Constitutional Metamorphosis

The major party leaders have made some curious statements regarding the formation of a government in the aftermath of an election where no party claims the majority of seats. First Thomas Mulcair, then Stephen Harper, and then Justin Trudeau as well, have asserted that whichever party wins more seats than the others should be called on by the Governor General to try and form a government. But that’s not what constitutional conventions, as understood by anyone who has actually studied them, say.

The conventions of responsible government require the government to enjoy the confidence of the House of Commons; but an incumbent a government is, we might say, deemed to be enjoying the confidence of the House until a vote of the House proves otherwise. The prorogation crisis of 2008, when the Governor General took the Prime Minister’s advice to prorogue Parliament is a case in point ― even though everybody knew that at that moment the government did not actually have the confidence of a majority of MPs, it is not enough for everybody to know. There has to be a Parliamentary vote to confirm what “everybody knows.” Similarly, it has always been said, after an election, the incumbent government is entitled to “meet the House” of Commons and test its confidence. Only if it does not obtain the confidence of the House does convention force it to resign.

Thus, contrary to what Messrs Mulcair, Harper, and Trudeau have claimed, the government’s number of seats has nothing to do with its entitlement to remain in office ― so long as no other party has got a majority. (If one has, there is no point in an incumbent government trying to meet the House, and I think it’s fair to say that there is a convention that demands the government’s prompt resignation in that event.) Accordingly, Andrew Coyne is wondering whether the leaders “understand the basics of our system of gov[ernmen]t,” and Emmett Macfarlane is positive that they do not. Dale Smith thinks they are “totally wrong.” Others have chimed in to the same effect as well. But the better question, in my view, has been asked by John Michael McGrath: “At what point does this go from ‘wrong answer’ to ‘new unwritten convention’?”

Constitutional conventions are just like law in that they are only valid until they have been changed. Conventions are unlike (some) law in that it is often difficult to tell when they have changed. (Actually, the common law, or any law articulated by courts is sometimes like that too. It is only at a certain point in the development of a line of cases that it becomes possible to say that the law is no longer what it had been at some earlier point.) But while it is can be difficult to pinpoint the moment when a convention has changed, we do know that conventions can change, and those pertaining to government formation are no exception.

Conventions, W.S. Holdsworth wrote in “The Conventions of the 18th Century Constitution,” (1932) 17 Iowa L. Rev. 161 ensure “that the constitution works in practice in accordance with the prevailing constitutional theory of the time.” (163) As the prevailing constitutional theory changes, so do conventions. How do we know though that a convention has changed? The same way that we know that one exists in the first place ― by looking at the behaviour of political actors to determine whether, in Sir Ivor Jennings’ classic formulation (endorsed by the Supreme Court in the Patriation Reference), there are “precedents” for an alleged convention; whether “the actors in the precedents believe that they were bound by a rule”; and whether there is “a reason for the rule.” If the convention observed at point B is not the same is that which regulated the same events at some previous point A, the convention has changed.

To come back to Mr. McGrath’s question, how do we know whether the convention regulating government formation in Canada has changed? Prof. Macfarlane has suggested that we would know “[w]hen [an] incumbent wants to test confidence but a [Governor General] ignores them & appoints a new gov[ernmen]t before the House meets. Maybe.” I don’t think that’s the only possibility. We don’t need to wait for a Governor General to dismiss an incumbent government when an opposition party wins a majority of seats to know that convention requires the incumbents to resign in such circumstances. Incumbents unfailingly resign on their own in such circumstances. Similarly, we wouldn’t need the Governor General to dismiss a government that wants to appoint one formed by the party with a plurality of seats.

If the Conservatives do not win a plurality of seats on October 19, and the government resigns without trying to meet the House, despite no opposition party having won a majority, and especially if it explains its resignation by reiterating Mr. Harper’s belief that it would be improper for a party that has not won a plurality to attempt to govern, that will be a very important indication that the convention has changed. We would have a precedent, and we would have a statement from the actor in the precedent that he felt bound by a rule. Would there be a reason for the rule? Arguably, yes, though that’s a somewhat trickier question. The rule that the winner of a plurality of seats gets first crack at forming a government has simplicity to recommend it, and it appeals to our majoritarian intuitions. It is similar to the rule we use in our electoral system ― though ironically the opposition parties might be looking to change that. I’m not saying, mind you, that this rule would be a better one than the old one. Only that there would be some reasons to justify it.

