Wednesday, September 25, 2019

History of courts, prime ministers and parliaments

It's likely true that Canadian parliamentary procedure is going to be affected by the British Supreme Court's ruling that a prime minister's advice to the Crown can be reviewed by the courts.  Errol Mendes underlined that in the Globe yesterday.  I went to Twitter (a swamp I mostly avoid ) to see if there was more Canadian commentary, but it seemed pretty thin.

I find myself thinking the British judges were influenced by Brexit panic and fury at Johnson's rampant contempt for all rules and conventions not convenient to him. Understandable! But it feels like a hard-cases-make-bad-law situation to me.

The court ruled that the prime minister cannot use the prorogation power to frustrate the will of parliament, and advice to the crown that breaks that rule is therefore of no effect..

But surely Parliament retains the power to prevent a prime minister from frustrating its will.  The British House of Commons can bring down Johnson's government any time it wishes, and it can put in place a replacement government without an election any time it chooses.  It was because the House declined or failed to do either of these things that the Queen had to conclude that Johnson retained the confidence of the House and was entitled to advise her.  The irresponsibility of Johnson is limitless, but the irresponsibility of the House in declining to replace him seems to me the nub of the issue.

The Harper example from 2008 is similar.  I was not eager to see that one assessed by the courts.  If the House wanted to punish Harper for abusing them, they could have withdrawn confidence and put in an alternate government.  Okay, they did not want to do so, but having chosen not to, I'd say they were acknowledging that Harper was entitled to advise the Crown.

Deep waters for me, for sure, and I hate giving any aid and comfort to Boris and Brexiteers. But we seem to have a dearth of strong swimmers in constitutional waters, so....

Update, September 26:  Helen Webberly responds from Australia:
I agree with every word. ...
But why don’t they have another EU referendum? The world changes and voters change
their mind within 3-4 years (as we can see in election results). I think if there was another referendum now, 65% would vote to stay in the EU – less perhaps in
England and more in the rest of Great Britain. 
I am less interested in Parliament retaining the power to prevent a prime minister
from frustrating its will. Prime ministers are voted in and voted out of the position, by other Parliamentarians, very easily in the Australian and New Zealand experience.
Well, referendums exacerbate the plebiscitary, populist, bypass-the-legislature mindset that sustains prime-ministerial autocracy, I'd suggest.  And while Australian parliamentarians do remove and replace prime ministers, it's long been very difficult to do so in Canada, where leaders are not selected by caucus. Britain in recent years has followed the Canadian example, with the results to be expected: neither Johnson and Corbyn would have been selected by their parliamentary caucuses, yet they remain leaders and free to act independently for indefinite periods.

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