Peace, order and good government
GERALD OWEN
Globe and Mail Update
December 5, 2008 at 3:00 PM EST
''Unwritten laws," such as conventions of the Constitution, have a strange way of generating a lot of writing. Those conventions rise to the surface in any minority government, and they have done so especially in the past 10 days of Canadian politics.
The fact that constitutional conventions — such as the rules and practices on who decides on dissolving Parliament, and when — are not formulated in one authoritative document is not a mere perversity, odd as it may seem to have rules that no court can enforce or even interpret.
They have their purposes. They are much like principles of international law: understandings and practices that nation-states usually accept, in the absence of a world government or international courts that can enforce their decisions. International law, for example, provides guidelines for a world in which war is entirely possible.
Civil war is entirely possible, too; national governments can become weak, and conflicts among classes, regions, ethnic groups, religions, parties and even branches of government can lead to anarchy and violence. Canada's constitutional conventions emerged from civil wars and revolutions, mostly in Britain, but also here, out of rebellions and the struggle for responsible government. They are attempts to express a consensus, in order to prevent disagreements from getting out of hand.
The phrase "conventions of the Constitution" is a 19th-century formulation, but assertions and understandings about what is, or is not, constitutional go back much farther.
Three phases of English history left resonant precedents. The first was the conflict between the proverbially bad King John and the barons, leading to a settlement in Magna Carta in 1215, but continuing as a struggle between the next king and Parliament until 1265.
A second constitutionally disturbed era began after the Tudor monarchs, who knew how to manipulate and intimidate their Parliaments, were succeeded by the Stuarts. The parliamentary opposition to King James I became intense in the 1620s. To grossly simplify, Parliament's position was a renewed assertion of "no taxation without representation" — a principle already well on its way to being established in Magna Carta, though now mainly associated with the 18th-century English settlers on the North Atlantic seaboard who pursued this theme enthusiastically.
In 1628, James's son and successor, Charles I, lost patience and suddenly prorogued Parliament, saying, "I owe an account of my actions to none but God alone." Prorogation is a scheduling matter, though, in 1628 as in 2008, it meant playing for time. But it is not basic to the character of the regime, as dissolution is, which is why the principles about when to prorogue, and not to, are ill-developed.
Prorogation carries a strong echo this week, but the cases of Charles Stuart and Stephen Harper differ greatly (not only in that Charles, an outstanding collector, had far greater feeling for the arts). A year later, the King took a counter-revolutionary step, dissolved Parliament and did not summon another for 11 years, the longest gap ever, a time known as the "personal rule" of Charles I. In 1640, with Presbyterian Scotland in revolt, he could find no other way of raising new money than to convoke a new Parliament, which turned out to be the longest ever. Civil war broke out, and Parliament's victory soon morphed into the military dictatorship of Oliver Cromwell. After a show trial, Charles was beheaded. The "Long Parliament" did not quite peter out until 1660, a shadow of itself.
The conflict continued, however, through the reigns of Charles's two sons, the second of whom, James II, was deposed in the Revolution of 1688 (often called "glorious"), which declared the King to have constructively abdicated, in favour of his daughter Mary and son-in-law, William of Orange. This agitated period did not quite end until the second attempt to restore to the throne Charles' descendants failed in 1745.
The third, almost non-violent phase from which our current conventions of the Constitution evolved began when King George III (reigning from 1760 to 1820) tried to reassert royal power, with mixed success, in times that were shaken by the American and the French Revolutions.
In 1783, George made the second-last monarch-initiated dissolution. He had dismissed one cabinet and called upon William Pitt the Younger to be prime minister, who lacked, or soon lost, majority support in the Commons. The King was not a democrat, but he resorted to the people, and Pitt won the election of 1784. In the end, this royal victory amounted to an important democratic precedent.
In 1832, the passage of the "great" Reform Bill of 1832, which substantially expanded the electorate, involved a nearly revolutionary constitutional crisis, in which, with misgivings, King William IV accepted the advice of his Whig (or Liberal) ministers. (Joseph Howe's peaceful attainment of responsible government in Nova Scotia and the rebellions of 1837 in Central Canada were all part of the same reform movement.)
Two years later, King William thought the Whigs had lost the people's support. At William's invitation, the Tory leaders, the Duke of Wellington and Robert Peel, formed a government, and in 1835 the King dissolved Parliament so they could get a majority in the Commons. This move backfired; the Whigs' popularity rebounded and they won the election.
A little later, the young Queen Victoria was educated by Lord Melbourne, her first prime minister (whom she loved as if he were her father), in Whig views of the political order, which in many ways still prevail.
The second editor of the Economist, Walter Bagehot, wrote a brilliant book in 1867 called The English Constitution, in which he said that Queen Victoria still had the power to dissolve Parliament in theory, "but it has passed so far away from the minds of men, that it would terrify them, if she used it, like a volcanic eruption from Primrose Hill," (a mere 256 metres above sea level, in North London).
In that same year, the British North America Act (now called The Constitution Act, 1867) imported all this in a few words, giving Canada "a constitution similar in principle to that of the United Kingdom" —although the achievement of responsible government in the 1840s had already done the same thing.
Bagehot set out to describe the way British government and politics actually worked, not to lay down doctrines; on the contrary, he tried to liberate his readers from existing constitutional theory. But his sparkling observations helped real practice harden into new doctrine.
The King-Byng controversy of 1926, in Canada, was an argument about how to apply the conventions around the power to dissolve Parliament. It is quite germane to the present crisis. Like Mr. Harper's party today, Arthur Meighen's Conservatives had more seats in the Commons than any other party. Most Canadians now expect the party with the largest number of MPs to form the government, and many think that this is required by democracy; that belief may eventually take strong enough hold to become a convention of the Constitution.
But more is not necessarily most, or more than half, and a mere plurality can be quite ineffectual, as Mr. Harper may or may not find on Jan. 26, 2009.
In 1926, Lord Byng, the Governor-General, made a mistaken judgment about the viability of a Meighen government, and W.L. Mackenzie King did very well out of expressing great outrage in the election that followed, winning a working Liberal majority, thanks to some Liberal-Progressives.
Byng's error seems obvious in hindsight. Nonetheless, it is an advantage of conventions, as opposed to legal rules, that a governor-general has some leeway and discretion, with powers held in reserve, to assess who will really be able to get things through Parliament.
Conventions of the Constitution may seem to pull themselves up by their own bootstraps, as if they were understandings and practices because they are in fact understood and practised. But in his 1885 book Introduction to the Study of the Law of the Constitution, A.V. Dicey, an academic lawyer, managed to pinpoint their practical force. Though conventions of the Constitution (a phrase he coined, as far as I know) cannot be the basis for lawsuits, if they are not adhered to, Parliaments would not pass budgets, so that governments would stop working; police and soldiers would desert, not having been paid, and previously law-abiding citizens would stop paying taxes. Anarchy would break out.
Thus, liberty depends on powers that expire, such as our taxing and spending measures.
We no longer need a consensus among great landowners, small landowners, bishops, merchants and so forth, but any society has groups with the potential of breaking apart: regions, classes, ethnic groups and political parties. Some conflicts are too big to be settled by lawsuits and judicial interpretation of written laws, so there is need for accepted rules based on some sort of balance of power, analogous to that which preserves times of comparative peace in international affairs.
While the prospect of civil wars and revolutions is fortunately remote, there is always a possibility that a volcano may erupt on Parliament Hill. And we have constitutional conventions to preserve us.