Now, it has to be possible to say, as Mr. Coyne, prof. Macfarlane, and others do, that the political actors are simply mistaken as to what the applicable rule is, just as it must, I think, be possible to say that the Supreme Court has wrongly decided a case (constitutional or otherwise). Mr. Trudeau, for instance, is just wrong to claim that “that’s the way it’s always been, whoever commands the most seats gets the first shot at governing.” It hasn’t always been that way. But just as with a Supreme Court decision, a mistake, at least if it is repeated in the future, can generate a rule just as surely as a correct statement of the relevant norm. To twist Justice Jackson’s well-known statement somewhat, the Supreme Court ― and, in the case of conventions, the political leaders of the day ― may not be final because they are infallible, but their being final does give them a form of deemed infallibility.

Constitutional rules change. Neither the process of change nor its results are always pretty. That is true of formal constitutional amendments and of the decisions of the Supreme Court that have the same effect. It is also true of the change in constitutional conventions. And of course there is nothing improper with trying to resist or even to undo a change one does not like. But it is important to recognize the possibility of constitutional change, and not only to criticize those engaged in it as mistaken. The Canadian constitution might be undergoing a metamorphosis before our eyes ― whether that word makes us think of Richard Strauss or of Franz Kafka.

14 thoughts on “Constitutional Metamorphosis

  1. I’m not so certain conventions are as elastic as you suggest. To my understanding, a good deal of the “unwritten” part of the Constitution was effectively locked in by the Constitution Act, 1982, so that even some unwritten aspects, like some of the Queen’s reserve powers, while perhaps not fully enumerated in any specific law, would still require the necessary amending formula be invoked.

    What Harper, in particular, seems to be arguing, is that it would be somehow illegitimate, if his party were to receive a plurality, that the other parties gang up, withdraw confidence, and then submit themselves as to the Governor General as a government that can command the confidence of the House. The problem for Harper, of course, is that once he loses confidence, he loses all ability to instruct the Governor General on the next course of action, so this is little more than a repetition of the same line taken in 2008 during the prorogation crisis (which I don’t consider a crisis at all, a PM has every right until he has lost the confidence of Parliament to advise the Governor General or the Royal Prerogatives like prorogation).

    At the end of the day, perhaps it is possible that a convention could be changed, given enough applications of an opposing strategy. But I think that the weight of constitutional history suggests that it can’t simply be changed one day based upon one electoral cycle’s musings.

  2. Absolutely bang on — nothing is more infuriating than having our politicians mouth off about the “long established principles of the Westminster parliamentary system” and then get it wrong. Nobody seems to have noticed than in the last-but-one UK election, the one resulting in the coalition, the newspapers did not trumpet “TORIES WIN” but rather “HUNG PARLIAMENT” and accurately painted Nick Clegg, as he bounced between meetings with Cameron and Brown, as having the capacity to choose who the next Prime Minister would be. That is the real “long established principles of the Westminster parliamentary system” in action. Don’t know how we got shunted down this strange side road.

    On a second point: Harper presented the post-election process as routinely and necessarily involving the Governor General choosing a Prime Minister — this is wrong as well, because Governor Generals only appoint Prime Ministers when there is a vacancy, and an election in and of itself cannot create such a vacancy. The Prime Minister and government who called the election remain in power, remain the government, through the election campaign and right up until the moment until they resign. (Or are dismissed, but let’s not go down that low-odds side road.) When the incumbent government is returned, there is no need for the Gov-Gen to summon the Prime Minister to reappoint him, because appointment is for an indefinite period which is not strictly tied to elections. At least: this was the long established principle of the Westminster parliamentary system; I guess it is up for grabs these days as well. (But I noted that although Harper was willing to say “I would not serve as Prime Minister” he was patently NOT willing to echo Mansbridge’s use of the word “resign” — but if he doesn’t resign, then there cannot be a new Prime Minister appointed. Should we be paranoid enough to read something into this? Or just accept that this is another genuine but mistaken belief in how the system works?)

    Actually, this new convention has been emerging for some time — when Trudeau pere came up with it, there was a flurry of public outcry but back then, people actually listened to the experts and quieted down. I blame the media for the confusion — I am so tired of having the national news tell me that any one of the three major party leaders could be “elected Prime Minister”. I’m losing a whole bunch of my long-standing true-false questions for midterm exams in Canadian Government.

  3. I also think this is an excellent post.

    I should say I agree that the party leaders all misunderstand the ‘conventional wisdom’. Nonetheless, as I mentioned on Twitter there is a potential reason for the nascent convention: the centralization of power in the Prime Minister’s Office. It is at least plausible to see elections as mini-referendums on party leaders. Who do we want to have in the PMO to exercise all that power for the next four years? If the PM is now a dominant figure rather than a chairman of the cabinet, perhaps only the leader with a majority of the popular vote has the necessary legitimacy to occupy the PMO.

