PART 2 Flashcards
What characterizes parliamentarism?
The House of Commons decides who governs. Executive is responsible it. Legislature limits the executive.
Executive must always maintain the confidence of the House, if not, no legitimacy to govern.
What is the trend with respect to the power of the Canadian PM?
There is a centralization of the power within the executive. Strong executive getting stronger and question of legislature control over executive.
How is the senate selected?
Senate is selected by the executive from chamber of confidence and creates the government (executive power)
What is personalization of power?
PM gets to run the government.
What is the relationship between non-confidence votes and majority government? Why?
There is a higher probability of a non-confidence vote with a minority government than a majority one.
Majority government can rely consistently on the probability that their own members will always vote for them (parties are disciplined)
What is a majority government?
If a party has the majority of seats in the house, they form a majority government.
What is a minority government?
The government party has only a plurality of seats, but not a majority, so can be out voted
How has party discipline in the House of Commons changed over time? How was this proven? Author?
Almost perfect party loyalty after WW2
A study of all the votes of all the legislators in the House of Commons and whether they were aligned with their caucus.
Godbout
What does higher party discipline entail?
Threat of non-confidence vote used to be high so executive was on the shorter leash, now there is loyalty of the parties, so the executive has more power.
What does 1867’s loose fish to Pierre Elliott Trudeau’s trained seals mean?
Loose fish were independent-minded MPs who used to vote against governing parties. They turned into trained seals. The rise of party discipline in Canada since 1867 has been unparalleled.
What partly explains party discipline?
Career goals:
Hard to win an election as an independent
Upwards mobility in the party (PM has mechanisms to influence legislator career paths)
What are the two meanings of the crown? Which author uses which meaning?
The state as a legal person (public government). Can be sued and act as a litigant in criminal trials.
The formal executive (HRH or GG)
Lagassee uses formal executive meaning
What is technical v real power? Author?
False accusation: real power belongs to PM, and GG only has technical power
In reality: GG has the real power (appoints PMs, judges, dissolves parliament), but by convention, defers to the PM (rise of PM), but GG makes final decision.
Heard
What is meant by regalisation, not presidentialisation? Author?
Growing PM power should not be thought of as presidentialisation. Acquiring more “royal” power.
PM’s power rests on appointment power (indirect rewarding of party members) whixh induces party discipline
Lagasse
What is biggest danger of the PM’s growing power?
There is power to politicise the judiciary (independent courts).
What is section 38 of the CA 1867?
The Governor General summons parliament (House of Commons)
What is section 5 of the CA 1982?
Constitutionally entrenched time limit on the Governor General who must make parliament meet once a year.
What is prorogation? What is interesting about it?
Suspension of a parliamentary session
It is not in the Constitution
What is the Letters Patent 1947 (3)?
Document from the monarch that writes down the powers that have been delegated to GG.
Repeating things in the Constitutional text, but the word prorogues shows up.
It is in the power of the GG to summon, dissolve, and prorogue parliament.
What is section 54 of the CA 1867?
It is GG’s agenda-setting requirement for the parliamentary session. There must be a throne speech.
What is the throne speech? What are its related conventions?
The act of agenda-setting at the start of a session
By convention, there is a vote on the throne speech (do the people in the meeting accept the agenda). Any motion on the agenda is a vote of confidence.
After prorogation, the government faces a new throne speech and thus a confidence vote.
What is section 50 of the CA1867? Has it ever been used?
Dissolution: There is a constitutionally prescribed maximum date for parliament (5 years) following the return of the Writs. If no dissolution, parliament expires the day after the 5-years.
No House of Commons in history of the Dominion has expired because there is always an election before.
What are the Writs of election? What happens to them when parliament is dissolved before expiration?
A document issued officially orders an election’s holding and sets out its details. It certifies who won and returned to GG (five days from writ return is parliament expiration date)
The GG, when deciding to dissolve parliament before expiration, issues a proclamation (executive order) to issue new writ of election.
What happens upon prorogation and dissolution of parliament (4)?
Both prorgation and dissolution:
The business of parliament ends (senate nor House of Commons nor their committees meet)
All business of both chambers dies on the order paper: all bills that were in progress are void (even if awaiting royal assent).
There is always still a government (still MPs and PM). Even between session, dissolution and summoning of a new parliament.
Distinction between prorogation and dissolution is the election (selection of new parliament) and thus Caretaker period
What is the caretaker period?
Moment between dissolution and before writs are returned where there remains a government but there are conventions regarding their behaviour (can’t pass bills, use powers of appointment, etc..)
