or portion tion of Parliament is retained to allow him or of a bill which the Government has previ- her to advise dissolution in the event of a loss ously declared should be construed as a of confidence.”26 He claimed that what was be- motion of want of confidence; or ing created was a new constitutional convention (2) when the House of Commons passes a res- against calling snap elections. olution requesting dissolution of Parliament. For a constitutional convention, or bind- The Special Committee on the Reform of the ing unwritten rule, to exist, Sir Ivor Jennings 23 House of Commons argued against fixed elec- argued that there needed to be: (a) a precedent; tion dates. In its 1985 report, it noted that a con- (b) a belief among the constitutional actors that stitutional amendment would probably be nec- they were bound by the rule; and (c) a [demo- essary to extinguish the power of the Governor cratic] reason for the rule.27 General to dissolve Parliament and it argued that Parliament’s ability to vote nonconfidence The power to dissolve Parliament is a re- was key to government accountability. The cor- serve power of the Crown. That is because ollary to which, they concluded, was that fixed when most of the royal prerogatives were being election dates would advance the executive’s su- turned over to individual ministers and to the premacy over Parliament. Cabinet (operating through the Privy Council) by emerging constitutional conventions, there Most recently, Aucoin et al. have convinc- was no democratic argument as to why the PM ingly argued the opposite: that given the his- or Cabinet should have control of the preroga- tory of snap elections by both Liberal and Con- tives that govern Parliament.28 As British Prime servative PMs and their use of prorogation to Minister Harold Macmillan correctly wrote in prevent Parliament from holding a government his memoirs, a PM has “no right to advise a dis- to account, fixed election dates could restore solution” of Parliament to the Queen as this is 24 Parliament’s power over the executive. They one of her personal prerogatives.29 Canadian argue that there should be no early elections. prime ministers are less circumspect and have, Rather, governments could be removed from since 1957, been delivering their recommenda- office between elections through constructive tion for the use of the power of dissolution to motions of nonconfidence—where the mo- the Governor General on a document bearing tion both expresses a lack of confidence in the the lofty title, “instrument of advice.” government and identifies who would have the confidence of the House to form a government. Over time, the PM has been able to gain al- This would force minority governments, they most unfettered access to these powers.30 While argue, to work with the opposition to enact leg- some argue that the reserve power over dissolu- islation that was supported by the majority of tion allows for a check on a ruthless prime min- the people’s representatives in the legislature.25 ister,31 most Canadian academics accept the re- In short, it would return Canada to responsible ality that the Queen and the Governor General
28 Volume 21, Number 2, 2013 in the modern era will never defy a PM, as was and how the PM and party leaders had voted, the expectation of the Fathers of Confedera- the “relevant political actors” had not reached tion.32 It is noteworthy that in Australia, where a consensus on such a convention.38 As for who the same constitutional conventions exist sur- the actors are when it comes to the power of dis- rounding the reserve powers, governors reserve solution, the Court showed a misunderstanding the right to use these powers in opposition to of the reserve powers by saying that the PM and the advice of their first ministers and to consult the Governor General must agree to be bound widely, including other ministers and leaders of and are the only relevant actors as “the leaders the opposition, before exercising these powers.33 of the political parties have no power, be it con- ventional or legal, to dissolve Parliament.”39 NB: Since the fixed election date legislation did The PM does not have this power either. nothing to limit the Governor General’s right to dissolve Parliament or the PM’s capacity to rec- This decision was appealed, with the appeal ommend dissolution before the end of the four- court upholding the decision by declining to year period, since Canadian PMs have little or “make a declaration that there is a new consti- no respect for the office of Governor General, tutional convention that limits the ability of the and since Canadian Governors General are not Prime Minister to advise the Governor General inclined to refuse a request from the PM,34 this in these circumstances.”40 bill did not establish a fixed election date. All it