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Dueling experts

The Parliamentary fight over the meaning of yesterday's motion has now morphed into a publicity battle. Who can make the best case based on Constitutional Law? The Liberals have released their stable of experts to be available for interviews and for writing op-ed pieces in Liberal-friendly newspapers. One of them is Errol P. Mendes, who is described as a professor of constitutional and international law at the University of Ottawa. In the Toronto Star he makes his pitch:

Does the Canadian public need an eminent parliamentary expert such as C.E.S. Franks of Queens University to tell us that these motions cannot be regarded as votes of confidence?

Common sense would tell us that the motions that are being proposed are procedural motions that may, if passed by the respective committees, ultimately be considered as votes of confidence.

We know that in everyday life, we tell others that they cannot do indirectly what they can't do directly.

Indeed, with the Liberals supported by the New Democratic Party in the committees, it is also doubtful that these procedural motions would even pass at the committee stage, let alone in the full House.

This makes it even more problematic that these motions should be regarded as proper votes of confidence.

Experience from the mother of parliaments at Westminster should tell us that votes of confidence are grave matters that should not rest on procedural tricks.

In that Parliament, some past British governments have not even regarded taxation bills as votes of confidence.

Votes of confidence should be reserved for passing judgment on money bills of the government and proper votes of confidence submitted to the House of Commons, not to committees of the House, by opposition parties.

These foundations of responsible government in our parliamentary system rely on opposition parties acting responsibly.

It is also troublesome that the opposition parties will soon get the chance to make a proper confidence motion on the budget implementation legislation that has been tabled and will be the subject of debate this week.

Can anyone find an argument in there? I read it as a lot of hand-waving mumbo-jumbo. He talks about precedence, but doesn't give examples, he mentions other 'experts' but doesn't give their arguments, and heaven knows what he means when he says: "in everyday life, we tell others that they cannot do indirectly what they can't do directly." Basically, if I understand it correctly, he's saying that the opposition is being 'irresponsible' by not letting the Liberals continue to uncoil their nefarious schemes according to their own schedule. They'll get their chance when the Liberals let them. (And hey. Can't a professor of constitutional and international law write decent paragraphs?)

I was sent a link with the opinion of an expert on the other side. Andrew Heard is an associate professor in the Political Science Department of Simon Fraser University. He says:

At first glance the motion appears to be simply a procedural matter, sending a matter back to the finance committee with an instruction to amend its report. However, it should not matter what procedural context a vote of confidence occurs in.

What makes a vote one of confidence is the content of the motion. In order to qualify as a confidence vote, a motion has to contain wording that either states the lack of confidence explicitly, calls upon the government to resign, accuses the government of gross impropriety or incompetence, or questions the authority of the government to remain in office. However the the motion is worded, the essence of a confidence motion is to embody the House's judgment that the government is unfit in some way to govern. That specific wording can take many forms, and examples of this variety are found in Canadian provincial and federal precedents.

The fundamental basis of a confidence vote is that the elected members of the legislature express their collective view of the government. If that view conveys a loss of confidence or states that the government should resign, then the government must either resign or call an election.

The wording of the motion passed on May 10, 2005 indicates that it should be considered a clear vote of confidence. What is important in this motion is that the House had to collectively is express its view on whether the government should resign. One could not vote for the motion without agreeing that the government should resign, which is the essence of a non-confidence vote. While the wording of the motion is convoluted, the essential content is a clear expression of non-confidence.

The current motion is also strikingly similar, in procedural terms, to that proposed by H.H Stevens on June 26, 1926. That motion also recommended that a committee report be amended and precipitated the whole King-Byng crisis, when the Governor General refused a dissolution to King on the grounds that he should not avoid a confidence motion then before the House but not voted on; this was the Stevens' motion. For information on those events, see: House of Commons Debates, 1926, Vol.V, June 22 to June 25.

In light of the past precedents, and especially the relevance of the 1926 motions on the Customs Affair, the current motion appears to be clearly a vote of confidence which would normally require the government to resign or call an election after losing the vote. It is a fundamental blow to the government's authority for a majority of the House to agree on a motion that it should resign.

You can judge for yourself which side makes a better case.

Mendes' arguments were the best I could find supporting the Liberals in this morning's news. But they're so pathetic, I feel a little guilty using them to compare the Liberal and Conservative points of view. If anyone can find a better statement of the Liberal position, let me know so I can put it up here.

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