Trudeau's Prorogation of Parliament is a Mistake He Must Be Allowed to Make

There are ways to make decisions and there are the actual decisions one makes. The former is about procedures, the ‘how’ questions. The latter is about substantive calls, the ‘what’ questions. Now it only takes a moment’s thought to realise that no method or procedure for making decisions will be perfect. We are fallible, biological creatures. We humans are in the ‘least-bad’ business. And for me, it has long seemed that the least-bad way to make political decisions was to let the numbers count. Majoritarianism. Democracy in other words, at least in its old-fashioned sense of counting everyone equally and voting. (Human rights lawyer types and top judges have these past couple of decades tried to redefine democracy so that it includes a hefty substantive component, namely that these elites also approve of the decisions made – and of course the judges don’t put it that way; they talk in terms of a decision having to be in keeping with ‘the rule of law’ or ‘sufficiently rights-respecting’ or some such.) But the point is any procedure will sometimes misfire. Majoritarianism misfires, hence Winston Churchill’s famous quip that democracy is the worst form of government… except for everything else. But then, too, letting a bunch of unelected judges have a veto over majoritarianism misfires too. No option is – make that can be – perfect. You pick your poison.

All that means that sometimes you will find yourself in a position where the procedure you think has the best hit-rate for making decisions has, in your view, thrown up a bad decision. Obversely, sometimes a procedure you think suboptimal might throw up a good substantive outcome. So here’s a big question. In those sort of situations do you stand by what you think is the best way to make calls overall or go with the substantive outcome you happen to like in this instance? If you opt for the latter, of course, you can’t blame others whose substantive preferences differ from yours for doing the same. No one’s attachment to majoritarian democracy would then be anything other than skin deep. “I’m for it only as long as it delivers outcomes I like.” And that is plainly not sustainable. Or put differently, with democracy (or any decision-making procedure) you’re going to win some and lose some. The benefit of democracy is that when you don’t like outcomes you can spend a few Saturdays campaigning for the team you like. No substantive call is locked-in beyond the next election. By contrast, if you don’t like what some judges have decided, often under the guise of proclaiming what our supposedly timeless, fundamental rights are, well, all you can do is hope to replace such judges with more congenial ones some time far in the future. (And for conservatives, with a legal caste whose median member is far to the Left of the median voter, this is a mighty big ask.)

That’s some background to what is happening in Canada. Justin Trudeau just resigned after driving his party’s popularity down to 16% in the polls. Parliament is in recess for the Christmas break, due back at the end of January. And the further-Left-than-Trudeau party, the NDP, has promised to no longer prop up Justin’s minority coalition Government. (For cynics, Pierre Poilievre, the Tory leader, has been claiming for months that the NDP would continue to prop up Trudeau until the NDP leader’s gold-plated Parliamentary pension vested – which will happen just before the looming no-confidence vote – and right on cue, as it vests, this party’s leader announced he would bring down Trudeau. This blatant self-serving has tanked the NDP support too. As has the revelation that this socialist party’s leader drives a Maserati – though I’m betting he has fewer houses than Albo.)

So an election is coming. It’s just a matter of when. The current polls indicate this would be near-annihilation for Trudeau’s Liberal party, possibly seeing it fall to fewer than 10 seats – the benefits of a First Past the Post voting system is that it doesn’t work as a protection racket for the two main parties as Australia’s woeful one does. Here’s the problem for the Liberal party. Parliament is due to resume at the end of January and that will mean an immediate no-confidence motion (which will succeed) and an election. The Canadian Libs won’t have time to pick a new leader. Damned if they do and damned if they don’t. That is why Trudeau went to the Governor General and asked her to prorogue Parliament. That’s when the Government has the Head of State put Parliament into a sort of suspended animation. You can’t do that beyond the deadline for the next election but historically around the Anglosphere the democratically elected Government can do it. And it’s happened a lot as you go back in time. In fact, back in 2008 then Canadian PM, Conservative Stephen Harper, asked the Governor-General to do so and she did. It’s a prerogative power. It’s a bog-standard part of our system.

Or it was until British PM Boris Johnson tried to prorogue the British Parliament to get Brexit through in the face of a Tory party with many Remainer MPs who wanted Parliament to block it. Boris wanted to prorogue for a few weeks till it went through. The activist lawyerly caste, to a man Remainers, kicked in and went to court. They got the case expedited to the U.K. Supreme Court in the second Miller case (the first one was about the prerogative power and equally egregious). All 11 judges, to the best of the available evidence, were Remainers. And they overturned 300 years of precedent and inserted themselves – the unelected judges – into the process and quashed Boris’s attempted prorogation. In effect, they gave themselves a veto over its use, wholly disinterestedly you understand.

In that case I liked the would-be substantive outcome, Boris getting Brexit through. With Trudeau’s requested prorogation I would much prefer an immediate election. But you know what? I hate the idea of unelected judges inserting themselves into the process of what’s ‘reasonable’ and ‘appropriate’, as though these nearly wall-to-wall ‘Yes to the Voice’ Australian judicial types are representative of anyone. If Trudeau tries to avoid an election for an extra month or two the voters can deliver a remedy, a harsh one. Of course the activist lawyer types love judicial involvement as regards what’s reasonable. (It’s becoming an epidemic in Australia.) So expect them to bring a case (here’s one already) to block Trudeau. For all the reasons above I hope they lose. (And unlike the Brexit case, Trudeau has appointed just about every top judge in Canada – wall-to-wall politically sympathetic Lib judges – so cynics can draw their own conclusions about outcomes.)

But remember. Best procedure should trump the odd substantive win under a bad procedure.

James Allan is the Garrick Professor of Law at Queensland University. This article first appeared in Spectator Australia.