did was reduce the constitutional limit for a This ruling casts into doubt not only the va- maximum Parliament from five to four years. lidity of the federal fixed election date law but similar legislation in the eight provinces that On September 7, 2008, the prime minister have enacted such laws as outlined in Table 1. issued an instrument of advice to have the Gov- While in each of these provinces there has been ernor General call an early election in violation a precedent, which meets the first test of Jen- of the law the PM had convinced Parliament to nings, these laws equally have clauses saving the enact two years earlier.35 His obvious hope was lieutenant governors’ reserve powers, meaning that he would win a majority of the seats in the that a premier could “advise” an early election House of Commons, something Canadian vot- call and the lieutenant governor could accept ers denied him at the time, though would deliv- such a recommendation. As the only constraint er to him two years later when he called another is convention, if such advice was properly election short of the four-year requirement. framed (e.g., that the legislature had become dysfunctional, the claim Harper used to justify Democracy Watch took the government both of his early dissolutions), breaking these to court. It argued not that the law was broken provincial statutes may not have any political but rather that a constitutional convention had consequences for a premier.41 It certainly would been broken, citing the comments of the PM not have any legal consequence as conventions and his Minister for Democratic Reform about are unenforceable by the courts. the creation of a new convention. As the Su- preme Court noted in Re: Resolution to amend A strong case can therefore be made for a con- the Constitution 1981 and again in Re: Objection stitutional amendment establishing the right by Quebec to a resolution to amend the Consti- of all legislatures to (re-)enact fixed election tution 1982, it is up to the Governor General, date legislation. Such an amendment would re- Parliament, or the Canadian people to enforce quire unanimity if one takes the position that constitutional conventions as the Court can- this is altering the office of the Governor Gen- not.36 This point was made by the Federal Court eral.42 This is not a position I share. The form of of Canada in this case as well.37 amendment I am proposing is about legislative capacity to regulate dissolution and not about But the Federal Court of Canada went fur- extinguishing regal or vice-regal power (dis- ther. It applied the Jennings test and said a con- solution would still be effected by the Crown). vention did not exist as there had been no prece- Only seven provinces, representing 50 percent dent and, in spite of what was said in Parliament of the population, would be needed to make
Constitutional Forum constitutionnel 29 Table 1 Provincial Fixed Election Date Laws
Province Fixed Date (Every Four Years) Adopted First Used
British Columbia Second Tuesday in May 2001 2005
Ontario First Thursday in October 2004 2007
Newfoundland and Labrador Second Tuesday in October 2004 2007
New Brunswick Fourth Monday in September 2007 2010
Prince Edward Island First Monday in November 2008† 2011
Saskatchewan First Monday in November 2008 2011
Manitoba First Tuesday in October 2008 2011
Alberta Between March 1 and May 31 2011 2012
†Originally, the PEI legislation adopted in 2007 set the date at the second Monday in May, though no election was held under this law that was altered the following year. such an amendment. With eight provinces hav- to, the weekend before, the Parti Québécois ing fixed election laws that are now in question, (PQ) adopting a series of resolutions for its elec- this threshold could easily be met. tion platform that, among other things, would see the establishment of fixed election dates for Constitutional amendment has been largely Quebec, and its leader and now premier, Pau- taken off the table—except if it affects only one line Marois, had been calling on Charest to in- province—following the defeat of the omni- troduce such a law all that week. I pointed out bus amendments of the Meech Lake and Char- this fact to the Minister and that public opinion lottetown constitutional accords. But making polls at the time were already predicting that a single amendment that is in the interests of the PQ would form the next government in Parliament and eight provinces may be doable. Quebec. During the general election campaign And if such an amendment were to be adopt- that later unfolded, the leader of the Coalition ed, this may have the consequence of opening Avenir Québec (CAQ), François Legault, also the door to other amendments in the future. unveiled an election platform that contained It makes no sense for a country to have no