Published on Policy Options, March 24, 2015
Prime Minister Harper has presented a motion to the House of Commons announcing an extension and expansion of Canada’s mission against the Islamic State of Iraq and the Levant (ISIL). Despite what is being reported in various media outlets (the CBC excepted), the motion isn’t asking the Commons to ‘authorise’ the mission. Instead, as with the 3 October 2014 motion, the government is requesting the House’s “support the Government’s decision” to “contribute military assets to the fight against ISIL,” and “to extend the mission to a date not beyond March 30, 2016.” Nor is the government seeking the House’s permission to expand the air strikes into Syria. Here again, the motion is asking the Commons to “support” the authorisation that the government is giving the military to conduct strikes in Syria.
Labelling the holding of military deployment votes a ‘political convention’ would bring us greater conceptual clarity.
The government’s choice of words is important here. In asking the House to support an executive decision, the government is clarifying that the authority to deploy the military and extend the mission does not belong with the Commons; the authority remains with the executive. If the courts are ever asked to rule on whether there is a constitutional convention requiring the government to secure the House’s approval before deploying the armed forces, which has happened in the past, this language of “support” will demonstrate that no such constitutional convention exists. (A chapter in a forthcoming book I’m co-editing makes this case with respect to both Canada and the United Kingdom, too.)
According to the Jennings test, which has been endorsed by the Supreme Court of Canada, three tests must be met for there to be a constitutional convention: 1) there must be a precedent; 2) political actors must think that there is a binding rule; 3) there must be a reason for the rule. By asking the House for its “support” alone, the Prime Minister is demonstrating that his government is not required to secure the Commons’ authorisation. Hence, the second test has not been met. Past votes further indicate that the first test has not been met, either.
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If we are not witnessing the establishment of a constitutional convention, what might we call this effort to involve the House in military deployment decision? I’ve previously argued that asking for the Commons’ support is a practice —one this government has followed to increase the perceived ‘democratic legitimacy’ of military deployments, and more cynically, to launder its decisions through the legislature, thereby blurring where responsibility for the action belongs.
But I’m starting to think that there is another way of looking at it. Perhaps the government is trying to establish what we might call a political convention. Whereas constitutional conventions are understood to be binding rules that forms an essential part of our system of responsible government, political conventions can be understood as norms of prudent and ethical political action. Unlike constitutional conventions, political conventions are not binding except in moral sense; they’re just the ‘right thing to do’, not something that must be done. Likewise, they would not be recognized by the courts, since they would not be part of the constitution or form part of our system of responsible government. Instead, a political convention would be an expectation of proper behaviour meant to satisfy a need or principle that cannot be prudently achieved by statute or constitutional convention.
- Philippe Lagassé, Should Parliament ‘Oversee’ National Security Affairs?
- Peter Jones, Security Review or Oversight? The Critical Difference
Labelling the holding of military deployment votes a ‘political convention’ would bring us greater conceptual clarity. The executive is not binding itself and the authority to deploy the military isn’t being transferred to the House. Rather, the Harper government is making it a moral imperative that the executive should seek the House’s support for military deployments involving combat.