In Defence of Single-Member Plurality


Adopting a ranked ballot would in effect convert our single-member plurality into a system of single-member majority, like the electoral system for Australia’s House of Representatives, since it would still rely on single-member geographic constituencies and not party lists. Such a reform would not alter our system as radically as would a proportional voting system, but it could very produce mediocrity and would probably most benefit the Liberals, as a second-choice party, in Canada’s two-party-plus system. However, adopting a proportional system like mixed-member proportional, as the New Democrats would wish, would prove a radical break with our tradition.

Our system of government and British tradition flow not from a rationalist, technocratic Continental project, but instead of the accumulated practice and wisdom of centuries of evolution through common sense and trial and error.[1] Proportional representation is foreign to the British tradition, notwithstanding New Zealand’s reform of 1996; instead, it sprung from a Continental European construction in which effective parliamentary government and Responsible Government were imposed by rigidly codified constitutions and not until after various regional, sectarian, and linguistic groups had enough leverage to demand a system that would not weaken them as individual entities and force them to combine into effective governing parties.[2] Proportional representation leads to hung parliaments, which in turn lead to coalition governments and the inter-elite accommodation inherent to forming coalition governments, which, in effect, makes elections less significant than they might appear.

The Queen’s business must always carry on, which means that the ministry of the day must always be able to pass supply through the House of Commons. If the ministry cannot control the agenda of the Commons and obtain supplies for the Crown, then either there must be a new ministry (mid-parliamentary change of government) or a new parliament (fresh elections). Parties evolved in our system so that the House of Commons could support a government. The proponents of proportional representation have got it all backwards: parliament does not exist in order to serve parties; instead, it exists in order to support a government that can carry out the Queen’s business.[3] Unlike the horseshoe-shaped consensus parliaments of Continental European, which reformers here exalt, our House of Commons consists of two sides; to the Speaker’s right sits the Ministry and government backbenchers, and to his left sits the opposition, the largest party of which acts as the government-in-waiting. As Peter Hitchens argues:

The electoral system is not there for the good of the parties, but for the good of the country.It has two irreplaceable and unique characteristics. The first is that it provides strong government, constantly challenged by a vigilant and ambitious opposition.The next is that it allows the people, when enraged or otherwise disappointed by a bad government, to turn it out completely.[4]

In short, single-member plurality is for the good of the country; the  in contrast, proportional systems serve political parties themselves, particularly small irrelevant parties like the Greens which exist only in the hope of achieving what Pepall calls a grossly disproportionate “imbalance of power” in hung parliaments by suspending itself like the Sword of Damocles over the government’s head and extorting absurd demands from it in order to cater to the narrowest slices of the electorate. Under mixed-member proportional, we could no longer say that we elect members of parliament alone; instead, with one ballot, we would elect some members, and on another we would elect parties instead, but not the lists that determine the order in which parties fill up their quotas or the proportional seats distributed in order to match their share of seats with their seat of the popular vote. Proportional representation — whether pure or mixed-member proportional — springs from the false and presumed premise that the House of Commons exists to support parties, when in fact parties evolved in order to support ministries that could successfully carry out the Queen’s business and sustain their parliamentary majorities.  Political parties aggregate interests and exist in order to form government, and being in government is about taking responsibility for acts of the Crown and making decisions. Governing is about making decisions to the exclusive of all others; it is not about making multiple decisions in proportion to the share of votes that different parties and their platforms won in the previous general election. Ultimately, this is why the people as a whole — the constituent body of the realm — will invariably be unhappy or dissatisfied with what the government of the day does. As Pepall says, “to govern is to choose.”[5]

We cannot allow the proponents of mixed-member proportional to portray theirs as the only “legitimate” or morally righteous option, as if converting to this proportional system were a sacred and undeniable truth. As with everything else in politics, they have calculated their reform for political gain, which is why small parties that would otherwise have no chance in forming government most strongly support this system and why Elizabeth May has emerged as its most fervent advocate in Canada.

These constitutional vandals would presume to destroy the organic architecture of our system by importing this rationalist, mechanical Continental European monstrosity. It is little wonder, therefore, that those who support mixed-member proportional are also more likely to support codifying constitutional conventions and imposing true fixed-term parliaments, constructive non-confidence, confirmation voting, and the inter-elite accommodation of coalition government formation and ever-shifting coalition cabinets — the complete dissonant score of Continental European parliamentarism, exemplified by Belgium.