ca- a commitment to fixed election dates. And, of pacity to amend its constitutional law, which is course, the PQ went on to form the government the current situation in Canada. The precedent and is now in a position to introduce fixed elec- of tackling specific constitutional problems tion date legislation. with a measured response, rather than massive amendment packages that take the country to If the PQ and CAQ, which together now the brink, would be set. hold the majority of seats in Quebec’s National Assembly, can be convinced this amendment Of course, the elephant in the room is Que- is necessary to properly implement their own bec. It is one of the two provinces that does not campaign promises of fixed election dates, have a law regarding fixed election dates. At the which it is, their support for such a constitu- time I met with the Minister of Democratic Re- tional amendment may be obtainable. form, Premier Jean Charest was still in office and he had publicly rejected the idea of fixed elec- The problem would be that, due to the tion dates for Quebec. But this was in response events surrounding patriation in 1982, most
30 Volume 21, Number 2, 2013 Quebec politicians are reluctant on principle to nisms by which an election can be called before amend a Constitution they consider an affront five years and that is either the passage by the to Quebec. But there is a precedent. TheConsti - House of Commons of a motion, “[T]hat this tution Amendment, 1997 (Quebec) was adopted House has no confidence in Her Majesty’s Gov- by the National Assembly of Quebec to replace ernment”; or if two-thirds of the MPs approve denominational school boards with linguistic a motion stating, “[T]hat there shall be an early boards. The resolution included the follow- parliamentary general election.” ing statement in its preamble: “Whereas such amendment in no way constitutes recognition Should the House of Commons adopt a mo- by the National Assembly of the Constitution tion, “That this House has no confidence in His Act, 1982, which was adopted without its con- or Her Majesty’s Government,” it does not auto- sent.” So it is possible for the National Assem- matically result in an election. There are four- bly to support a constitutional amendment; and teen days for the parliamentary parties to try to this was done under a PQ government headed find an alternative government (or presumably by Lucien Bouchard (though he took every op- for the government to convince the Commons portunity to rail against the process at the time). to restore its confidence). The new government then must get the House to adopt a motion stat- This does not open the Constitution to fu- ing, “[T]hat this House has confidence in Her ture amendment, but it does offer the possibil- Majesty’s Government.” If, after this fourteen- ity for future change, and that has benefits that day “government formation” period, no one is go well beyond fixed election dates. But even if able to put together a government that can ob- it does not, as Aucoin et al. aptly show, genu- tain the confidence of the House, then Parlia- ine fixed election dates have the potential to ment is automatically dissolved. restore some of the principles of responsible government.43 While the act sets the day for voting as the first Thursday in May every five years after May Recommendation #2: Adopt the Fixed Elec- 7, 2015, the Queen-in-Council can delay the tion Date Legislation Enacted by the UK election for up to two months. The Cabinet has Parliament to give a reason for the delay and both cham- bers have to agree. An example for why such a So, with or without a constitutional amend- delay might occur was the outbreak of foot-and- ment, what should be the rules surrounding mouth disease, which delayed the 2001 general fixed election dates? I believe the British legis- election by a month. Parliament automatically lation best reflects the principles of responsible dissolves seventeen working days before Elec- parliamentary government (and on this point I tion Day (which is the campaign period set by depart from Aucoin et al.44). law in the UK). Fixed election dates for United Kingdom In the UK, the Queen’s power to dis- (UK) general elections was a commitment con- solve Parliament has been extinguished with tained in the Conservative-Liberal Democrat her Majesty’s consent. While a constitutional coalition agreement signed in 2010. Following amendment would be necessary to extinguish this coalition government taking office, legisla- in Canada the royal prerogative of dissolu- tion was adopted by the UK Parliament setting tion, the Governor General’s access to it could an election every five years starting on May 7, be eliminated by an amendment to the Letters’ 2015.45 The only change to this law the opposi- Patent of 1947.47 There is precedent for this. tion Labour and Scottish National parties pro- When the Governor General appoints a depu- posed when it came before Parliament was to ty, the commission does not include the power set the fixed-term at four years, which was not of dissolution. This would not prevent a prime agreed to by the Conservative and Liberal Dem- minister going to the Queen and asking her for ocrat MPs.46 dissolution, but the optics of such a move would likely incur political consequences—the sort Under this law, there are only two mecha- of consequences that are supposed to enforce
