Sunday, December 7, 2008

What Michaelle Knew

In my post on Parliamentary Democracy below, I argued that the post of Prime Minister is not well defined in Westminster style democracies. (For example, neither the Constitution of India nor the Canada Act define the office.) There is no clear rule about the length of a Prime Minister's term, or about the conditions under which s/he may hold office. It is also not clear what powers attach to this office. In constitutional fiction, s/he is the first minister of the Queen or the Head of State; by convention, the Queen or Head of State acts on the advice of the Prime Minister. When can the Queen or her viceroy dismiss a Prime Minister? This is far from clear, and constitutional epistemology plays a role.

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.

Tortured reasoning? Perhaps, and I'll return to that in a moment. Think of the reasoning that some citizens express on the airwaves and the internet. We know that the electorate rejected Stephane Dion, they say. How can the GG call on him to form a government? This reasoning is irrelevant in two ways. The first and most direct reason for irrelevance is this: as pointed out by many learned people (and by myself in my post on Parliamentary Democracy), we don't get to vote for the Executive. But secondly, just think of constitutional epistemology. If the GG does not know that Stephen Harper has lost the confidence of the House, she surely does not know that the electorate does not want Stephane Dion as PM. We all know it, if we know anything at all. But she does not. Not constitutionally.

OK. On this thread of reasoning, Michaelle Jean was right to prorogue Parliament on the advice of her first minister. Parliament is to open once again on January 26th. On this day, Jean will deliver a speech from the throne. The next day, the Government will present a budget. If the opposition coalition holds, the Government will be defeated on one or both. It will then demonstrably have lost the confidence of the House.

Harper will then advise the GG to dissolve the House and call a fresh election. But as somebody who has lost the confidence of the House, he will not have the right to expect that she will take his advice. He will argue that he has the confidence of the people. But by constitutional epistemology, she will not know this. Perhaps some Canadians will think they know this, and who am I to say they are wrong. The problem is that what they know, or don't know, is irrelevant. The GG cannot know such things.

So here's what I think Michaelle Jean must have said last Thursday: Mr Harper, I will take your advice and prorogue Parliament. But if you lose a confidence vote in the House early next year, don't expect me to dissolve the House. You can't have an election until it is clear that a Government cannot be formed.

If she said all of that, she has my respect. If she only said the first thing, she does not.


N Treanor said...

Very interesting post.

Let's agree with this:

"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."

Let's also agree with this:

"the GG does not know, in a constitutional sense, that he does not have the confidence of the House."

I'm not sure it follows from these assumptions that:

"Michaelle Jean was right to prorogue Parliament on the advice of her first minister."

That would seem to follow only if the GG's not knowing, constitutionally, that the PM doesn't enjoy the confidence of the House entails her knowing, constitutionally, that he does enjoy the confidence of the House.

That might be right -- but it deviates wildly from our ordinarly notion of knowledge, where, in general, it is possible to fail to know ~p without knowing p, and it would be interesting to see an argument for it. One wants to say here: She didn't know he did, and she didn't know he didn't.

The issue is tricky, however, because it seems that every action she had available to her is such that it would either involve (i) acceding to his request, or (ii) not acceding to his request (even sending him back to the House to demonstrate that he has its confidence would involve not acceding to his request). And this in a sense forces her into a position of having to either know he did or know he didn't -- she has no action available to her that is consistent with the 'agnostic' position.

Mohan said...

Excellent point. Perhaps it's a principle of constitutional epistemology that you continue to know the last thing you knew until you know the contrary. That's counterintuitive in normal epistemology too.

Jim Johnston said...

Interesting analysis. However, the GG was sufficiently convinced of absence of confidence in the PM to call an election in September, even though no non-confidence motion had been passed. Is it sufficient for the GG to have the PM tell her that confidence does not exist?

Is that consistent with the notion that the letter addressed to her from the three opposition leaders did not constitute knowledge?

I have another hypothesis. I think the GG acted to give the situation time to breathe. If the coalition is not sufficiently strong to survive until January, then it does not deserve to govern. If it does, then she will have given the government every opportunity to avert the change.

Alex said...

There's a further issue here. Had Harper attempted to *dissolve* parliament, the Lascelles principles (including the King-Byng precedent) would have applied, and arguably the GG would have been legally in the right to refuse dissolution and call Dion. But there is no such document for prorogation - a serious bug in the constitution, as this essentially allows a prime minister with a confederate or weak GG to rule indefinitely by decree.

Mohan said...

Thanks Jim. In September, the PM advised dissolution, and he clearly did have the confidence of the House when he did so. So the GG was obliged to follow his advice.

Alex raises an interesting question about what would have happened if Harper had advised dissolution rather than prorogation. Would the GG have had to accept his advice? I rather think he is right: given the recent election, she might have been justified in refusing.

Dr. J said...

Post some more, Moma dear! We want to know what you think of Iggy.