[1] John Pepall, Against Reform (Toronto: University of Toronto, 2010), 4.
[2] John Pepall, Against Reform (Toronto: University of Toronto, 2010), 34.
[3] John Pepall, Against Reform (Toronto: University of Toronto, 2010), 34.
[4] Peter Hitchens, “On ‘Legitimacy’ and Saving FPTP,” The Mail on Sunday, 7 May 2015.
[5] John Pepall, Against Reform (Toronto: University of Toronto Press, 2010), 30.

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Posted in Electoral Reform, Reform | 1 Comment

The Trudeau II Government’s Electoral Teleology


The Liberal Platform and the Trudeau II Government’s Policy Proposal

During the last general election, the Liberals pledged to study changing the electoral system from single-member plurality (also known pejoratively by its opponents as “first past the post”) to some other system – whether that be mixed-member proportional, some form of single-member majority with preferential balloting, single transferable vote, or whatever. The Liberal Party’s website proclaims that the general federal election of 2015 “will be the last […] conducted under the first-past-the-post voting system.” The Liberals also pledged to do the following:

We will convene an all-party Parliamentary committee to review a wide variety of reforms, such as ranked ballots, proportional representation, mandatory voting, and online voting. This committee will deliver its recommendations to Parliament. Within 18 months of forming government, we will introduce legislation to enact electoral reform.

This wonderfully ambiguous proposition leaves various questions unanswered. What does “proportional representation” mean in this context? Pure proportional representation as in Israel? Mixed-member proportional in like New Zealand? It doesn’t say, but I would presume the latter. What is the point of striking a separate all-party committee given that the Conservative Party has indicated its opposition to changing the electoral system in any way? Recently, the NDP’s Critic for Democratic Reform, Nathan Cullen, submitted a request to the Minister of Democratic Institutions, Maryam Monsef, that the Liberals not command a majority of the all-party committee. That way, they could not impose their own recommendation over the objections of the other parties. Additionally, once the all-party committee delivers its recommendations to parliament, will the Trudeau II Government introduce legislation in order to implement what the committee recommends? Or would it reserve the right to break with the committee’s recommendations and implement its own plan instead? And if so, what is the point of striking the committee in the first place? Why not simply table a bill before the Commons and allow the regular House of Commons Standing Committee on Procedure and House Affairs to study it? Perhaps Trudeau II’s cultural appropriation of Sir Wilfrid Laurier’s “Sunny Ways” render clarity on all these questions unnecessary. (For instance, how many politicos — let alone Canadians writ large — know that Laurier derived his “sunny ways” from Aesop’s Fable of the Sun and the North Wind, or that he did so in light of how he contrasted the post-Macdonald Conservatives’ approach to the Manitoba Catholic Schools Question to his own proposed solution? Trudeau II’s use of the phrase “sunny ways” therefore has very little to do with Laurier’s beyond any critique of the previous Conservative government).

Prime Minister Trudeau II’s mandate letter to Minister Monsef says much the same as the Liberal platform; it asks that she “bring forward a proposal to establish a special parliamentary committee to consult on electoral reform, including preferential ballots, proportional representation, mandatory voting and online voting.”

Thus far, Monsef hasn’t given much indication of which system she would prefer, though Trudeau II has signalled his preference for a ranked ballot. Overall, the Liberals also haven’t yet ruled out holding a referendum on changing the electoral system either, but they seem to be leaning against it. In principle, Canadian voters should be able to vote on whether they want to change the electoral system, especially given that the voters of British Columbia (in 2005 and 2009), Ontario (in 2007), and Prince Edward Island (in 2005) had the opportunity to do so; ultimately, they all decided to stay with single-member plurality. Former NDP MP Pat Martin even tabled a series of private member’s bills in the 38th, 39th, and 40th Parliaments that proposed amending the Referendum Act in order to encourage any government of the day to put “any question relating to the Constitution of Canada or the reform of the electoral system of Canada” to a referendum.

On 1 February 2016, Conservative MP Scott Reid noted that citizens and residents of several jurisdictions over the last 20 years — New Zealand, the United Kingdom, British Columbia, Ontario, and Prince Edward Island — had voted in referendums on whether to change the electoral system by which they elect members to their respective parliaments and legislatures. He asked Minister Monsef whether the Trudeau II Government would do likewise. Monsef responded with a curious mixture of teleological pabulum and ambiguous obfuscation.

Last week, we acknowledged that it was not until 100 years ago that some women in Manitoba got the right to vote, a right that would only be extended to indigenous peoples in 1960. It is in that spirit of evolution and inclusion that we will undertake a process to consult with Canadians in a meaningful and thorough discussion about ways to modernize our democratic institutions.

