Subject: Re: "When cabinet had the power" -- " a constitution Similar in Principle to the UK"
To: "Letters (ott)" <letters@ottawacitizen.com>,
Mr Warren, Editors
Thank you for When cabinet had the power Ottawa Citizen July 6/2012 (& National Newswatch who included the column in their Sat July 7th aggregation of significant CDN thinking)
You've hit on my favourite topic - How the PMO became "king"/autocrat of Canada (quite contrarily to the design and intentions of the BNA /Constitution Act 1867)
Your column asserts:
"We have, in Canada as in the United Kingdom, executive power now entirely centralized in the Prime Minister’s Office."and"Yet the overall budgetary policy is set from the start, and political adjustments to it (such as stimulus runs) are dictated, from the PMO."
and"Ministers are there to front for policy originating in the PMO, and to take the fall when it fails or changes."
and"It was Chrétien who cleverly used Martin as his straight man: implicitly allowing him to take the blame for any cuts. That’s how things are done in a PMO-centric universe."
With further cherry-picking through your commentary we find:
"This is not how Parliament was supposed to work, or did work in the ancient past."and
"We should pine for those days"
Indeed! We should pine for the as-written truth of the "old days" and not only read Bagehot (link to The English Constitution 1867) as you suggest, but the BNA Act itself (link to Plain Language Version + Justice Dept version)
Aside -- the PET quote was "50 FOOT" nobodies (para 5 Hansard), but who's quibbling - the meaning is the same ;) must have been pre-metrification :)
You make two fine observations about our BNA/Constitution that was created in 1867 to be "similar in Principle to that of the United Kingdom"
which truly means that our system is NOT identical, and at the same time, NOT far-removed from the unwritten constitution of the Mother country.
The key differences are but 3 -
1) ours IS written and we have
2) a penultimate (local) Executive Power (superior & supervisory), residing in the Office of the Governor General (With or Without the Advice &/or Advice and Consent of some/any/all/none (s.12 vs s.13) of His/Her independent, Vice Regal advisors in the Queen's Privy Council for Canada (s.11). The as-written text ascribes to the GovGen the power to Withhold Royal assent and/or Reserve-for-Signification (s.55) any Bill presented by the (inferior) Legislative Powers of our One Parliament (s.17)
and
3) ultimate power entrusted (by themselves to themselves) in the Monarch-in-Council (until 1982 that is, EndNote #80) who holds the power to Disallow any Canadian Bill within 2 years of their receipt (by ship) of it (s.56)
In contrast in the U/K., quite functionally & factually differently (but definitely similarly in principle), there is no Office of GovGen and the U.K. Cabinet/Privy Council directly advises the bound-to-agree Monarch under the convention/tradition/principle (some say pretext) of "Ministerial Responsibility" whereby the Monarch is held faultless, if a decision must be reversed, the Minister/Ministry that proffered the "bad advice" must fall one his/her sword to protect the Monarch.
So ...after an intro to all that boring "bedrock-of-governance-in Canada" stuff that is never taught, never studied (it seems), widely misunderstood through benign neglect, but STILL the ultimate law of the land ... we can finally focus on your essential question:
"Why is the PMO/PCO so extra-ordinarily powerful in today's Canada, when the Office-Holder is but One Individual, One Cabinet Member, One MP and ... the office of Prime Minister itself is not described/mentioned in any way in 1867-1982 BNA/Constitution Acts (except as being cited as the Organizer of a few Prov-Fed Conferences in the 1982 "Patriation" changes)
Here's how... One Order in Council dated March 25/1940 (effective March 23/1940) that expanded the duties of the (Executive Power's) Clerk of the Privy Council to included duties within the (Legislative Power's) Cabinet ...AND appointed the-then Prime Minister's Principal Secretary to the new post - re-named (as today) Clerk of the Privy Council and Secretary to the Cabinet
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It might be just a co-incidence that the long-serving Clerk E. J. Lemaire had just retired on Jan 1/40 and that the GovGen Lord Tweedsmuir had suddenly died on Feb 11/40.
In the absence of any supervisory/advisory "cat" (and under cover of phony-war, emergency mobilizations/nationalization) the little "mouse" Mackenzie King got his revenge (served very cold) for the rebuff of his 1926 request for a Parliamentary dissolution in the "King-Byng Affair" (King was wrong - he had but the second greatest number of seats in the 1925 election (101) - the Conservatives had the greater number (116), albeit not a majority either)
Please examine the Order in Council P.C.1940-1121 (it's not available anywhere else) and think of how well-conceived and well-executed was Mr King's plan - his diary of March 13th/40 lines it all out.
Answer:
The PMO/PCO is so powerful because one (anti-constitutional) Order in Council made it that way ... but nobody can remember and the "institutional memories" of constitutional lawyers, constitutional professors, Supreme Court Justices, Cabinet Members, Privy Councillors, Cabinet Members, MP's, professional pundits, aggrieved citizens and smart-aleck columnists and Parliament Hill reporters doesn't go back that far.
So now it's in your institutional memory.... are you best to ignore it (after all who is this guy?) or spread it far and wide?
rce
Robert Ede,
Spokesman,
Direct 416.819.7333
"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident." -Arthur Schopenhauer (1788–1860)
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