    I am aware that this upsets countless settled understandings about responsible government — and I don’t seek to defend it! — but responsible government has always been a flexible principle responsive to political mores.

    Prof McCormick will doubtless be tickled to know that the ‘correct’ answer to this question in the booklet provided to prospective new Canadians (such as myself) is that the party with the most seats gets to form the government. But given that the citizenship exam is a multiple-choice test, it might be more accurate to say it is the ‘least wrong’ answer, at least for now…

  4. Thank you gentlemen! Some thoughts:

    Aaron: While I think that the Senate Reference suggests that some conventions are part of the entrenched constitutional architecture, it’s not clear to me that all are. Indeed, there is something odd about the suggestion that conventions, which emerge precisely to bridge the gap between the unchanging law and the changing “political theory” can be fixed and set in stone.

    As for whether Mr. Harper is trying to wrongly manipulate our understandings of the applicable rules, we need to distinguish two questions. One is that which I discuss above: who gets *first shot* at forming a government. The other is whether it’s legitimate for the other parties to deny confidence to that which gets first shot, and further whether it’s legitimate for the GG to invite (one of) them to form a government in the event of a vote of non-confidence, or whether an election must ensue. Mr. Harper might be attempting to manipulate people’s thinking on the second question to his putative advantage, but as for the first one, it seems to me that there is something more significant going on.

    Peter: You are right, and it’s very true that the media are not helping matters. Unfortunately, that’s where most people get their understanding of how the constitution works, and then it becomes difficult for the political actors, even if they were inclined to stick to the old rules, to do so.

    Paul: Just to record what I also said on Twitter, you are right to bring up the increasing centrality of the leaders to our politics as at least a part of the “reason” for the emerging rule. Indeed, not only is the PM the dominant figure in government but party leaders are also the dominant figures of election campaigns, in a way that hasn’t always been true ― I talk about this more in my McGill Law Journal paper on “third party” participation in election campaigns (and briefly here: https://doubleaspectblog.wordpress.com/2015/05/05/the-partys-over/). So our elections are increasingly perceived as being in effect presidential. And so, just as with riding-level elections, there is a belief that whoever gets the plurality of votes ― or seats in Parliament ― has won it. That’s wrong as a matter of Westminster orthodoxy, but again, it might be difficult for politicians to buck the prevailing “constitutional theory” even if they wanted to.

  5. I’m thinking of very historic elections, particularly in the UK. There certainly was a notion of “Pitt’s men” or the “Disraeli camp”, so I think the Westminster tradition does have a long history of political leaders being definers of their parties. Whether that element is stronger now than then I cannot say. When I’m reading about, say, the fallout of the American War of Independence, you don’t hear about the fall of the Whig ministry, it was Lord North’s Ministry.

    That being said, the tendency in the past was to talk about a government and it’s senior ministers. So, in the UK, you don’t just talk about the Cameron government. It still very much is the Tory government; and while David Cameron gets most of the press, senior ministers like Theresa May and George Osborne are closely associated with the government. In Canada it has become the case that leaders are more heavily promoted than parties, although I wonder if Stephen Harper will end up like George W. Bush was in the final days of the 2008 US elections, a sort of persona non grata because Tory candidates view him as the chief reason their numbers are down.

  6. A further thought — perhaps we should not just be treating this as a misunderstanding (slightly annoying to us academics) of the Westminster tradition on the part of the Prime Minister, that the other party leaders either spontaneously share or at least do not find it tactically useful to challenge. But turn these comments around, and they have quite a different meaning — Harper is saying that if he has any kind of a plurality in the House of Commons, even a single seat more than one or both of his rivals, then he has won the election and has a right to form the government; and we may get another round of “coalition of losers” arguments and prorogations perhaps an early election if the opposition parties have the temerity to undertake to oust him in a vote of confidence. Better yet, he has actually suckered both of his major opponents into signing on to this new doctrine, not realizing how it could come back to bite them. We should not too quickly treat this as something gracious or concessionary; it could cut quite the other direction, with rather more and sharper teeth than the commentary so far is assuming. It is by no means impossible for the Conservatives to wind up with the plurality of seats even if (as may or may not be the case) they place second or third in the popular vote. I am assuming that Harper has the tactical luxury of being confident that he is the one of the three party leaders who has no realistic prospect of forming a coalition or even a solid lasting agreement with either of the other parties. Rather than preparing to go quietly into that dark night, he may actually be preparing the way for an audacious way to hang on to power even if (as seems highly likely) he has no prospect of keeping his majority; this revised version of “the Westminster tradition” therefore gives him two chances (majority, and plurality) of “winning” — and last decade he demonstrated himself to be the most adroit manager of all time of a fragile minority government situation. Paranoia, or precognition? Time will tell.