This statement represents Monsef’s attempt to situate the Trudeau II Government’s preference to change the electoral system without holding a referendum into the wider teleology of the Whig Progress Narrative, which holds  that history moves inexorably toward liberal-democratic perfection and has been central to the ideology of the Progressive movement since the early 20th century. This teleology starts with broadening the franchise in the 19th century to non-propertied classes, then to women in the early 20th century, and to indigenous peoples in 1960; crucially, from Monsef’s point of view, all of these expansions of the franchise were accomplished by statute alone. Monsef thereby implies that holding a referendum would detract from this inevitable “evolution and inclusion” of the franchise and the electoral system through which voters exercise that franchise. This in turn would contradict the teleology and thus amount to an illegitimate rearguard action.

Monsef added in a recent interview: “We have an opportunity, with this government as we approach the 150th anniversary, to strengthen and modernize our democratic institutions and bring them into the 21st century and that is the mandate that we got from Canadians.”

It is interesting to say the least that a Minister, ultimately elected as a Member of Parliament under the banner of a party that received only 39.47% of the popular vote — yet won a parliamentary majority in the general federal election of 19 October 2015 — now boasts of having obtained a mandate from Canadians as a whole to abolish the current electoral system and impose an alternative unilaterally. Again, Monsef relies on this trite teleological trope: single-member plurality must necessarily give way to “modernizing our democratic institutions,” and it therefore seems to the Liberals that anyone who disagrees with this proposition is out to subvert democracy. It also appears from Monsef’s comments that the Trudeau II Government wants to impose these changes by the 150th anniversary of Confederation and of the Dominion of Canada in 2017.

How to Counter the Liberals’ False Electoral Teleology

The New Democrats have tried to make the special all-party something other than a Liberal fait accompli. But if the Conservatives want to mount a successful campaign against this Liberal proposal, but they must understand that the Liberals have constructed this bizarre teleological view of electoral reform and counter it effectively when they argue in favour of putting electoral reform to a referendum and in defending the virtues of single-member plurality.

First, the Conservatives must point out that they are responsible for the main milestones in Monsef’s statement of the electoral teleology so that the Liberals cannot appropriate this legacy as their own. In fact, it was the Conservative government of Sir Robert Borden in 1918 that tabled the Act to confer the Electoral Franchise upon Women in 1918 and the Conservative government of John Diefenbaker that tabled the bill extending the franchise to all indigenous peoples.

Second, the Conservatives must expose the red herring of the Liberals’ Electoral Teleology: universal adult suffrage and the right to vote itself, under section 3 of the Constitution Act, 1982, do not equate to the electoral system by which Canadian voters elect members of parliament. These are two separate issues, but the Liberals’ Electoral Teleology relies on the false premise of combining the two together in order to delegitimate single-member plurality, even going as far to imply that it is somehow unconstitutional and an intolerable form of bigotry designed to exclude marginalized groups. You do not “waste” your vote simply because you happen to cast your ballot for a party that does not form government. To suggest otherwise would be to make the absurd assertion that our democratic rights include the right to elect members who then in turn must become cabinet ministers in government.

Third, the Conservatives need to defend single-member plurality, which its critics pejoratively dismiss as “first past the post.” Peter Hitchens and John Pepall in his book Against Reform have mounted excellent defences of single-member plurality. You can read my defence on single-member plurality, too.

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Posted in Electoral Reform, Redistribution in the Commons, Reform | Leave a comment

Catching a Glimpse of a Long Forgotten Country: The Great Fire of 1916


The Old Center Block

The Old Center Block

On 3 February 1916, one hundred years ago today, a raging inferno consumed the original Center Block and left it a smoldering ruin and a gutted husk of its former glory. Seven perished in the deadly blaze. Only the Library of Parliament and part of the hallway leading up to it survived thanks to the firefighters who doused the fire and the librarians who shut the steel door separating the library from the rest of the original Center Block.

Charles Bishop of the Ottawa Citizen wrote this contemporary account:

The grand old tower put up a magnificent fight for survival. Standing while the support seemed to have burned away, it sent a solid pillow of twisting, billowing gold up into the winter night. Finally, it came down, crashing into the concourse in front and with it, carrying the huge, old clock which had stayed illuminated and kept on striking to the last.