What are the Governor General’s reserve powers? When can he use them? What is controversial?
The circumstances where the Governor General can do things without or against advice of PM
He can use them when the PM dies
When following the deference to PM becomes unconstitutional
Explain the prorogation crisis of 2008 (5). Author?
The Conservative government of Steven Harper, with a minority government, faced opposition that seemed to be able to coordinate; they were prepared to vote down the minority government in a vote of non-confidence.
PM evaded non-confidence through Prorogation.
The fundamental premise of parliamentarianism that you must face the music
Steven Harper went to GG Michelle Jean and asked that she prorogue parliament.
GG Jean makes Steven Harper wait 3 hours in the waiting room. She gives him his prorogation. Coalition of opposing party falls apart during prorogation.
Heard
What is controversial about the prorogation crisis of 2008 (2)? Author?
Was the advice of the PM unconstitutional, and is this where the convention writes out?
Did Michael Jean have the right to use her reserve power or is she bound?
Heard
Who is the author who wrote an opinion on the 2008 prorogation crisis? What is their opinion (3)?
Heard:
PM’s advice to prorogue to avoid vote of non confidence was unconstitutional. It was GG’s job to use reserve powers and stop it. GG Michaelle Jean made wrong decision
Role and importance of confidence convention (central premise of parliamentary democracy). It was the job of the GG to not allow the PM to evade the house; GG did not protect parliamentary democracy,
GG set a worrisome precedent
What is the difference between political and Political
political: related to politics or governmental matters. It describes processes, activities, or ideas involving the governance of a country
Political: partisan (parties)
Explain the built in tension between the executive and law enforcement.
The executive is partisan and part of the executive role is law enforcement. This makes law enforcement seem political and Political. This is false. Conventional protections
Why is it wrong for law enforcement to be Political (4)? How is this stopped?
Criminal law is public law enforced on behalf of public good (Criminal law is political)
Criminal law is where the coercive power of the state is the most clear: investigation, prosecution, and incarceration.
Until 1970s: Criminal prosecution could lead to death penalty
Any legitimate state must protect idea that the defence of criminal cannot be a weapon for partisan/private gain
Regulated by convention
How is a protection built so criminal law enforcement is not partisan when executive is partisan (2)?
Treat different parts of executive differently: Appropriate role of particular ministers (minister of justice, attorney general, public prosecutors)
As MPs, every minister of the crown is responsible to the legislature (parliament), must maintain confidence of the house
Explain the conventions of the Attorney General and Minister of Justice
Convention: one person assumes both roles, usually lawyer or someone with legal expertise
Explain the minister of Justice’s role (2).
In charge of advising, developing policy about the law for cabinet (not litigation /cases).
Since 1982, the Charter of Rights and Freedoms, in-house legal review that advises cabinet on legislation for charter compliancy.
Explain the Attorney General’s role (3). What has changed since 2006?
The chief law officer of cabinet
Cases and litigation; Represents the crown (crown’s lawyer)
Cabinet oversight over civil litigation and criminal prosecution.
Since 2006, independent office (Independent public prosecutors) delegated power of deciding whether prosecutions advance.
Can the Attorney General overrule the Director of Public Prosecution? If so, in what cases? Is it a cabinet decision?
AG can overrule director of public prosecution, intervene in decisions to prosecute a case or not
Happens in extraordinary circumstances to pursue public interest
It is not a cabinet/partisan decision, it is an individual Attorney General decision who is responsible to the house (prosecutorial independence)
What is the Shawcross doctrine?
Written in 1951 by Sir Hartley Shawcross, an Attorney General in the UK
Written convention, not an official act or document with legal weight
Respected outline of how to manage Attorney General tensions within cabinet. How MPs are to behave within cabinet.
What does the Shawcross doctrine imply about the Attorney General’s role (2)?
AG must assess context and public interest; prosecutorial decision is not about crime; Weighed against some public interest
In finding out public interest, AG can ask cabinet for advice. But, there is no obligation to do so; Should not be put under pressure by Cabinet colleagues
Explain the SNC Lavalin affair (4). Author?
SNC Lavalin was an Montreal based engineering firm that had fraud and corruption charges
If they were criminally convicted, government contracts could no longer be possible. If convicted, no contracts for Quebec, and all jobs will disappear.
SNC wanted a deferred prosecution agreement (DPA), refused by the director of the public prosecution.
Whether attorney general should intervene (she has the power to determine public interest). Issue of prosecutorial independence (Pitted AG against other MPs and PM (partisan))
Murphy