Constitutional Forum constitutionnel 31 conventions—and there is reason to believe the conventions, both houses of Parliament hold Queen would refuse the PM given the elimina- hearings on it, and make recommendations tion of the personal prerogative of dissolution in for its amendment. It is then adopted by the the U.K. given the elimination of the personal Queen-in-Council. This makes it binding on prerogative of dissolution in the U.K. the executive branch. Recommendation #3: If Canada Is to Have a Having Parliament (the legislative branch) Public Cabinet Manual, It Should Be Based and the Cabinet (the executive branch) agree on on the UK Version and Adopted Using Their what should be contained in the Cabinet Man- Process ual can be used to ensure the concurrence of all constitutional actors when it comes to consti- The idea of a publicly available Cabinet Manual, tutional conventions. This could be useful with which has been used in the UK and New Zea- respect to the personal prerogatives as these are land to clarify unwritten constitutional conven- not powers of the executive branch but rather tions, has been gaining support here in Cana- powers of the Queen that govern Parliament da.48 Beginning with a workshop organized by and thus mediate the relations between the two University of Toronto Professor Emeritus Peter branches. But it equally could be used to mis- Russell at a public policy forum in February represent conventions and thus alter them in 2011, there has been a co-ordinated push by the process, which is why process and content some academics to have a Cabinet Manual pub- are so important. lished by the Privy Council Office (PCO) in -Ot tawa.49 This is a dangerous idea that could have Having said that, the Cabinet Manual does constitutional consequences. not codify constitutional convention; the pow- ers of dissolution and prorogation remain the There already exists in Canada the equiva- personal prerogatives of the Queen. The Cabi- lent of a Cabinet Manual. Only one version net Manual guides only the executive branch, has been made public, the 1987 version. If that namely the PM, ministers, and senior public manual is any example, it is designed by the servants in their behaviour. The process of pub- Privy Council Office (PCO) at the direction of lishing this document and obtaining input from the Prime Minister’s Office (PMO) to extend the Parliament ensures transparency in the way the PM’s control over the personal prerogatives, as executive branch operates and makes it more evidenced by its stating such things as “Proro- accountable to Parliament. gation of Parliament is an exercise of the royal prerogative . . . The decision to prorogue is the As the Cabinet Manual has the capac- Prime Minister’s.”50 This is simply not correct; ity to reflect new constitutional conventions, it though I am sure it is believed to be true in the can impact on their emergence. That is why in executive branch and this view would not likely New Zealand the preservers of this manual are have been altered by the events of 2008. quick to caution about including conventions for which there is insufficient concurrence. The The principle lesson from the UK has to analogy of the Complete Oxford English Diction- be about process!51 Though the second lesson ary has been used: new words are added in sub- should be about content, as the UK document sequent editions but only once these words have has at its core the principles of enhancing the reached a level of acceptance.52 As they emerge, role of Parliament and responsible government, they are placed on slips for inclusion in the next and of protecting the monarch and her pow- edition. When a critical mass is reached, a new ers from being compromised by politicians’ edition is produced. So, too, with the Cabinet partisan machinations to obtain and hold onto Manual; it will always lag behind reporting power. constitutional conventions. As for process, while the Cabinet Manual The current UK manual was submitted to is drafted by the Cabinet Office based on its the British Parliament in December 2010. It was understanding of unwritten constitutional studied by the Political and Constitutional Re-