This photo album, “The Fire of 1916,” comes from a Facebook group called “Parliament of Canada — Youth Connection.” It chronicles the history of the Old Center Block from the 1880s until it met its fiery demise in 1916; it also shows the efforts to demolish the burned out husk of the Old Center Block and build the current structure in its place. In 1919, the Prince of Wales (who later become Edward VIII and after his abdication, the Duke of Windsor), laid the cornerstone of what would become the Peace Tower. Finally, on Dominion Day — 1 July 1927 — eleven years after the fire, Canadians celebrated the 60th anniversary of Confederation and the Dominion of Canada by opening the Peace Tower. But this Facebook group betrays the ignorance of those who created it and probably of most of those who read it by relying on this caption to describe what I just recounted above: “July 1, 1927: Canada turns 60 and the Peace Tower is inaugurated.” It omits entirely that at the time, we referred to July 1st as Dominion Day (and therefore by implication imparts to the reader that we always referred to July 1st by the banal “Canada Day”) and glosses over that it was not “Canada” per se that turned 60 in 1927, but rather the Dominion of Canada under the British North America Act, 1867, that became a sexagenarian. The second King ministry chose to celebrate the Dominion’s diamond jubilee because its golden jubilee fell during the Great War, only one year after the fire that destroyed the Old Center Block.

The Library of Parliament stands as the last lonely redoubt of the Old Center Block.

The Library of Parliament stands as the last lonely redoubt of the Old Center Block.

So I must ask, to what past are we, particularly my peers, “connected”? I can’t help but conclude that my generation has been robbed of this country’s history and brought up with a profound historical amnesia, after a cultural revolution so insidious in its gradualness yet thorough in its destruction of the past. These 41 photos depict a long forgotten world in which Canadians proudly adorned their official buildings with Union Flags and Red Ensigns and unarmed Peelite police officers dressed in the old British uniform stood vigil at Sir Wilfrid Laurier’s final repose.

I felt strangely wistful looking through these photographs of the Old Center Block and the aftermath of its destruction. They tell the story of a country ravaged by war and of the immense sacrifice in blood and treasury that the Dominion of Canada contributed for King & Country and the British Empire. (I think that the British Empire should have remained neutral in that Continental war in 1914, but that’s another issue). But the wistfulness creeps in because what we fought for no longer exists. The British Empire is long gone, and successive governments since Pearson’s have severed and suffocated our organic connection to the past and imposed an artificial monstrosity in its place. Looking at these fleeting glimpses into a blurred past is like gazing into an alternate universe. I feel like Boromir staring at the shards of Isildur’s sword; we’ve inherited nothing more than faded memories and broken heirlooms.

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Posted in Parliament, Traditions and History | Leave a comment

Thoughts on How We Translate the Caretaker Convention


This follows up on and adds to my earlier entry describing my talk on government formation to Professor Philippe Lagassé’s seminar on parliamentarism, which you can read here.

When Phil and I were discussing the Privy Council Office’s Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff and Public Servants During An Election in his French-language seminar last Monday, we just stumbled upon an interesting quirk and question pertaining to this document in particular and the caretaker convention itself more generally: how should “caretaker convention” be translated into French? While the title itself of this document doesn’t mention the caretaker convention, PCO’s website does. At this stage, PCO has officially abandoned the phrase contained in The Manual of Official Procedure of the Government of Canada, which referred to this concept as “the principle of restraint” and has endorsed “caretaker convention” in English, so the French-language translation now reflects this.

But it doesn’t. In the 2015 edition of this document, PCO calls it “La Convention de transition,” which I highlighted to Phil in the discussion that I found imprecise and inadequate. (Sidenote, talking in French to someone with whom you’ve only ever conversed in English before feels very strange!) We certainly don’t call it the “Transition Convention” in English. I referred to this translation as imprecise because not all elections result in a transition of power from one ministry to another — because sometimes the incumbent government retains its parliamentary plurality or majority and can continue to govern thereafter. The elections of 2008 and 2011 did not produce a transition of power, and the Harper government, the 28th ministry, survived both. The main thrust behind the caretaker convention is uncertainty: that the incumbent government exercises restraint precisely because no one knows whether it will remain in office after the election. By referring to the caretaker convention as “La Convention de transition” in French, it’s almost as if PCO foretold or created a self-fulfilling prophecy on the Harper government’s defeat!

Phil and I agreed that this “convention de transition” is wholly inadequate. So I sought inspiration from the country most adept in implementing the caretaker convention — better yet, it also happens to be a French-speaking country: Belgium. The website of the Government of Belgium even includes a section devoted to the formation of governments and explains the entire process. In Belgium, a caretaker government is a “gouvernement d’affaires courantes” — a “routine proceedings government.” As Phil and I discovered over Twitter, this might not be the best name in the Canadian context because the National Assembly of Quebec defines “affaires courantes” as “routine proceedings” in terms of the conduct of parliamentary business — and, by definition, there are no routine proceedings during a caretaker period because the parliament is dissolved. Phil suggested “la convention de garde” as a better translation, since “garde” has the closest denotation and connotation in French to “caretaker” in English.

