Rules Matter

For reasons quite beyond my comprehension, Canada is apparently having a “debate” about the rules applicable to government formation in the event an election does not produce a single-party majority in the House of Commons. Philippe Lagassé has covered the essential principles ― as they have long been accepted, certainly up until, roughly, the summer of 2015, and for the most part beyond that too. Contrary to the claims of some Conservative partisans ― and, if memory serves well, to those of the leaders of all three major federal parties during the 2015 election campaign ― winning a plurality of seats (i.e. being the single biggest party in the House of Commons) does not entitle a party to form government or its leader to become Prime Minister. Only an outright majority makes this automatic.

Of course, my saying that Professor Lagassé is right won’t persuade people who dismiss his views and hallucinate about him writing out of a partisan agenda. I don’t suppose they are open to persuasion at all, really. But here is something that Professor Lagassé does not discuss, which I think bears pointing out. Canada’s conventions of responsible government, including government formation, are not special or unique. On the contrary, they at the heart of what the framers of the Constitution Act, 1867 meant when they explained, in the preamble, that they were designing a “Constitution similar in Principle to that of the United Kingdom”. The UK follows similar conventions; so does New Zealand. Unlike Canada, though, both the UK and New Zealand have recorded the relevant conventions in authoritative (though not legally binding) Cabinet Manuals. One would think that, given the deliberate similarities between our constitutional systems, these statements ― made by people who have no conceivable interest in our partisan squabbles ― are worth considering.

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The UK’s 2011 Cabinet Manual begins by explaining that “[t]he ability of a government to command the confidence of the elected House of Commons is central to its authority to govern.”(2.7) This is crucial point; I will return to its significance below. The Cabinet Manual adds that “[c]ommanding the confidence of the House of Commons is not the same as having a majority or
winning every vote”. (2.7) Note that there is no mention of a plurality here. The next paragraph notes that

Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government. (2.8)

This has a number of important consequences, which Professor Lagassé explains, but I’ll simply reiterate the point that likelihood of commanding the confidence of the House of Commons is decisive; again, there is no mention of a plurality of seats mattering. This is confirmed in the next paragraph, which notes that, in ascertaining “who appears most likely to be able to command the confidence of the House”,

the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine [this] and communicate clearly to the Sovereign. (2.9)

Of course there would be no need for warnings about drawing the Sovereign into party politics if all that mattered were who won the most seats.

All this is again reiterated in paragraphs 2.12 and 2.13, under the heading “Parliaments with no overall majority in the House of Commons”. Finally, the Cabinet Manual outlines the possible outcomes:

The nature of the government formed will be dependent on discussions between political parties and any resulting agreement. Where there is no overall majority, there are essentially three broad types of government that could be formed:

• • single-party, minority government, where the party may (although not necessarily) be supported by a series of ad hoc agreements based on common interests;
  • formal inter-party agreement …
  • formal coalition government, which generally consists of ministers from more than one political party, and typically commands a majority in the House of Commons … (2.17)

This is a bit of an oversimplification, because these options aren’t mutually exclusive (one can imagine, say, a coalition of two parties working on an ad hoc basis with a third one), but the essential points are, first, that a single-party minority is not inherently more legitimate than a coalition, and, once again, that winning a plurality of seats doesn’t enter into the discussion at all.

New Zealand’s Cabinet Manual 2023 is to the same effect. It notes that

The Prime Minister is appointed by warrant by the Governor-General. In making this appointment, constitutional convention requires the Governor-General to:

Once again, there is no mention of the winner of a plurality of seats in the House of Representatives having any significance. On the contrary, what is highlighted is “discussions between political parties” that are “subsequent” (my emphasis to “the electoral process”. Again this is confirmed in a later chapter, which states

The process of forming a government is political, and the decision to form a government must be arrived at by politicians. Government formation may involve one or more parties.

In a case where government formation involves multiple parties, once the political parties have reached an adequate accommodation, and it is possible to form a government, it is expected that the parties will make appropriate public statements of their intentions. … 

By convention, the role of the Governor-General in the government formation process is to ascertain where the confidence of the House lies, on the basis of the parties’ public statements, so that a government can be appointed. (6.42-6.44)

As with the similar UK provisions, there would no need for any of this is the Governor-General simply had to invite the leader of the single biggest party to form the government.

So here are my questions to those who claim that the rule in Canada is different: when did Canada’s constitution cease to be “similar in principle” to that of the mother country and our Commonwealth siblings? For what reasons did that divergence happen? And what useful purposes does it serve? If anyone wants to offer a response, I’ll be happy to publish it as a guest post.

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Meanwhile, let me return to the key point from the UK Cabinet Manual: “[t]he ability of a government to command the confidence of the elected House of Commons is central to its authority to govern.” Being Prime Minister means nothing if you are unable to actually govern, which requires, at a minimum, securing money from Parliament (and more specifically from the House of Commons, whence “Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost” are required to “originate” pursuant to s 53 of the Constitution Act, 1867) to keep the lights on. Ideally, securing the House’s support for key legislation is part of it too, though not, as the UK Cabinet Manual notes, winning every vote.

A party that has nothing more than a plurality ― especially, but not necessarily, a narrow plurality of seats in the House of Commons may fail to secure funds and support for legislation from the rest of the House. In that case, it will lack any “authority to govern”, or indeed any ability to do so. Having its leader as Prime Minister will have as much significance as being an Admiral in the Great Navy of the State of Nebraska. This is why the ability to command the confidence of the House of Commons ― that is (oversimplifying a bit), to secure its support in votes on budgetary matters and some other key issues ― is the fulcrum of the rules on government formation, as explained by Professor Lagassé and as recorded in the UK and New Zealand cabinet manuals.

Some of the people who are claiming that winning a plurality of seats in the House of Commons is all that matters are not thinking this through because they do not understand what governing in our constitutional system actually involves. But others ― and presumably those who manufactured this whole “debate” are among them ― surely do understand, and have a further agenda. They would not be content to have a Prime Minister take office without being able to do anything with it. Instead, they would argue that their man is entitled not to be opposed by a hostile majority of Parliament, and that opposition (if not Opposition) is antidemocratic and illegitimate.

This is the end game here. We will be told that the majority of the House of Commons needs to make itself scarce, figuratively at least. And, to add insult to injury, we will be told that this is in the name of democracy and the will of the people.

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I don’t suppose any disclaimers of partisanship would be particularly useful at this point. My regular readers can surely tell where my antipathies lie (everywhere, really). Others wouldn’t believe me anyway. Like Professor Lagassé, I lament the difficulty, indeed the impossibility, of “good faith discussions with partisans” who “cast academic analyses as ideological disagreements, or to think there’s a scholarly plot afoot, if our views don’t align with partisan objectives”.

Maybe because I am lawyer and not a political scientist, though, unlike Professor Lagassé I am not quite content to “understand why an academic perspective might be dismissed as irrelevant or out of touch”. Constitutional rules are, well, rules, and the fact that the person reciting them is allegedly “out of touch” is beside the point. This is as true of conventions as it is of legal rules (assuming there is a difference between the two, which I doubt). Rules matter, and they have an existence independent of misrepresentation by either political partisans or Supreme Court judges. More often than not, this blog is devoted to pointing out the latter. But now there is seemingly a need to sound the alarm about the former. Consider yourselves warned.