Sunday, December 7, 2008

On What The GG Knew and Could Not Know

H/T to Adam Rawlings, who has put us all onto this fascinating post by a former philosophy professor of his. Here's the nut of it:

If the PM enjoys the confidence of the House of Commons, then the Governor-General must do his or her bidding. On Thursday December 4th, Prime Minister Stephen Harper asked the GG to prorogue Parliament so that he would not have to face the House on a vote of confidence. Should she have acceded to his request? If he had the confidence of the House, she was obliged to do so. If he did not, she was obliged not to do so.

Here's a problem in what I call constitutional epistemology. Does the GG know that Harper did not have the confidence of the House? Well, in the ordinary sense, yes. Nobody could doubt that a majority of members of the House had no confidence in him. They said so. They signed pieces of paper to that effect.

Nevertheless, they had voted to receive the Speech from the Throne. So when the Commons had voted last in a confidence measure, they demonstrated confidence in Harper's government. Thus, the GG does not know, in a constitutional sense, that he does not have the confidence of the House.

I love tidy reasoning like that. Nice.


  1. She had to know because Harper had to tell her because that is why he wanted a prorogation.

  2. Of course she knew that he probably would not have the confidence of the house if it came to a vote. But the point this guy is making is that, technically, the Prime Minister must be assumed to have the confidence of the house until he doesn't - i.e. until the vote is taken - and up until the point where he loses such a vote, she is bound to do as he advises.

    Kind of like ruling evidence inadmissible if the police uncovered it through improper means or before they should have.

  3. That logic cuts both ways, Jennifer. Recall that, when Harper called that last snap election, his excuse was that the CPoC did not have the "confidence" of Parliament.

    Says who?

    Harper hadn't lost a single vote of confidence, yet was using a very informal definition of the term "confidence" to defend having an election.

    And now, suddenly, everyone's being terrifically pedantic. How convenient all around.

  4. CC,

    That may have been the excuse, but he really didn't need one. If the GG is advised by her first minister that Parliament should be dissolved, he doesn't have to give her any reason at all. Since the government had held for about two years at that point, she was within her rights to take his advice and drop the writ.

    That said, did anyone not on the BT blogroll seriously suggest that Harper had a reason to go to an election? I recall the condemnation from the other side of the aisle being pretty universal.

  5. A pretty weak argument if you ask me. It only argues that the GG's actions were not illegal according to parliamentary procedure. Which, I don't recall anyone ever claiming. It does nothing, however, to suggest that Harper's actions were any less "dickish" than they were. Harper knew he didn't have the confidence of the house. And, IMHO, that's what's important.

    If Harper cared about the will of the people of Canada, he would have stood the democratic vote, respected its result, and not run and hid from it like a coward. Instead, Harper said: "Up yours Canada! Stephen Harper has to do what's best for Stephen Harper!"

    So, now we've got a leader who every person in Canada knows is operating as Prime Minister without the confidence of the house, and is only able to do so by exploiting a technicality. That crap is fine for contestants on Survivor, not a leader of a democratic nation.

  6. ADHR:

    Normally, I'd agree with you that Harper didn't need an excuse for that last election, except that his government had earlier passed that "fixed election dates" legislation and, if memory serves, the very rationale he was using to justify sidestepping it was -- you guessed it -- that he'd "lost" the "confidence" of the House. Which he hadn't.

    In short, Canada's Cons really are trying to have it both ways. And while I'm willing to accept that technically they can pull this off, it doesn't make it any less sleazy.

  7. I don't think anyone here is claiming that Harper's actions haven't been outrageous and possibly illegal. However, people had been criticizing the GG for not turning him down in this specific instance, and I was simply pointing out that her options really were strictly limited by both law and tradition.

    It was still a horrible precedent, but it may have been a worse one for her to go against a PM who still retains (technically) the confidence of the House, as much as we all might have preferred the result. I don't think anybody really wants a GG asserting that kind of power.

    Blame Harper.

  8. Actually, I'd say "blame the system". It allows governments to get away with sleazy moves like proroguing Parliament to avoid a confidence vote or calling snap elections after passing fixed-date election legislation. The problem is institutional. That's what I take the original argument to highlight: technically, nothing untoward happened; since something untoward seems to have happened nonetheless, we should change the institutions which clearly aren't strong enough.