However, I just discovered in the course of writing this blog entry that I do in fact possess a French-language copy of PCO’s Guidelines from 2008. (Admittedly, yes, I should have checked for this document before presenting, but I do have a day job and an imperfect memory!). And in 2008, PCO had translated “Caretaker Convention” into French as “La Convention de retenue” — which translates most directly as “Restraint Convention.” This name comes much closer to capturing the spirit and underlying meaning of “caretaker convention” and also offers an excellent and faithful translation of what The Manual of Official Procedure of the Government of Canada of 1968 calls “The Principle of Restraint.” In conclusion, “la convention de retenue” is a much better and precise French translation of “caretaker convention,” and PCO should have retained its own original translation from the 2008 edition of the Guidelines when it drafted and published online its 2015 edition of the same.

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Posted in Caretaker Convention, Constitution (Conventional) | 1 Comment

Discussion on Government Formation at the University of Ottawa


Overall Impressions on the Discussion

I thank my friend Phil Lagassé for having invited me to speak on government formation and the caretaker convention to his seminar on parliamentary government and parliamentary reform on 25 January 2015. I’ve uploaded my original, English-language PowerPoint here to Parliamentum. I was obliged to give most of my presentation in French, which I found difficult, though it went better than I had expected.

I was very surprised that none of the students objected to the premise of “No Discretion: On Prorogation and the Governor General,” the old article that Nick MacDonald and I wrote over five years ago which set me off on this constitutional odyssey. Resigned agreement or even a tacit endorsement of those views would have been inconceivable a few years ago. It wasn’t because they supported prime ministerial authority per se, but rather because they really didn’t want to support any reforms that would force the Governors to play a more active role. In Belgium, for instance, there are well-established conventions on the King’s role in forming governments that run afoul of the norms in Canada and the United Kingdom – though as New Zealand post-1996 shows, these conventions would necessarily change to some extent in the Realms, too, if coalition government became the norm. (Australia is a special case, because the Liberals and Nationals are two ideological compatible parties in a perpetual coalition that doesn’t require much coaxing from the Crown).

More fundamentally, I would at this stage also attribute this shift to two main factors. First, subsequent experience has validated our argument, particularly in Ontario, where initially Lieutenant Governor Onley and now Lieutenant Governor Dowdeswell have explicitly endorsed the view which we promoted: “In Canada, by convention, the Crown must accept the advice of the First Minister concerning prorogation.” (Someone once asked me if I had been consulted on or wrote this material and interpretation. I was not consulted on it and did not write it, but I do agree with it and regard it as an accurate description of the practice and procedure based on all the historical evidence). Scholars can object as strenuously and as stridently as they like, but these are the facts established by history and accepted as constitutional practice. One can make a normative critique of this system and propose reforms, but one cannot deny the facts and then pretend to be engaging in the descriptive. Second, the passage of time has borne out one of my other suspicions: most of the criticism of Harper’s early dissolution of 2008 and prorogations of 2008 and 2009 were partisan criticisms masquerading as process arguments on constitutional procedures. (There’s nothing wrong with partisan criticism of an incumbent government, but it is mendacious to disguise such criticisms as a principled constitutional argument). Now that the Conservatives must content themselves with playing the role of Her Majesty’s Loyal Opposition in this 42nd Parliament and that Justin Trudeau has succeeded Stephen Harper as Prime Minister of Canada, we can assess Harper’s executive decisions more rationally without the stream of abuse that normally accompanied such discussions even as recently as this time last year. At least one scholar accused me of being an apologist for Harper, and some provincial Conservatives in Ontario accused me of the same with respect for Premier McGuinty after his tactical prorogation in October 2012. In fact, I am not an apologist for any political party; instead, I defend the principles and practices of executive authority within Canada’s system of government – irrespective of whatever party happens to form government.

