Harper's new rules revisited: a reply to Knopff and Snow.

• Author: Schneiderman, David
• Position: Rainer Knopff and Dave Snow's response to Stephen Harper

This article offers a response to arguments put forward by Rainer Knopff and Dave Snow in the Canadian Parliamentary Review about the 2008 prorogation controversy. In '"Harper's New Rules' for Government Formation: Fact or Fiction?" (Vol. 36, No. 1), Knopff and Snow dismiss the theory that the Conservative government and its well-known supporters in the punditry believed that changes in partisan control of parliamentary government could only occur following fresh elections, thereby establishing "new rules". Instead, they suggest the arguments of government supporters at the time, most notably those of political scientist Tom Flanagan, fit within the mainstream of Canada's parliamentary tradition and engaged with an "older consensus" articulated by constitutional expert Eugene Forsey in The Royal Power of Dissolution. In his response to this piece, the author is critical of Flanagan's engagement with Forsey's book-length argument and suggests Forsey's conditions for dissolving parliament and holding a new election were not met in the face of the proposed coalition government in 2008.

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What constitutional sense can we make of the prorogation controversy of December 2008? Prime Minister Harper claimed that the proposed Liberal-NDP coalition could not take power without a fresh election. Anything short of a vote flouted democratic principles. Conservative talking points alleged this amounted to a 'coup d'etat.' Opinion writers Tom Flanagan (1) and Michael Bliss (2) jumped into the fray, Flanagan alleging that the coalition's "apologists didn't pay attention in Political Science 101" and instead promoted a "head-spinning violation of democratic norms." (3) The opposition's conceit, maintained Bliss, was that "they can legally succeed in what millions of Canadians see as the overturning of the outcome of the democratic election, and do it without giving Canadians the ultimate say in the matter." (4) Could not governments change hands without fresh elections? Though coalition governments at the federal level have mostly been the exception, one would think that this was entirely consistent with Canadian parliamentary traditions.

For this reason, Peter Russell felt the need to restate what he called the "golden rule." First, parliamentary elections "are not like hockey games." Party leaders do not "win the right to govern simply by leading the party that gets the most seats," rather, they have only the privilege of forming a government that has the confidence of a majority of the House of Commons. (5) Second, under parliamentary rules of government, if Harper lost the confidence of the House, the governor general could call on the coalition government, led in the interim by Stephane Dion, if it had a reasonable prospect of securing majority support. Russell coined the term "Harper's new rules" to describe these new terms of engagement. (6) Aucoin, Jarvis and Turnbull agreed that "changing the government without an election has always been considered a possible outcome following the defeat of a government on a vote of confidence." (7) The deep disagreement over what the constitutional rules entailed during this episode, they argued, lent credence to their view that the absence of clear rules regarding the functioning of important features of parliamentary democracy undermined the operation of responsible government in Canada.

The problem with the views of the Prime Minister and his supporters, then, was that it seemed deeply at odds with history and tradition. (8) Conservatives, moreover, were uncharacteristically slow to identify how their views fit within that tradition. Five years after the event, Rainer Knopff and Dave Snow attend to this deficiency by claiming that the Prime Minister intended to lay down no new rule that the defeat of a minority government always results in a new election. (9) They respond specifically to Russell and Aucoin, Jarvis and Turnbull's characterization of "Harper's new rules": that parliamentary elections result in the election of the prime minister and that the prime minister cannot be changed without another election. (10) This characterization of Conservative talking points and editorial opinion, Knopff and Snow argue, is a manufactured one. (11) Neither Harper nor his proxies, like Flanagan, promoted an "elections only" view of governmental transition. They made no claim that a change of government necessitates a fresh election in every case, only in this case. On most other occasions --what they call "normal" circumstances--no election would be warranted. (12) "Harper's new rules," they conclude, "turn out to be rather mythical." (13)

Both Russell and Aucoin, Jarvis and Turnbull looked to (former Harper advisor) Tom Flanagan for an explanation of the 'basic tenets of the Conservative's version of the constitution.' (14) Regrettably, Flanagan never laid out an explanation in any comprehensive way. Rather, all that the critics referred to was a short editorial opinion published in the Globe and Mail in January 2009, as the crisis was winding down. (15) There, Flanagan maintained that electing the prime minister is one of the "most important...