Hypocrisy Watch: Liberals Cannot Condemn Conservative Senate Appointments

Today, the National Post editorial board published an editorial that, in effect, argues that the Prime Minister of Canada, Conservative party leader Stephen Harper, should not fill the 18 vacancies in Canada’s 105 seat “upper chamber”, the Senate. They fear that doing so in the weeks leading up to a confidence vote on the budget might result in public discontent, and that such discontent might have the effect of breathing some air into a Liberal-NDP “coalition” that will probably otherwise die after a Michael Ignatieff-led Liberal party votes in favour of the budget. In other words: they fear that filling the vacancies might cause the Liberals to vote-down the budget in January, and trigger an election in which a Liberal leader who has not yet humiliated himself does battle with Harper.

Their fear is misplaced. The Prime Minister should fill the vacancies. At the same time, the Conservatives – and the National Post – should nip in the bud the Liberals most likely argument: the idea that the Conservative government lacks the confidence of the House such that it is wrong – morally if not also legally – to appoint Senators before the budget vote passes. In particular, they should remind everyone of a little history.

On May 10, 2005, 153 of 303 voting Members of Parliament attending at the House of Commons voted in favour of a motion to ask the House of Commons’ public accounts committee to amend a report dating back to October 28, 2004, “to recommend that the government resign because of its failure to address deficiencies in governance of the public service.” The vote was not a money bill, but it was an explicit rejection of the House’s confidence in the Liberal government of the day, which was led by Paul Martin. The Martin government’s response was that, as a matter of legal interpretation, the motion was not technically a motion of no confidence, such that the Prime Minister needed neither to resign nor to advise the Governor General to dissolve Parliament.

In 2005, Bill C-43 was an amendment to the 2005 federal budget (intended to gain for the Liberals the support of the New Democratic Party’s MPs). As such, it was a money bill. One can make arguments – self-delusional or intellectually dishonest ones, in my view – that the May 10, 2005 motion was not a legal expression of no-confidence in the government. However, it is not seriously disputed by anyone that when a money bill fails to pass, the failure is, as a matter of law, an expression of no confidence. Such an expression would, indisputably, have required either Martin to resign or the Governor General to dismiss him, thereby requiring the Governor general either to dissolve Parliament (which would trigger an election) or to ask another MP (presumably, Harper) to assume the role of Prime Minister and form a government.

On May 19, 2005, Bill C-43 survived second reading thanks to a tie-breaking vote by the Liberal Speaker of the House. However, a Speaker would not vote on a third reading of a money bill. Late at night on June 23, 2005, after several Conservative MPs had left the House of Commons, the Liberals and NDP held an unscheduled vote on third reading of Bill C-43. By trickery, the Martin government circumvented a no confidence vote on a money bill and bought itself time. According to Martin, an election would be held after the November 1, 2005 release of the preliminary Gomery Report on the Liberal wrongdoing that history knows as the “Sponsorship Scandal” or Adscam.

What did Prime Minister Martin do with the intervening time? What did he do while, as a matter of fact, he lacked the confidence of the majority of MPs in the House of Commons? Among other things, he appointed eight Senators:

Larry Campbell (Liberal): August 2, 2005
Andrée Champagne (Conservative): August 2, 2005
Dennis Dawson (Liberal): August 2, 2005
Hugh Segal (Conservative): August 2, 2005
Rod Zimmer (Liberal): August 2, 2005
Francis Fox (Liberal): August 29, 2005
Yoine Goldstein (Liberal): August 29, 2005
Sandra Lovelace Nicholas (Liberal): September 21, 2005

So, let’s recap. In 2005, a minority Liberal government failed to defeat a motion calling upon it to resign. In fact, but – the Liberals argued – not in law, the Liberal government lacked the confidence of the house. It clung to power a bit longer by holding an unscheduled vote on third reading of the 2005 budget: in law, but – the Conservatives argued – not in fact, the Liberal government did not lack the confidence of the House. With confidence in law but not in fact, the Liberal Prime Minister appointed 8 senators.

On November 27, 2008, the Conservative government survived a vote on the Speech from the Throne which lacked any significant proposal for an “economic stimulus”. It the Speech passed with Liberal support, a few minutes after the Liberals listened to the Finance Minister read to the House the government’s economic update. A vote on a Speech from the Throne is a matter of confidence. One day later, the Liberals brought forward a notice of motion of no confidence, but the Harper government prorogued the House, such that the motion was never actually made or voted upon.

There is no way to know that Stefane Dion and Jack Layton are correct when they claim that the Harper government lacks the support of the majority of MPs: there has been no vote. But even if we give them the benefit of the doubt; even if we regard it as safe to assume that the Harper government, in fact, lacks the confidence of the House; it remains the case that, in law, there has been no expression of no confidence in the Harper government.

The Liberals cannot afford to argue that it would be legally, or even morally, wrong for Conservative Prime Minister Harper to fill the current vacancies in the Senate. To do so would be to condemn the legality of the Liberals having done so in 2005, and the morality of the Liberals for having done so. It is perhaps for this reason that, amongst all of the left-wing condemnations being committed to print over Harper’s plans to appoint senators, we are hearing little if anything – certainly nothing unambiguous, so far – from the new Liberal leader concerning the appointments. And, if Ignatieff is half as smart as some would like us to believe, I expect he’ll refrain from condemning the appointments, or using them to justify a vote of no confidence in the new year.

Two further things.

First, my view was that Prime Minister Harper should not ask the Governor General to prorogue. So far, I stand by my analysis: I still think the iron was hot for a Conservative majority and that the Harper Conservatives would have won one had the Liberals and NDP been successful in their planned no confidence motion. However, it is possible that, in his long meeting with the Governor General, the Prime Minister concluded that the governor general would invite Mr. Dion to form a government, rather than dissolve Parliament and trigger an election. If so, it was prudent to prorogue and take care of some house-keeping before the possibility of a vote of no confidence in the January budget. One hopes he will, in fact – and with the same legal authority – fill all outstanding federal vacancies, including the numerous judicial vacancies in our trial courts and courts of appeal.

Second, just a cute note. On December 13, 2006, the Harper government introduced a new bill: the Senate Appointment Consultations Act. It’s number? C-43.