    • There’s more than one kind of coalition. The Liberals have rejected a formal coalition, such as the 2005 and 2008 coalitions were, but that doesn’t mean a supply and confidence agreement, either a formal one or a “bill by bill” agreement where the “junior” party agrees not to vote down the government, and the “senior” governing party agrees to be cautious about what sorts of supply bills and other confidence motions appear before the house.

      Harper can make any grand statement he wants about the legitimacy of a post-loss of confidence government, but if he keeps his word, wins a minority, recalls Parliament and the opposition promptly evict the Tories, Harper loses all power to advise the Governor General, and the Governor General in turn is going to be look at Constitutional precedent in Canada and throughout the Commonwealth Realms to decide how to resolve the matter. He will look at the statements of his predecessors, notably Adrienne Clarkson, who made it clear that she would not have subjected the electorate to back to back elections.

      I understand Leonid’s point that the parties may be trying to alter what they perceive as malleable aspects of the Westminster conventions, but really, as no one has tested it, it’s little more than declarations made by parties vying for power in one of the tightest races in Canadian history. The Governor General is not likely to be guided by bold statements made by competing party leaders on the campaign trail.

  7. I think this is the best discussion anything I’ve written has generated. Thank you!

    Aaron: Sure, leaders always mattered; exceptional leaders more than others. Though mind you, going back to the 18th century, when parties were less rigid than now or even in the 19th, and individual MPs had much independence, might not make for a very fair comparison. That said, leaders matter more than they used to, even the rather unexceptional ones we have now. In my paper I rely on the work of Bernard Manin, who defines the period of “party democracy” as roughly 1870-1970; and argues that after 1970, politics shifted towards the contemporary, more leader-oriented, “audience democracy.” I think (and I explain in some detail) that Canadian politics conforms to his model quite well. And as you say, we may have gone further than the UK down this road.

    Peter: Hugo Cyr has said the same thing on Twitter. But I wonder whether Mulcair and Trudeau are really so naïve as to just fall for that. Again, I think that Paul and I have suggested some serious reasons for why there might be something more going on. Also, note that Trudeau at least is saying that the plurality winner gets the “first shot at forming the government.” Not that they “get to form the government.” Mulcair’s remarks are more ambiguous on this point. You could be right of course. Perhaps we will find out on Oct. 20.

  8. Excellent post, Leonid. I think your point that Canadian elections are taking a more presidential tone has a great deal of merit. After all, while we may inherit our Parliamentary traditions from the Westminster system, it’s hard to escape American influence, particularly given the proximity of their election cycle to ours. Given the centralization of power in the PMO over the last few decades, the allotment of seats in Parliament can be viewed as a “quasi electoral college”. Just as the strength of a President’s mandate is captured by the number of states (and electoral votes) he or she carries, the party leader with the most seats demonstrates the strongest mandate from the public to govern.

    As for the convention that the incumbent be allowed the first opportunity at forming government, simply because it isn’t followed this election doesn’t necessarily mean that it won’t be invoked in the future. This is not uncommon in Canadian constitutional law. For example, there has been a long established convention that Supreme Court justices from the West must rotate through the provinces. While convention would have dictated that the Prime Minister appoint a jurist from Saskatchewan this year, Mr. Harper appointed Justice Brown from Alberta. There was nothing precluding him from doing this – Justice Stevenson and Justice Major, both from Alberta, had held the office consecutively before Justice Rothstein. In other words, the “established” convention served merely as a guideline – deviating from it was not a nefarious act, and future Prime Ministers are free to rely on it as a starting point to guide their appointment decisions.

    To quote the esteemed constitutional scholar Captain Barbossa (see also Sparrow, Jack), “the code is more what you’d call “guidelines” than actual rules.” Now and in the future, the formation of government largely depends on which rulebook the leaders choose to use.

    • It does come to my mind that while the Westminster rules surrounding who gets to form a government are rarely invoked because of plurality voting system, they may become very important should we move to a voting system that makes minorities much more common, if not the norm. That may be a reason the Opposition leaders may be trying to redefine the rule ahead of the change. In particular, if we move to a MMR system, as the NDP are advocating, that will almost certainly guarantee no future government will gain a majority, meaning old and seldom invoked rules about who gets to govern become very important, and if you’re seeking to modify or reinterpret those rules, now is the time to do it.

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