32 Volume 21, Number 2, 2013 form Committee, the House of Lords Constitu- Since the 2010 election did not result in a tion Committee, and the Public Administration single party having a majority of seats in the Select Committee. Their reports were consid- British House of Commons, various govern- ered and responded to by Cabinet. This formal ment configurations were explored by the lead- consultation process with respect to the Cabinet ers of the larger political parties and, in a very Manual mirrors the one put in place by Labour quick period of time, a coalition government Prime Minister Gordon Brown in February was formed between the Liberal Democrats and 2010 for one proposed chapter for the manual, the Conservatives. Their written agreement in- the one outlining government formation. cluded a legislative program that was acceptable to both political parties, and even included ele- The stated purpose for establishing this pro- ments supported by all political parties, as the cess, in addition to meeting the Labour govern- dialogue between the various parties had iden- ment’s commitment to advance transparency, tified a number of common policy positions. was to protect the Queen from being dragged Due to the support of the civil service, this leg- into partisan politics and to ensure a civilized islative program was on solid financial and eco- and orderly transfer of power should the La- nomic footing from the start. bour government not have the confidence of the new Parliament as chosen by the voters in that Thus, Labour Prime Minister Gordon election. Brown set a precedent. But a convention that future PMs must provide civil service support The chapter of the manual prepared under for government formation would be too broad the direction of Prime Minister Brown includ- a characterization of that precedent. So the new ed a provision whereby, at the direction of the Cabinet Manual states that a PM may instruct prime minister and through the Cabinet secre- the civil service, through the Cabinet secretary, tary who is responsible for the civil service, the to provide impartial advice to the leadership of advice of the relevant government departments the other political parties to explore govern- could be made available to all political parties ment formation in a Parliament where no party following the election. This includes the evalu- has a majority of seats in the Commons. Given ation of proposed programs and must “be fo- the precedent, perhaps with time, a convention cused and provided on an equal basis to all the will emerge that the PM will always offer po- parties involved, including the party that was litical parties civil service expertise in a hung 53 currently in government.” This would allow Parliament. But in the meantime, the conven- the parties’ leadership to cost out proposed pro- tion the PM and Cabinet as constitutional ac- grams and policies as they explored different al- tors agree to be bound by with respect to gov- ternatives as to who should form a government. ernment formation is publicly understood and This was not designed to create a coalition available to all in the Cabinet Manual. government, though that was a distinct even- One of the items included in the Cabinet tuality. This process was thought to be equally Manual is the restrictions on what a “caretaker important for a party that wanted to form a mi- government” can do during the election. Pur- nority government, as it would need to develop suant to this manual, in or around dissolution, a legislative program that would have the sup- the Cabinet Office publishes guidance on what port of members of other political parties and are the acceptable activities for the government 54 independents. while Parliament is dissolved. The PM writes All party leaders publicly committed to to all ministers issuing similar instructions. keeping the Queen out of the partisan machi- This caretaker government does not take or an- nations surrounding government formation, nounce major policy decisions. This includes though she is to be kept briefed on all negotia- entering into large or contentious procurement tions by all parties, as asking a person to become contracts. Government departments are also prime minister and to form a government in her forbidden from undertaking significant long- name is still one of her personal prerogatives. term commitments unless the postponement
