‘Separation of powers’ in Canada on Kyoto

Don’t miss the ongoing conversation below regarding political and constitutional implications

The passage by opposition parties of a bill to commit the Canadian government to meeting its Kyoto Protocol obligations is a reminder that “separation of powers” is not a completely foreign idea in parliamentary democracies.

By separation of powers, I mean not the formal structures of the government system, but rather any situation in which the legislative majority and the government (prime minister or president and his or her cabinet) have different policy agendas. We normally think of such separation as being possible only in presidential systems, where the government originates separately from the legislature, and survives for its term independently of its support therein.

The conventional view of parliamentary democracy is of a system in which these things don’t happen, because the government is a creature of the parliamentary majority and can be dismissed (via a vote of no confidence) at any time over policy disagreements. However, it may happen at times under a minority government, especially one without “confidence and supply” agreements with other parties.*

The Canadian government is of the Conservative Party, which has around 42% of the seats in the House of Commons. On Wednesday, the other three parties (Liberal, New Democratic, and Bloc Quebecois) teamed up to pass the bill, without a single governing-party vote, 161-113.

The bill, which was introduced 10 months ago by Liberal backbencher Pablo Rodriguez, gives the government 60 days to table a detailed plan outlining how Canada will reduce its greenhouse gas emissions. […]

The bill urges the government to create fines and jail terms for businesses and industries that over-pollute.

The government’s allies in parliament attempted to have the bill declared invalid under a rather flimsy argument: That it would commit the government to spending against its own will. Apparently, the governing party has forgotten that in a parliamentary system, the only will that matters is that of the parliamentary majority.

On the other hand, the parliamentary majority can’t enforce a law on its own. That is what the executive is for. Normally, in a parliamentary system, the executive is assumed to be the government supported by a majority, so the government enforces its own majority’s laws.

With a government wanting to do one thing in this policy area and the parliamentary majority another, we have a genuine separation of powers. If this bill also passes the Senate, will the government implement a law it opposes? Or will it ignore it?

If the government ignores the law, the opposition has one sure way out of the situation: It can pass a no confidence motion and remove the recalcitrant government from office. But do the three parties that passed the bill want a new election?** If not, then the separation of powers remains, parliamentary government notwithstanding.

* If a minority government has confidence and supply agreements, one or more parties without cabinet representation commit to vote to retain the government in the event other opposition parties introduce a no-confidence motion against it, and commit also to vote for the government’s budget (which is always a mater of confidence). In exchange, the parties to such agreements are granted certain policy concessions and consultations before major government bills are brought to the floor. See the current New Zealand government, for example.

** Technically, a new election would not be required. The Liberals, NDP, and Bloc could agree on a coalition or minority Liberal cabinet. However, that is almost unimaginable.

0 thoughts on “‘Separation of powers’ in Canada on Kyoto

  1. The cabinet could escape from the law, but at risk of a vote of no confidence, by advising the governor-general to veto the bill under Section 55 of the Constitution Acts. There’s not a lot of precedent, but there’s not a lot of precedent for a bill passing the lower house against the government’s wishes, either. The royal veto is a dead letter in the UK but it still exists under the written constitutions of most Commonwealth realms. There’s no provision for the parliament to override a royal veto.

  2. Interestingly, this is Harper’s own strategy coming back to bite him in the rear. During the previous Liberal minority government, the opposition parties talked about the idea of passing their own bills, or denying the government’s bills, without allowing the government to consider the votes matters of confidence. Some worried we could see the bizarre situation of a government claiming it has lost the Parliament’s confidence, while the opposition insists it must continue to govern. I’m trying to find references to this, but the best I’ve got at the moment is this.

    As to the current bill, according to the local papers the Tories’ strategy is basically to look for a loophole. It looks like they may follow the letter of the law and create a “plan” for meeting the Kyoto target, but then not actually follow the plan. Alternatively, they could request of the Environment Ministry to create and implement a plan, but stipulate that they can’t spend any money to do so since the bill has no specific spending requirements. Both of these options would open the government up to lawsuits from environmental groups and/or a vote of no-confidence.

    I find both the current case and that of the previous government quite silly. The opposition should not be able to force the government into doing something, nor should the government be able to ignore legislation. As far as I’m concerned, if the government is not willing to abide by the results of a vote, then it’s necessarily a matter of confidence.

  3. Vasi, one of the benefits of a minority government (one in which the government doesn’t have control of the House of Commons) is that Her Majesty’s Loyal Opposition can work with the other parties to defeat passage of bills they do not consider in the best interest of Canadians.

    Generally, this has in the past produced some very effective legislation as the government has to work harder to have their agenda passed. In the past the minority Prime Minister who wanted to be re-elected and form a majority has managed to walk the fine line between being run by the opposition and running the government and brought forth an agenda favourable to the majority of Canadians.

    With the arrival of the boy Harper and his right wing, western based agenda and American style politics this type of give and take politics has effectively been sidelined. It is interesting to note that the former leader of the Official Opposition who quarterbacked the attitude of setting their own legislative agenda and the current minority Prime Minister who has been broadsided with that attitude aimed at his government, are one and the same person.

    In regards to the Bill C-288 just passed with the support of the opposition parties, this bill is not yet law. It must be passed by the Senate before being given Royal Assent from the Governor-General. The Senate may choose to pass the bill as sent to them or send it back to the House of Commons to either die on the order paper or be reworked and debated again. All of this takes time.

    It is becoming very clear that the government is expecting to fall over the budget they are preparing to present to the House in March which would plunge Canada back into an election campaign (third in three years) and thus kill Bill C-288 as it would die on the order paper when Parliament is dissolved for the election.

    That election writ would only make official what this government has been doing for the last year, election campaigning without an election call. That is a style that may be tolerated in the US but it is one that runs pretty thin with mainstream Canadians and Harper may well find himself back in the opposition for some years to come.

  4. PattiM, I agree that it’s good when the opposition holds a minority government to account. My point was that when the opposition puts forward a bill against the will of the government, the government only has three valid choices: 1. Prevent passage of the bill, usually through negotiation and compromise, 2. Faithfully execute a bill it doesn’t particularly like, or 3. Consider the issue a matter of confidence, and allow the government to fall. There is no fourth option of allowing the bill to pass, but then acting like it hasn’t. Somehow, GWB with his signing statements and the Harper government both seem to believe they can simply ignore laws they dislike.

    As for an election, I’m not so sure that Harper expects one very soon. It’s likely that a Quebec election will be held in March, and there’s a good chance Harper will throw some goodies at Quebec to try to ensure Charest’s reelection. The rest of Canada won’t necessarily like this very much, especially if the PQ wins anyhow in Quebec–which is why I suspect Harper may want to put some distance between the two elections.

  5. Harper has backed down from the threat to ignore the law, but a careful reading of the legislation indicates what is likely to happen, and it may, in fact, work in Harper’s favour.

    The crown is required to generate a detailed plan to meet the Kyoto targets and plan for any consequences due to the implementation thereof.

    So, all that needs to be done is to create a plan with the worst-case scenario, a plan that meets the obligations but presents such a negative outlook for Canadian society (backed up by studies, experts, etc) that people will beg them not to implement it.

    Fait accompli.

  6. Just a small clarification on the original post: While this particular Bill does not appear to require the spending of money, section 54 of the Constitution Act, 1867 does make it unlawful for the House of Commons to pass an appropriation or tax bill without the recommendation of the Governor General, i.e. money bills must be introduced by the government. So under the Canadian constitution, the line about “the only will that matters is that of the parliamentary majority” is not technically accurate in this respect. The trick with this Bill is that it only asks for a “plan”.

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