The constitutional background to the current situation

FOR IMMEDIATE RELEASE            

November 28, 2008

Eugene Forsey on Dissolutions, Coalitions and Minority Government

Ompah, Ontario – “If Eugene Forsey were alive today, the democratic options open to Parliamentarians in the upcoming confidence vote would be much clearer,” says Helen Forsey, daughter of the late Senator and constitutional expert.

“My father would be telling politicians and media alike that there is no need for a fresh election, and no need either for any formal coalition of opposition parties to replace the Conservative government if it is defeated in the House.”

She cites the straightforward explanation of the process given in her father’s popular reference book, “How Canadians Govern Themselves”, published by the Library of Parliament and now in its 6^th edition.

“If a Cabinet is defeated in the House of Commons on a motion of censure or want of confidence, the Cabinet must either resign (the Governor General will then ask the leader of the Opposition to form a new Cabinet) or ask for a dissolution of Parliament and a fresh election... If a minority government is defeated on a motion of want of confidence very early in the first session of a new Parliament, and there is a reasonable possibility that a government of another party can be formed and get the support of the House of Commons, then the Governor General could refuse a dissolution."  

Forsey is concerned that a lack of understanding of the constitutional options could lead to costly and undemocratic decisions that would seriously undermine Canadian democracy. “There’s a lot of confusion and misinformation in the public discussions around the expected vote on the ‘financial update’ package,” she says. “If we assume that a defeat in the House will automatically trigger an election, that gives the government a great big stick with which to beat the opposition and the electorate into submission. That’s what happened last time, and we mustn’t let it happen again.”

Even knowing that the Governor General can refuse to dissolve the new Parliament and ask the Leader of the Opposition to form a government, there is still a mistaken belief that this would require a formal coalition, she says. “Canadians must not allow this democratic opportunity for an alternative government to slip away just because no coalition emerges. Ordinary minority governments can work perfectly well if they respect the spirit of cooperation and openness Canadians want and need in these challenging times.”

For more information, please see attached backgrounders, and contact: 

Helen Forsey, Ompah, Ontario (613) 479-2453 (home office); hforsey@magma.ca (until December 15^th,2008),         hlforsey@sympatico.ca (after December 15^th, 2008)

John Whyte, Law Foundation of Saskatchewan Professor, College of Law, University of      Saskatchewan, Regina, (306) 966-5606; (home 306-757-9775), john.whyte@usask.ca

Donald Wright, Dept. of Political Science, University of New Brunswick, Fredericton, NB, E3B 5A3, (506) 458-7494, wrightd@unb.ca

Backgrounders

A.  Minority government – no need for a coalition!

There is suddenly much talk of a possible coalition of opposition parties, and the impression being given is that without such a coalition, a defeat of the Harper government would “force an election”. As the late Senator and constitutional expert Eugene Forsey and the entire history of Parliamentary Cabinet government make clear, this is simply not true, and it is vitally important to get rid of that mistaken assumption. Canadians must not allow our current opportunity for a change of government to slip away because no coalition emerges.

1. We don't need a coalition; regular minority government represents a simple and totally viable alternative. Common or garden minority government could work just fine, as it has lots of times in the past. The largest opposition party would form a cabinet, and introduce legislation deliberately designed to gain the necessary support from the House. This would involve consultation, discussion, co-operation, on each bill or policy, but it would not require any formal agreement among the parties. Whenever the parties holding the balance of power wanted changes to the proposals, they would negotiate with the (new, more co-operative) governing party so as to get something they could all at least live with. One example is the way the NDP won important concessions from the Paul Martin minority government on a number of issues.

2. Regular minority government could happen immediately; a coalition would take time. We almost certainly don't have the time right now to achieve the kind of formal agreement a coalition represents. Coalitions involve complex negotiations and delicate balancing which can be very challenging and time-consuming. They can also be internally divisive, at least temporarily, within the parties themselves. With a potential confidence motion coming before the House immediately, it is not realistic to ask three very different parties to slap something together in just three days. 

3. A formal coalition among the three parties currently in opposition in our Parliament would have serious structural drawbacks. The differences among the parties on some issues are enormous, and each party is apt (quite rightly) to be vigilant about not compromising its basic principles and identity.  Moreover, a coalition usually involves a cabinet that includes members of two or more parties, and the issues around who gets which positions could easily scuttle the whole thing. Even if a formal coalition were agreed to initially, the price each party would have to pay might soon become too high for many of its MPs (eg. if the Bloc demanded to be put in charge of federal-provincial relations, this would certainly be too much for many federalists in the other parties.)