Constitutional Forum constitutionnel 33 would be detrimental to the national interest to directly vote on their senators, a possibility or wasteful of public money. In those instanc- in a province that has led the country in direct es, if decisions cannot wait, they are handled democracy. through temporary arrangements or following consultation with the leadership of the other The ruling by the Federal Court in Co- political parties.55 nacher v. Canada with respect to fixed elec- tion dates offers a unique opportunity to try a Clearly, the UK manual, especially if the single constitutional amendment and thus set UK’s fixed election law were adopted for Cana- the precedent for how amendments should be da, would be a worthwhile addition to executive undertaken and to show that they are indeed governance in Canada. A flawed manual would possible. It has thrown eight provinces’ laws be discredited. As the manual has the poten- that set fixed election dates into question, and tial to further the government’s democratic two of the largest parliamentary parties in Que- reform agenda (e.g., it could be used down the bec, one of which is now the government, have road to identify any constitutional convention promised to enact equally flawed fixed election that emerges with respect to the PM making date legislation. appointments to the Senate), it would be coun- terproductive to try to use such a document for Whether or not an amendment is attempted short-term partisan purposes and willfully mis- or achieved, the fixed election date legislation represent constitutional conventions, as the PM based on the law adopted by the United has been doing in public speeches.56 Kingdom would be preferable for Canada than the current legislation. The Westminster model of responsible parliamentary government is Conclusion about electing representatives and then their working as an electoral college to choose a This paper reflects the comments made to the government and hold it to account. They should Minister of Democratic Reform, though the be able to replace a government mid-term arguments behind the critique, advice, and rec- once it loses parliamentary confidence. This ommendations have been expanded here for the happens in other countries, like Australia and purposes of academic discourse. New Zealand, but not in Canada, even though When it comes to the constitutionality of the constitutional conventions surrounding Bill C-7, the government’s proposed Senate re- confidence are shared. The UK fixed election form legislation, this paper reflects the limited law respects this principle and forces parties to advice on the constitutionality of this legis- consider alternative configurations following a lation, which was not a subject on which the defeat on a confidence matter before triggering Minister was seeking advice. Bill C-7 offends a new election. And it prevents a government the constitutional amendment requirements from manufacturing its own demise, while less than the previous incarnations that would still allowing for Parliament to cause an early have established a federal election law for these election if two-thirds of the MPs believe that consultations. Allowing the Quebec National this is in the country’s best interest. Assembly (and other provincial legislatures) Adopting a public Cabinet Manual, as ad- to organize their own consultations, including vocated by a number of Canadian academics legislative hearings or a vote in the national as- following the debate over the 2008 prorogation sembly, so as to recommend nominees would of Parliament, is a risky proposition, based on (i) possibly have convinced Quebec not to chal- the current government’s misleading partisan lenge the legislation; (ii) buttressed the claim framing of conventions and the likelihood that that the exercise is about consultation and not the PMO and PCO would be minimalist (or a prescription for a new method of selection, worse) in their interpretation of conventions. namely election; and (iii) may have even result- But it equally has the potential to be a construc- ed in the long term in Senate elections in Que- tive document, as it has been in New Zealand bec, if Quebeckers themselves demand the right and the United Kingdom. The lesson from the
34 Volume 21, Number 2, 2013 UK, which in one edition of the manual has vacancies during a provincial legislative term. produced a document widely respected and 8 That proposed legislation was introduced as thought to advance British democracy, is that C-43 in 2006 and C-20 in 2008. In each of these process and content are equally important. incarnations, the prescribed electoral system was single transferable balloting, which is what is In other countries, governments have used in Australia for its Senate elections. Addi- shown their commitment to democratic reform tionally during this period, amendments to the and have delivered on it. These ideas offer the Constitution were introduced to reduce the term opportunity for the federal Conservative gov- of a senator to one term of eight years in bills S-4 in 2007, C-19 in the second session of Parliament ernment to honour its 2006 promise and deliver begun also in 2007, and S-7 in 2009. The rea- similarly. son for originally proposing two separate bills, begun in different chambers of Parliament, was to buttress