In addition, I’ve long noted that the Two Solitudes of Canada even show themselves in the scholarship on the Crown’s executive authority, particularly the Governors’ discretionary authority to reject ministerial advice, often called the “reserve power.” The well-established constitutional scholars in Quebec – such as Henri Brun, Guy Tremblay, Eugénie Brouillet, and to some extent Louis Massicotte (based on our CSPG panel last week) – oppose in principle and downplay in practice the notion that a governor could or should ever reject a first minister’s advice to dissolve parliament. One of the few French-speaking Quebec scholars who conforms more to the English-language schools of thought is Hugo Cyr. If memory serves, Cyr even referred to the aforementioned four scholars, who are all from Université Laval, as “The Laval School” at Peter Russell’s workshop on constitutional conventions on 3 February 2011 when he contrasted his own views to theirs. Some of Phil’s students identified as republican in outlook (and they also fully acknowledged the normative nature of that view in the Canadian context, which as a realist, I greatly appreciate) and therefore did not approve in principle of reforming the Canadian system along, say, the lines of Belgium where the King necessarily plays an active role in government formation.

The Principles of Government Formation in Canada

Presentation: Government Formation

 1. Responsible Government

Government formation hinges upon the executive authority of the Crown. The Queen appoints the Governor General upon the advice of the Prime Minister. The Governor and Prime Minister both derive their executive authority from the Crown. The Governor General appoints the Prime Minister based on the authority that the Letters Patent have delegated to him[1], and the Prime Minister and ministry as a whole takes responsibility for all acts of the Crown promulgated in the name of the Queen.[2]

At its core, Responsible Government is a trinity (three in one) of responsibilities: ministerial responsibility to the Crown, individual ministerial responsibility before the Commons, and collective ministerial responsibility & solidarity before the Commons.[3] Responsible Government means that “Ministers of the Crown take responsibility of all acts of the Crown”[4] and that the Governor General acts on and in accordance with ministerial advice, save for exceptional circumstances.[5] In this manner, Responsible Government therefore preserves and fully incorporates the medieval principle of Royal Infallibility and reconciles it with popular rule and universal adult suffrage. The Queen can still do no wrong because it is the ministry which takes responsibility for all acts of the Crown, for good or ill. The Governor General can only refuse to promulgate ministerial advice in exceptional circumstances because the consequence of exercising such discretionary authority is equally and proportionately exceptional: the Governor General thereby dismisses the Prime Minister and ministry which tendered the original constitutional advice and must appoint in their place a new Prime Minister and ministry which can then take responsibility for the Governor’s decision to refuse advice and force the dismissal of their predecessors.[6]

Responsible Government as a Trinity 2

Eglington referred to Responsible Government as a trinity, so I thought that I would make my down diagram representing the nature and aspects of Responsible Government based on the sorts of diagrams that illustrate the Holy Trinity and the three aspects of God in small-o orthodox Christianity

 

 

 

 

 

 

 

 

 

In addition, the first duty of the Governor General is to ensure that there is always a duly-appointed ministry in office because the Queen’s business must always carry on.[7] Put simply, there must always be and is always a ministry in office. At no point is there an “interregnum” in of the office of prime minister. In addition, the tenure, or term in office, of the prime minister determines the tenure of the ministry as a whole; the prime minister’s resignation automatically entails the resignation of the ministry as a whole.[8] For example, Stephen Harper’s term as prime minister extends from the day on which Governor General Michaelle Jean appointed him, on 6 February 2006, to the day on which he formally tendered his resignation to Governor General David Johnston on 4 November 2015.

  1. The Confidence Convention

The confidence convention therefore takes on a broader meaning than most contemporary scholars would summarize it. Most commonly, they will define the confidence convention as something to the effect, “The government must command the confidence of the House of Commons”; they might add something like, “if the government loses the confidence of the Commons, then either there would be a new government (through a mid-parliamentary transition of power) or a new parliament (through dissolution and fresh elections).” These statements are both truth – but they’re also incomplete and gloss over some crucial aspects of Responsible Government. They’re truth, but they’re not the whole truth.

The ministry must command the confidence of the Commons. Once the ministry has demonstrated that it commands the confidence of the Commons, it continues to hold that confidence until the moment that the Commons decides to withdraw it from the ministry.[9] Generally, the Address in the Reply to the Speech from the Throne acts as the first de facto confidence measure in a new session of parliament, which means that the ministry would command the confidence of the Commons if the Address in Reply passes. That said, the ministry can also judge when it has lost the confidence of the Commons, such as by deeming a bill or motion a matter of confidence and then losing a vote on it, or if it has, more generally, lost the ability to control the agenda of the Commons.[10]

But at select intervals, the ministry’s command of the confidence of the Commons is a sufficient condition and not a necessary condition. Logically, it cannot possibly be true that the ministry always commands the confidence of the Commons — because sometimes the Commons doesn’t exist (as in when Parliament is dissolved), and because sometimes the governor general promulgates the prime minister’s constitutional advice when the ministry has explicitly lost the confidence of the Commons (as with early dissolution in some minority parliaments).