4. A formal coalition might well be less stable than a regular minority government. Under current conditions - given the particular parties involved and the issues we are facing - a coalition could easily fall apart, which would leave a very bad taste in people's mouths and make further co-operation considerably more difficult. (In a regular minority situation, the parties can fail to agree on a piece of non-essential legislation without incurring any serious repercussions at all.)

To sum up, a coalition might be great, but it would have its drawbacks as well. What we absolutely do need now is an alternative to the current regime, a more co-operative and democratic minority government which would consider the input of the other parties in developing legislation and policies that could win the support of a majority of MPs. No coalition is needed for this – it is simply the way minority governments have always tried to work, before bullying and bluffing became a shameful new norm.

B.  An election if necessary – But not necessarily an election! Eugene Forsey explains constitutional options

By Helen Forsey

After our costly and frustrating October 2008 trip to the polls, Canadians are once again being held hostage to the notion that a government can never be defeated in the House of Commons without triggering an election. If Eugene Forsey were still alive, we would know that the weapon being held to our heads is only a toy gun.

The late Senator Forsey was widely recognized and respected as an expert on Canada’s constitution. Whenever political dilemmas loomed or processes needed clarifying, politicians, media and citizens alike sought his lively and learned counsel. Today, with our country again facing the uncertainties of a minority government, a multi-party opposition and difficult times ahead, his input is urgently needed.

The first thing he would point out in our current situation is that our Constitution provides safeguards against a series of unnecessary elections. One of those safeguards is the right of the Governor-General, in certain circumstances, to refuse a government’s advice to dissolve Parliament and instead to call on another party in the existing House of Commons to try governing.

If the Canadian public, the politicians and the media had understood this vital element of our Constitution and invoked it early in the last Parliament, things could have unfolded very differently from what they did. The opposition parties could have voted together against the government on one of its confidence motions and defeated it. At that point the Governor-General, rather than automatically granting a dissolution and plunging us into an early election, could have called on the Leader of the Opposition to form a cabinet and try to get the support of the House to govern. If the new government had then developed its legislative and budgetary measures in ways that would gain majority approval by our elected representatives, the 39^th Parliament could have got on with its work, and quite possibly worked very well.

But nobody, from the Governor-General to the opposition politicians to the media to the general public, seemed to realize that this was an option! Now, after all the hassle and expense of the recent election, we’re back in essentially the same place. And the minute the PM decides that this new Parliament also “isn’t working” as he wants it to, it could happen again - unless we start understanding and implementing the options our Constitution provides.

“If [a government] loses its majority support in the House of Commons, it must either make way for a government of the opposite party or call a fresh election,” states Eugene Forsey in “How Canadians Govern Themselves”, his now-classic popular reference book published by the Library of Parliament. “In Canada, the government and the House of Commons cannot be at odds for more than a few weeks at a time. If they differ on any matter of importance, then, promptly, there is either a new government of a new House of Commons.”

Contrast this clear either-or alternative with the false assumption that if the Commons doesn’t agree to the government’s program, there has to be a fresh election. “The Canadian Constitution very sensibly allows governments to appeal from Parliament to the people when the public interest so requires,” Forsey explained. “But it does not follow that it provides no means of protecting fundamental democratic rights against abuse of these powers. It does; and the means is the reserve power of the Crown as guardian of the Constitution.”

My father defended those “reserve powers” as a pillar of our democracy. His PhD thesis on the royal power of dissolution of Parliament documented the constitutional precedents and the logic behind them, and demolished the popular but mistaken theory “that the Crown is just a rubber stamp for Cabinet, or that if it isn’t, it ought to be.” In particular cases, he argued, the power of the Crown to refuse a dissolution may be all that stands in the way of a government “spanking the electorate into submission” by repeatedly forcing them back to the polls.

“Unquestionably, the [reserve] power exists,” he wrote, citing the instances of its use and the wide range of constitutional authorities and politicians who upheld its propriety. “Unquestionably also, it is a power to be exercised only in very special circumstances: ordinarily the Crown must follow the advice of the cabinet. But many people feel that there must be no exceptions whatsoever. Is this in fact a safe doctrine?”

One of the scenarios he used to make his case against the “rubber stamp” theory starts with a familiar situation. “Suppose the government gets a dissolution, and no one gets a clear majority,” he wrote. “The government retains office and meets the new Parliament - as it has a perfect right to do - hoping to pick up enough votes to keep it in power. But the new Parliament defeats it. It declines to resign; governments don’t automatically resign on defeat. Instead, it asks for a second dissolution, and upon a further defeat in the ensuing Parliament, a third, and so on, until the electors give in or revolt. Is the Governor-General bound to acquiesce in this game of constitutional ping-pong from electorate to Parliament, from Parliament to electorate again, back and forth interminably?”