the federal government’s claim that altering the tenure of a senator was (i) not tied to Notes holding elections, but was simply (ii) meritorious * Dr. Hicks is a visiting SSHRC fellow at the in its own right and (iii) not a substantive change Bell Chair for the Study of Canadian Parlia- to the body since these long terms maintained mentary Democracy at Carleton University. its ability to be a chamber of “sober second 1 This bill combines two previously proposed thought,” so (iv) was within the federal Parlia- bills, C-10 and S-8; the former, introduced in ment’s jurisdiction for constitutional amend- the Commons in 2010, governed the holding of ment without provincial concurrence pursuant provincial votes on Senate appointments and the to section 44. Bill C-43, An Act to provide for latter, introduced in the Senate the same year, consultations with electors on their preferences would have reduced senators’ terms to eight for appointments to the Senate, 1st Sess, 39th years; Bill C-10, An Act to Amend the Constitu- Parl, 2006; Bill C-20, An Act to provide for con- tion Act, 1867 (Senate Term Limits), 3rd Sess, sultations with electors on their preferences for 40th Parl, 2010; Bill S-8, An Act Respecting the appointments to the Senate, 2nd Sess, 39th Parl, Selection of Senators, 3rd Sess, 40th Parl 2010. 2008; Bill S-4, An Act to amend the Constitu- 2 Bill C-7, An Act Respecting the Selection of Sena- tion Act, 1867 (Senate tenure), 1st Sess, 39th Parl, tors and Amending the Constitution Act, 1967 in 2007; Bill C-19, An Act to amend the Constitution respect of Senate Term Limits, 1st Session, 41st Act, 1867 (Senate tenure), 2nd Sess, 39th Parl, Parl, 2011 cl 4(1). 2007; Bill S-7, An Act to amend the Constitution 3 Ibid cl 3. Act, 1867 (Senate tenure), 2nd Sess, 40th Parl, 4 As this list of ineligibility expands on the limita- 2009; Constitution Act 1982, being Schedule B to tions in the Constitution Act, 1867 as to eligibility the Canada Act 1982 (UK), 1982, c 11, s44. to be a senator, presumably someone eliminated 9 Re: Authority of Parliament in relation to the Up- from the list would have grounds to challenge the per House, [1980] 1 SCR 54, at 67, 102 DLR (3d) 1, provincial legislation. 30 NR 271, 1979 CarswellNat 643 (WL Can). 5 The Senate’s failure to adopt such a resolution 10 US Const art I, § 3. can be over-ridden by the House of Commons 11 In 1866, Congress moved to fix this problem by 180 days from the Commons first adopting its adopting regulations for how and when senators resolution in support of the amendment. were to be elected by a legislature. This improved 6 Stanley Waters, a Reform Party candidate, won things but deadlock in state legislatures contin- the Senate “election” in 1989 and, under pressure ued to result in vacancies. from the Reform Party and the Alberta Progres- 12 By 1908, ten states were using the primary. sive Conservative government, Mulroney finally 13 André Blais, Agneiszka Dobrzynska and Indridi agreed to summon him to the Senate in 1990. H Indridason, “To Adopt or Not to Adopt 7 Bert Brown had won the 1998 senatorial “elec- Proportional Representation: The Politics of tion” but would be passed over when Paul Martin Institutional Choice”, (2004) 35:1 British Journal filled vacancies from Alberta and would only be of Political Science 182. summoned to the Senate in 2007 under Harper, 14 Senatorial Selection Act SBC 1990, cl70. having won a second, 2004, senatorial “election.” 15 Senate Nominee Election Act, SS 2009, c S-46.003 Under the Alberta legislation, the number of peo- (Not proclaimed into force at the time of ple who win a place on the list is based on likely writing).
Constitutional Forum constitutionnel 35 16 Manitoba, Legislative Assembly, Special Com- Reserve Powers”, (2010) 44:2 Journal of Canadian mittee on Senate Reform, Report of the Special Studies 5. Committee on Senate Reform, (9 November 2009) 29 See Harold Macmillan, Riding the Storm, 1956- (Chair: Erna Braun). 1959 (London: Macmillan, 1971). 17 The choice of using 50A is based on the estab- 30 See Bruce M Hicks, “British and Canadian lished Canadian and British practice of adding Experience with the Royal Prerogative”, (2010) an amendment to the article in the constitution 33:2 Canadian Parliamentary Review 18; Bruce act(s) that it is meant to modify. The location of M Hicks, “The reserve power as a safeguard for this clause is not important, with the one excep- democracy, and other lies my forefathers told tion that this clause should not be an amendment me”, (2009) 25 Inroads 60. to the Constitution Act, 1982, 41(a), as that would 31 See Eugene Alfred Forsey, The Royal Power of have the consequence of implying that 41(a) was Dissolution in the British Commonwealth (To- designed to protect all royal prerogatives from ronto: Oxford University Press, 1943). legislative restriction, and that is not a position I 32 This has been most compellingly exemplified by support. Mollie Dunsmuir, Canada, Parliamentary Re- 18 He backed down when it became clear the search Branch “The Senate: Appointments under legislation he was trying to get through Parlia- section 26 of the Constitution Act, 1867” BP-244E ment would be constitutionally challenged in the (Ottawa: Library of Parliament, 1990). courts. 