First, the governor general expresses confidence in the prime minister by appointing him and granting him an official commission of authority to govern, which allows him to form a ministry. Second, the Commons either confirms that it also holds confidence in the ministry, or it expresses non-confidence in the ministry.

Most of the discussions surrounding Harper’s use of executive authority and early dissolution and prorogation between 2008 and 2010 glossed over this significant fact: if the Commons withdraws its confidence from the ministry, this does not automatically mean that the Crown also withdraws its confidence from the Ministry, which explains why the incumbent prime minister can advise — and apart from exceptional circumstances — receive, an early dissolution. If it were true that the governor general automatically withdraws his confidence from the prime minister and revokes his authority to govern as soon as the Commons withdraws its confidence from the ministry, then there would be no such thing as early dissolution, and there would instead only be mid-parliamentary transitions of power.

However, if the governor general refused to promulgate the prime minister’s advice to dissolve parliament, then would in so doing withdraw his confidence from the prime minister and revoke his authority to govern. At that stage, the governor general would then have to appoint a new prime minister and ministry who could take responsibility for these acts of the Crown (refusing the dissolution and dismissing the previous ministry), because a ministry can only take responsibility for advice that it has offered, not for the contrary advice that it did not offer.

  1. Constitutional Entrenchment of Executive Authority

Prorogation and dissolution are constitutionally entrenched executive authorities under sections 38 and 50, respectively, of the Constitution Act, 1867, which means that only a constitutional amendment pursuant to section 41(a) of the Constitution Act, 1982 could abolish this executive authority and transfer it to a constitutional provision. Prime Minister Trudeau outlined in Daniel Leblanc’s mandate letter that he should “change the House of Commons Standing Orders to end the improper use of omnibus bills and prorogation.” While the House of Commons could easily amend its Standing Orders in order to better regulate omnibus bus, the Standing Orders could not restrict the executive authority over prorogation because they would then be ultra vires of the Constitution Acts. (I’ve covered this issue in a previous entry, too). The House of Commons has the authority to manage its internal affairs, but its Standing Orders cannot supersede the constitution; more fundamentally, prorogation and dissolution are executive authorities, not parliamentary ones. Simply because they affect the conduct of parliament does not make them legislative authorities.

Parliament therefore cannot limit the prime minister’s discretion to advise and take responsibility for prorogation or dissolution without also necessarily limiting how the Governor promulgates that advice — because Responsible Government means that ministers take responsibility for all acts of the Crown, not that the Governor General practises a form of personal rule that would please a Stuart King. The Governor and First Minister form a chain of authority and ultimately both derive their commissions from the Queen.[11]

The law cannot drive a wedge between the Governor General and the Prime Minister. The law cannot limit the authority of the First Minister without also necessarily limiting the authority of the Governor, because the First Minister derives his authority as First Minister, i.e., role of the Crown’s primary constitutional adviser, by virtue of the Governor’s commission of appointment and confidence in him.

  1. The Steps Involved in a Transition of Power from One Ministry to Another

In Canada, transitions of power between ministries normally last two to three weeks and follow this general procedure. I shall remain eternally grateful to Lieutenant Governor Onley of Ontario for having published all of this information on the Lieutenant Governor’s website for public consumption.

  1. Incumbent first minister informs the governor of his intention to resign and becomes the “outgoing” first minister
  2. The party leader poised to become the next first minister then becomes the “incoming” first minister
  3. A few days later, the governor summons the incoming first minister, who then becomes the first minister-designate
  4. The outgoing first minister and first minister-designate agree to the exact timeline for the transition.
  5. 2 to 3 weeks later, the governor formally appoints the first minister-designate to office as first minister and swears in the rest of the cabinet

At the time, Lieutenant Governor Onley made clear that the intra-party, mid-parliamentary transition between the McGuinty and Wynne ministries occurred along the following timeline.

  1. 12 October 2012: Premier McGuinty announced his intention to resign. The Liberal Party of Ontario then held an election amongst its members to elect a new party leader.
  2. 26 January 2013: The Liberal Party elected Kathleen Wynne as its new leader.
  3. 31 January 2013: Lieutenant Governor Onley recognized Wynne as Premier-designate. McGuinty & Wynne then coordinated transition.
  4. 11 February 2013: McGuinty resigned, and Onley appointed Wynne as Premier.

If we apply those procedures to the most recent federal general election of 2015, we would derive the following steps. This transition proved straightforward because the voters gave the Liberals a parliamentary majority, and because it occurred after an election when parliament was dissolved rather than mid-parliament, as the aforesaid example in Ontario did.

