The Future of Province House PEI

Article 1 / 11 , Vol 34 No 2 (Summer)

Vol 34 No 2The Future of Province House PEI

On April 29, 2010, the Prince Edward Island Legislative Assembly considered a motion for review of the 1974 federal-provincial agreement regarding the general management of Province House. The following extracts are from debate on the motion by the Leader of the Opposition, the Premier and the Dean of the House.

The Prince Edward Island Legislative Assembly

Article 3 / 11 , Vol 34 No 2 (Summer)

The Prince Edward Island Legislative Assembly

Province House is perhaps best known to Canadians as the Birthplace of Canada, where the Fathers of Confederation met in 1864. A sandstone structure with Greek and Roman architectural lines, it was completed in 1847. It is now a national historic site, tourist mecca and still continues as a legislative chamber. Over the years, it has been witness to Royal visits, state funerals, countless demonstrations, protests, sit-ins, celebrations, rallies, vigils, debates, deliberations and occasional random acts of graffiti artists. This paper will examine the evolution of the legislature, the electoral system, the Island’s political culture and how it is reflected and legislative procedures and processes.

The Prince Edward Island Legislative Assembly, established in 1773, is the second-oldest parliament in Canada, the first having been established in Nova Scotia in 1758. The establishment of the colonial government, and its subsequent evolution, was the result of one of the most unusual arrangements in British colonial history. Land in the colony, then part of Nova Scotia, was awarded by lottery to proprietors in 1767 who undertook, as part of the conditions of their grants, to settle the colony with Protestants, pay quitrents (a form of taxation) to the Crown and to fulfill various other conditions. The new proprietors, many of whom were to not fulfill the conditions of their grants, petitioned the Crown for the establishment of a separate government free from the influences of Nova Scotia. In return, the proprietors agreed to defray the expenses of the new colonial government. Prince Edward Island thus became a separate colony in 1769. The subsequent conflicts between absentee proprietors and tenants, known as the “Land Question,” dominated Island politics for more than a century.

Discretion and the Reserve Powers of the Crown

Article 4 / 11 , Vol 34 No 2 (Summer)

Discretion and the Reserve Powers of the Crown

A recent article by Nicholas MacDonald and James Bowden1 quite rightly stressed that in the democratic age the reserve powers of the Crown should be rarely used. They say that “most scholars” agree that it is only under the “most exceptional circumstances” that the governor general may reject the prime minister’s advice. I entirely agree with that statement, and would go further and say that virtually all scholars agree on that general proposition. That indeed is the constitutional convention that enabled a parliamentary system dominated by the Crown to evolve into a parliamentary democracy. But that convention clearly implies a corollary convention about the exceptional circumstances when the Crown might exercise discretion and say “no” to a prime minister. If there is a convention that governors general normally accept the advice of prime ministers in exercising their legal powers in relation to parliament, there must be a convention or principle that enables us to identify those “most exceptional circumstance” when the governor general would be constitutionally correct to reject the prime minister’s advice.

On that question, it is my view, and it is a view that I believe is shared by a great many constitutional scholars, that “in this democratic age, the head of state or her representative should reject a prime minister’s advice only when doing so is necessary to protect parliamentary democracy.” Those words of mine are quoted, with what I take to be approval, by MacDonald and Bowden in their article. The justification for the convention is to ensure that parliamentary government is democratic and not controlled by an hereditary head of state or her representative. It follows that if a prime minister’s advice seems seriously adverse to the functioning of parliamentary democracy, it should not be followed. An authoritarian prime minister might be as much a threat to parliamentary democracy as an authoritarian sovereign. In each case we rely on conventions, a body of constitutional or legal ethics”, as A.V. Dicey explained, for guidance on the proper use of legal powers.2

Tax Bills and the Ways and Means Process

Article 5 / 11 , Vol 34 No 2 (Summer)

Tax Bills and the Ways and Means Process

The consideration by Parliament of the Crown’s requests for taxation is one of the cornerstones of our system of government. Although the rules of procedure are fairly straightforward for the introduction of a tax bill, there are many parliamentary issues which are brought into play and merit reflection. Among them are the amount of consideration and resources required for increasingly large and complex Budget Implementation Bills; the repetition found in some debates; the inclusion of non-budgetary matters in the Budget Implementation Bill; the implementation of tax initiatives before legislation is enacted; the effect of tax alleviations proposed by private Members on the government’s management of the fiscal plan; and the preclusion of any debate on private Members’ bills which propose tax increases. These and other issues related to ways and means are examined in the following article.