In 1926, Mackenzie King accused Parliament of having “ceased to be in a position to make a satisfactory decision” about who should govern. In 2008, Stephen Harper blamed a “dysfunctional” Parliament that “wasn’t working”. Both meant the same thing: a Parliament which failed to do what they wanted it to do. And for both men, the prescription was also the same: get a willing Governor-General to dissolve the unsatisfactory Parliament and bring on another election.

Forsey called this “a ‘heads I win, tails you lose’ theory of the Constitution. It bears not the faintest resemblance to parliamentary government,” he said. “Yet on the rubber stamp theory of the Crown’s powers there is no escape from it, no protection against the Cabinet dictatorship it would rivet upon the country.”

“It is the rubber stamp theory which is undemocratic,” he concluded. “It makes existing governments irremovable except by their own consent. Such a doctrine is a travesty of democracy. It delivers every Opposition gagged and bound into the hands of any jack-in-office. The jack-in-office may loosen the gag and the ropes - [perhaps] so much that we don’t realize they’re there. But he can tighten them again whenever he pleases, and as tight as he pleases. This is not democracy. It is despotism; more or less benevolent, perhaps, for the moment, but despotism none the less.”

The antidote is an understanding of the reserve power of the Crown to refuse a dissolution, and the political will to demand that it be used when necessary.

All this is not to say that it would be simple for the Crown to refuse her cabinet’s advice. As Eugene Forsey noted, a Governor-General would rightly be reluctant to do so without excellent reasons, and without a new cabinet willing to accept the responsibility. The reserve power on dissolution comes into play only in exceptional circumstances – when the latest election is still relatively recent, no great new issue of public policy has arisen in the interim, and the makeup of the new Parliament provides the practical possibility of an alternative government.

But the fact that the reserve power exists is one key to counteracting the paralyzing sense of helplessness that has turned so many Canadians off politics. It means we can choose to move from frustration and wishful thinking to the practical possibility of the opposition – a majority in this new Parliament as in the last - forming a government. The various parties would have to set partisan selfishness aside, but there would be no need for a formal coalition, just enough cooperation for each bill to pass. That, after all, is how responsible minority government works.

Democratic alternatives become real options when we understand and insist on the constitutional principles surrounding dissolution. Whether or not we like a particular government, having those options is essential to maintaining our democracy. We need not be hamstrung by the constant fear of another election. We must shake off our ignorance of the constitution and use the tools it offers to make our parliamentary system work for us.

Writer Helen Forsey is a daughter of the late Senator Eugene Forsey. She is currently working on a book about his legacy to Canadians.

Reference material:

Forsey, Eugene A., Freedom and Order, McClelland and Stewart, Toronto, 1974. See especially: “The Crown and the Constitution” (pp. 34-50), “Mr. King and Parliamentary Government” (pp. 87-109), and “The Problem of Minority Government in Canada” (pp. 109-123.)

Forsey, Eugene A., How Canadians Govern Themselves, Library of Parliament, 6^th edition 2005. See especially pp. 28-29.

Forsey, Eugene A., A Life on the Fringe, Oxford University Press, Toronto, 1990. See especially pp. 102-108.

Evatt, H. V. and Eugene A. Forsey, Evatt and Forsey on the Reserve Powers, Legal Books, Sydney, 1990. This volume includes the entire text of Forsey’s The Royal Power of Dissolution of Parliament in the British Commonwealth, with his new Introduction, “The Present Position of the Reserve Powers of the Crown”.

We would most likely have been spared both this latest election and the continuing curse of a Harper government. Our current affliction is largely due to our collective political ignorance, exploited and manipulated by the Powers That Be to create the “learned helplessness” so evident now in our battered and bruised electorate.

The specifics will depend on how the situation unfolds, but the deciding factor will be the opposition’s collective willingness to

call Harper’s bluff early in the new session. Backed by informed public pressure, they should defeat him in the House as soon as he starts pushing his reactionary policies, and demand the chance to govern sensibly and co-operatively in his place.

If the opposition lacks the gumption to do this, or if the Governor-General simply knuckles under and grants Harper another dissolution, the public outcry should be so loud that Eugene Forsey will rise from his grave to join us.

Harper’s minority Conservatives spent their first term in office demonstrating their contempt for the people and their representatives. They systematically sabotaged the work of multi-party committees, used Orders-in-Council to avoid Commons debate and defy the law, and took the art of parliamentary bullying to new heights by declaring every government bill a matter of confidence, daring MPs to defeat it.

On the “rubber stamp” theory, any such defeat in the House would automatically trigger a new election, something opposition politicians are generally reluctant – for good reasons and bad – to provoke. Whether or not Harper knew that premise was false, he was certainly willing to bet it wouldn’t be challenged. Sadly, he was right. The opposition parties mouthed their platitudes but never mentioned any constitutional alternative. While they played dead, Harper was able to keep pushing through his appalling legislation and stay in office till the time of his choosing.