  1. 19 October 2015: Canadians elected members for the 42nd Parliament. The Liberals won a parliamentary majority. Harper then became the outgoing prime minister & Trudeau became  the incoming prime minister.
  2. 20 October 2015: Harper informed His Excellency that he intended to resign. Governor General Johnston summon Justin Trudeau later that day and made him Prime Minister-designate.
  3. 4 November 2015: Harper resigned as prime minister, and the 28th Ministry went along with him. Governor General Johnston then appointed Justin Trudeau as Prime Minister and swore in the Cabinet for the 29th Ministry.
  1. The Caretaker Convention

The Government of Canada’s official position is set out in the Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff and Public Servants During an Election.

“[D]uring an election, a government should restrict itself – in matters of policy, expenditure and appointments – to activity that is: a) routine, or b) non-controversial, or c) urgent and in the public interest, or d) reversible by a new government without undue cost or disruption, or e) agreed to by the Opposition (in those cases where consultation is appropriate).”

The Manual of Official Procedure of the Government of Canada of 1968 refers to this concept as “the principle of restraint.”

1.[…] The extent of these restraints varies according to the situation and to the disposition of the Government to recognize them.
2. The possibility of restraint only arises if the continuation of confidence in the Government is called into question. A defeat in the House preceding dissolution or a defeat at the polls would be the usual causes of restraint.
3. The restraint has been recognized as applying to important policy decisions and appointments of permanence and importance. Urgent and routine matters necessary for the conduct of government are not affected.[12]

  1. The Prorogation-Coalition Controversy of 2008 As Case Study

As Nick MacDonald and I pointed out in our little article from 2011, a first minister’s advice to prorogue the assembly has never been refused since Responsible Government emerged in the 1840s.

Even if a governor tried to make a stand and break centuries of precedent, he would, in refusing a first minister’s advice to prorogue, force his resignation and then have to appoint a new first minister who could take responsibility for the advice not to prorogue. Therefore, if Governor General Jean had refused Prime Minister Harper’s advice to prorogue the 1st session of the 40th Parliament on 4 December 2008, she would have, in so doing, forced Harper to resign and then had to appoint Stephane Dion as prime minister.

Similar Posts:

[1] Christopher McCreery, “Myth and Misunderstanding: The Origins and Meaning of the Letters Patent Constituting the Office of the Governor General 1947,” Chapter 3 in The Evolving Canadian Crown, edited by Jennifer Smith and D. Michael Jackson, 31-56 (Montreal-Kingston: McGill-Queen’s University Press, 2011), 32. As McCreery shows, the Queen of the Canada – not the Governor General – remains the source of the constitutional powers and authorities by virtue of section 9 of the Constitution Act, 1867. This is why Letters Patent have delegated, not transferred, authority from the Queen, who personifies the Crown, to the Governor General, who represents the Queen.
[2] Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102.
[3] Robert Macgregor Dawson. “The Constitutional Question.” Dalhousie Review VI, no. 3 (October 1926): 332-337; Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 16-17.
[4] Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102.
[5] R. Macgregor Dawson, The Government of Canada. 5th ed. (1970), revised by Norman Ward (Toronto: University of Toronto Press, 1947): 175.
[6] Sir John George Bourinot, Parliamentary Procedure and Practice. 1st ed. (Montreal: Dawson Brothers Publishing, 1884): 58.
[7] Canada. Department of Canadian Heritage. Ceremonial and Protocol Handbook. (Ottawa: Government of Canada, c. 1998): G.4-2; Henri Brun, Guy Tremblay, and Eugénie Brouillet, Droit constitutionnel. 5th Ed. (Montreal : Éditions Yvon Blais, 2008): 371.
[8] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa, Government of Canada, 1968): 77-79.
[9] Peter Neary, “Confidence: How Much Is Enough?” Constitutional Forum constitutionnel 18, no. 1 (2009): 51-54; United Kingdom. Cabinet Office, The Cabinet Manual — Draft: A Guide to Laws, Conventions and the Rules on the Operations of Government. (London: Crown Copy-right, December 2010): 25.
[10] Philip Norton, “Government Defeats in the House of Commons: The British Experience,” Canadian Parliamentary Review (Winter 1985-1986): 6.
[11] Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 13-14.
[12] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar.(Ottawa, Government of Canada, 1968): 89.

Posted in Appointment of PM, Caretaker Convention, Confidence Convention, Constitution (Conventional), Crown (Powers and Office), Succession (Prime Minister) | 1 Comment