One of Parliament’s fundamental roles is to give consideration to the Crown’s requests for spending and taxation. The procedures in the House of Commons relating to spending protect the financial initiative of the Crown by requiring that a royal recommendation – solely obtained by a Minister – be attached to any item proposing an appropriation. The procedures relating to taxation are slightly different. Unless a change to a tax law is contemplated, tax provisions continue from year to year. Whenever the Crown wishes to propose a new tax, to continue an expiring tax, to increase an existing tax, or to extend a tax to a new class of taxpayers, it is accomplished through what is known as the “ways and means” process – a procedural term referring to the manner that revenues are raised to meet government expenditures. The rules of the House stipulate that the adoption of a ways and means motion (outlining any increase in the incidence of taxation) must precede first reading of a tax bill. As only a Minister may give notice of a ways and means motion, the financial initiative of the Crown is thus protected for tax purposes.1

A Primer on Federal Specialty OmbudsOffices

Article 6 / 11 , Vol 34 No 2 (Summer)

A Primer on Federal Specialty OmbudsOffices

Many studies have focused on the various Officers of Parliament even though there is little agreement about the classification of such Officers. Less has been written about Canadian OmbudsOffices which include some Officers of Parliament and others that are part of the Executive. Speciality OmbudsOffices encompass a range of variations as demonstrated by the eight chosen for consideration in this article. The heads of these offices and other senior officials were interviewed in May 2010.

At the outset there is need to clarify usage of the term “Ombudsman”. Statutes and other official references usually pertain to the position of the Ombudsman, while common usage may either be to the position or to the current incumbent who occupies that position. It is thus necessary to be cognizant of the context in which the term is used. We will often use the term “OmbudsOffice” where appropriate because the staff in the Ombudsman’s office usually plays a key role in processing and deciding public complaints.

The Nomination of Women in the 2010 New Brunswick Election

Article 7 / 11 , Vol 34 No 2 (Summer)

The Nomination of Women in the 2010 New Brunswick Election

Of the 236 candidates in the 2010 New Brunswick provincial election, 71, or about 30%, were women. This represented a significant increase over the number of female candidates in previous provincial elections. This article looks at a number of factors that may have contributed to the change. It is based in part on interviews conducted over a one month period with candidates from the Liberal, Conservative, New Democratic and Green parties. The candidates interviewed were Francophones aged 50 to 65. Three of them were from urban areas, one from a rural area.

There are at least six factors that may have accounted for the increase in the number of women candidates in the 2010 New Brunswick provincial election.

Parliamentary Book Shelf

Article 8 / 11 , Vol 34 No 2 (Summer)

Parliamentary Book Shelf

The Saudi Majlis Ash-Shura: Its National & International Roles by Dr. Mohammed Abdullah Al-Muhanna , Riyadh, 2009, 212 pages.

With the increased attention being given to the Middle East and their insurgent revolutions demanding more open and democratic societies, it is extremely beneficial to have up-to-date scholarly books pulling back the curtain on the legislative institutions within these autocratic regimes so we can learn more about their formal powers, how they are structured and operate, and how they relate to the broader civil society. Dr. Al-Muhanna, was born and still lives in Riyadh and has graduate degrees from George Washington University (U.S.A) and Durham University (U.K.). He has given us an excellent overview of one of the world’s most intriguing parliamentary chambers, Saudi Arabia’s Shura Council.

Letters

Article 9 / 11 , Vol 34 No 2 (Summer)

Letters

Prorogation as Constitutional Harm

Sir:

In your spring issue, Nicholas MacDonald and James Bowden offer a novel reply to the numerous constitutional concerns raised by constitutional scholars, political scientists, and parliamentarians regarding the 2008 prorogation of Parliament. They are to be commended for providing a clear argument, calling attention to the troubling case of the 1873 prorogation, and pointing out the distinctions between asking for prorogation and asking for dissolution. Unfortunately, their argument is deficient in several respects.

The authors rely upon the 1873 prorogation of Parliament to suggest the Governor General has no discretion in matters of prorogation. They argue that in 2008, Michaëlle Jean had to follow the advice of Prime Minister Stephen Harper to prorogue Parliament. Yet, as the authors themselves point out, in the 1873 example Prime Minister Sir John A Macdonald requested a prorogation to avoid the release of a committee’s report, not to avoid a scheduled confidence vote. Whatever the consequences of releasing the report might have been for the Macdonald government in 1873, the situation in 2008 was quite different. The question before Mme Jean was whether she should prorogue Parliament and thus enable Harper to avoid a duly scheduled confidence vote that he was sure to lose. By agreeing to prorogue, she upended core principles of responsible government, and the legitimacy of Canada’s democracy became contested.