************************************

My father was writing in 1953, but more than half a century later Canadians are again being held hostage to the false notion that a government can never be defeated in the House of Commons without triggering an election.

After our recent futile trip to the polls, we are a country massively frustrated and disillusioned with our own politics. Our alienation is due to many elements – our continuing enslavement to the “first-past-the-post” electoral model, short-sighted partisan vote-grabbing among rival opposition parties, macho posturing and point-scoring that freezes out more collaborative approaches or dismisses them as “weak”.

Although he died in 1991, his writings continue to provide detailed analysis and guidance on how our sophisticated system of Parliamentary government works.

our vast ignorance of our own Constitution, particularly the sophisticated safeguards it offers against abuse. One of those safeguards is the right of the Governor-General, in certain circumstances, to refuse to dissolve Parliament and instead to call on another party in the existing House of Commons to try governing. If the public, the politicians and the media had understood this vital element of our Constitution and invoked it early in the last parliament, things would have unfolded very differently.

It is high time the politicians, the media, and the public at large were reminded that this is not the case.

that our Constitution provides options.

Harper’s bullying tactics depend on the continuing ignorance and docility of the opposition, the media and civil society – an ignorance regularly fertilized with forkfuls of bullshit from politicians and the media.

One example - out of many - was a recent statement by CBC Radio News that Harper’s technique of declaring every Commons vote a matter of confidence forces the opposition to either “support the government, force an election, or not vote at all.” It is precisely this widespread but false belief that reduces the opposition majority to a state of helpless frustration and allows the government to walk all over us.

“One of the biggest threats to parliamentary democracy in Canada,” he wrote, “is the dogma that any government, regardless of circumstances, always has a dissolution in its pocket; that an appeal to the people is always proper.”

    CBC news writers and announcers apparently share this mistaken assumption with the various politicians who believe themselves caught on the horns of a near-impossible dilemma.

The two recent examples below are both from radio, as I seldom watch television); any slight variance from the actual text would be because I simply grabbed a pencil and took hurried notes as I listened:

1) a reference to Mr. Harper's technique of declaring every Commons vote a matter of confidence, "forcing the Opposition to either support the government, force an election, or not vote at all" (The World at Six, October 15th, 2008) and

2) a report on Mr. Dion's reaction to the Speech from the Throne, in which he "said his party won't force an election over [a Throne Speech] too vague and too bland to be offensive" (The World at Six, November 19th, 2008)

    Please understand that I am not singling out the CBC in this matter; indeed, politicians and public officials, other media, academics and the general public are being contacted as well. The matter is urgent, since the new Parliament is already sitting, and crucial decisions over the coming months will depend on whether or not this error is corrected.

“Triggering elections” - Eugene Forsey says: “Hold on – that’s not necessary!”

C. Eugene Forsey on Dissolutions, Coalitions and Minority Government

Ompah, Ontario – “If Eugene Forsey were alive today, the democratic options open to Parliamentarians in the upcoming confidence vote would be much clearer,” says Helen Forsey, daughter of the late Senator and constitutional expert.

“My father would be telling politicians and media alike that there is no need for a fresh election, and no need either for any formal coalition of opposition parties to replace the Conservative government if it is defeated in the House.”

She cites the straightforward explanation of the process given in her father’s popular reference book, “How Canadians Govern Themselves”, published by the Library of Parliament and now in its 6^th edition.

“If a Cabinet is defeated in the House of Commons on a motion of censure or want of confidence, the Cabinet must either resign (the Governor General will then ask the leader of the Opposition to form a new Cabinet) or ask for a dissolution of Parliament and a fresh election... If a minority government is defeated on a motion of want of confidence very early in the first session of a new Parliament, and there is a reasonable possibility that a government of another party can be formed and get the support of the House of Commons, then the Governor General could refuse a dissolution."  

Forsey is concerned that a lack of understanding of the constitutional options could lead to costly and undemocratic decisions that would seriously undermine Canadian democracy. “There’s a lot of confusion and misinformation in the public discussions around the expected vote on the ‘financial update’ package,” she says. “If we assume that a defeat in the House will automatically trigger an election, that gives the government a great big stick with which to beat the opposition and the electorate into submission. That’s what happened last time, and we mustn’t let it happen again.”

Even knowing that the Governor General can refuse to dissolve the new Parliament and ask the Leader of the Opposition to form a government, there is still a mistaken belief that this would require a formal coalition, she says. “Canadians must not allow this democratic opportunity for an alternative government to slip away just because no coalition emerges. Ordinary minority governments can work perfectly well if they respect the spirit of cooperation and openness Canadians want and need in these challenging times.”

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