33 See Bruce M Hicks, “Coalition Governments to 19 Confidence votes are any legislation deemed by Parliamentary Privileges: Lessons in Democracy the prime minister as being a matter of confi- from Australia”, (2012) 35:3 Canadian Parlia- dence, a motion of nonconfidence, or a vote on mentary Review 20. the Speech from the Throne or on a money bill. 34 Supra note 22. 20 Bill C-512, An Act to provide fixed dates for the 35 In Canada, PMs insist they have the right to election of members to the House of Commons advise, not simply recommend, dissolution of and to amend the Constitution Act, 1867, 3rd Sess, Parliament, thus the lofty title for what is no 37th Parl, 2004. more than a letter. 21 An Act to Amend the Canada Elections Act, SC 36 In fact, it is unique to Canada in the British sys- 2007, c 10. tem of common law that constitutional conven- 22 House of Commons Debates, 39th Parl, 1st Sess, tions are even considered and that is because our no 47 (September 18 2006) at 1210 (Hon Rob federal and provincial legislation establishing Nicholson). final courts of appeal allow for references direct 23 This iscommonly referred to as the McGrath from the government, an artifact of the French Committee after its chair, Progressive Conserva- Napoleonic system that in France has led to an tive MP James McGrath. actual constitutional court. 24 Peter Aucoin et al, Democratizing the Constitu- 37 Conacher v Canada (Prime Minister), 2009 FC tion: Reforming Responsible Government (To- 920 at para 11, [2010] 3 FCR 411, 202 CRR (2d) ronto: Emond Montgomery Publications, 2011). 136. 25 Governments formed by the leader of a politi- 38 With respect to the “explicit agreement” test, the cal party which has a majority of seats in the Court said that there was no evidence, irrespec- Commons are assumed to have the Parliament’s tive of the legislation and what was said in Parlia- confidence. ment, that the prime minister and the Governor 26 House of Commons Debates, 39th Parl, 1st Sess, General, as the only relevant actors, had agreed No 47 (18 September 2006) at 1215 (Hon Rob to the creation of a new convention. Nicholson). 39 Supra note 37 at para 46. 27 Sir Ivor Jennings, The Law and the Constitution, 40 Connacher v Canada (Prime Minister), 2010 FCA 5th ed (London: University of London Press, 131, 212 CRR (2d) 114, 320 DLR (4th) 530, leave 1960). Andrew Heard argues that a convention to appeal to SCC refused, 33848 (September 20, can be established prior to the first precedent 2010). by the constitutional actors reaching an explicit 41 Prime ministers and premiers have long framed agreement that a convention exists, in Canadian their early election calls in terms of a need for a constitutional conventions: The marriage of law mandate on an issue or a legislature that has be- and politics (Toronto: Oxford University Press, come dysfunctional (this is how Harper justified 1991). breaking his own election law, with no political 28 See Bruce M Hicks, “The Crown’s ‘Democratic’ consequence).
36 Volume 21, Number 2, 2013 42 Constitution Act, 1982, s 41(a), being Schedule B Parliament to inform people about the constitu- to the Canada Act 1982 (UK), 1982, c 11. tional conventions. 43 Supra note 24. 44 Ibid. 45 Fixed-term Parliaments Act 2011 (UK) c 14. 46 This Act requires that the PM strike a committee in 2020, of which the majority must be MPs, to review how the act has operated and if it should be amended, so its term and mechanisms could be changed. 47 See Letters Patent (1947) C Gaz, 1, art VI “And we do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, pro- roguing or dissolving the Parliament of Canada.” 48 Australia also has publicly available Cabinet and Executive Council handbooks, but these do not discuss the reserve powers; Supra note 33. 49 See e.g., Fraser Harland, “Constitutional Conven- tion and Cabinet Manuals”, (2011) 34:2 Canadian Parliamentary Review 25. 50 Canada, Privy Council Office,Manual of Official Procedure of the Government of Canada (Ottawa: 1987) at 401. 51 Bruce M. Hicks, “The Westminster Approach to Prorogation, Dissolution and Fixed-Election Dates” (2012), 35:2 Canadian Parliamentary Review 20. 52 Rebecca Kitteridge, “The Cabinet Manual: Evolu- tion with Time” (Paper delivered at the 8th An- nual Public Law Forum, March 20 2006), online: New Zealand Department of the Prime Minister and Cabinet
Constitutional Forum constitutionnel 37