Continuing the Conventions Conversation

Yesterday, I suggested that we may be in the midst of a change in the conventions pertaining to the formation of government after an election that results in what the British call a “hung Parliament” ― one in which no party has a majority of seats. Traditional convention allows the incumbent government to remain in office and to “meet” the House of Commons to see if it can obtain the House’s confidence. But all the major federal party leaders are on record saying that it is, instead, the party with the largest number of seats that should govern (so Stephen Harper) or at least have a “first shot” at forming a government (so Justin Trudeau). (Thomas Mulcair seems unsure of which it is.) People who actually know about the functioning of Westminster-type political systems have mostly dismissed these statements as ignorant and/or self-serving but, I argued, they may reflect the emergence of a new convention, that will modify the one to which we are used.

I got a lot of interesting comments on that post, both here and on Twitter (another reminder of how fortunate I am in my online interactions), and would like to respond to some of them in a more organized fashion than I was able to do yesterday. Apologies if I am ignoring your particular points, or not citing you by name ― it would be too time-consuming to go through everything again, especially on Twitter.

The comment that I found the most perplexing is that the leaders’ statements are really of no significance because they are just political posturing. Conventions are inherently political. They are, to be more precise, rules of political behaviour, born out of political practice, and crucially dependent on the politicians’ understanding of their own actions ― and the obligations that frame those actions. Now, if my interlocutors are only channelling Bismarck’s quip that the worst lies are told before an election, during the war, and after a hunt, and reminding us that talk is cheap and that we will only find out whether Messrs Harper, Trudeau, and Mulcair meant what they said after the election, I agree with them. Only ― call me naive ― I think that clear statements like the ones we have heard will actually limit the politicians’ options after the election.

One species of the “it’s just politics” comment suggested that Mr. Harper’s position, in particular, was actually aimed at making any coalition or arrangement between opposition parties to deny him confidence and form an alternative government of their own in the event of the Conservatives winning the most seats, by however slender a margin, seem illegitimate. This may well be a part of what is going on. But it is important to distinguish two questions that Mr. Harper, as well as some of my interlocutors are running together. Who gets the first shot at forming a government and seeking the confidence of the House of Commons is a separate question from whether the other parties could legitimately refuse confidence to whoever goes first, and make their own subsequent attempt at forming a government. That the answer to the first of these questions may change from “the incumbent” to “whoever wins most seats” need not imply ― though admittedly it might make it more likely ― that the answer to the second will change from “yes,” as it clear is under the existing conventions, to “no,” as Mr. Harper may well want it to be. The fact that Mr. Trudeau is actually distinguishing these questions and only saying that the party with most seats gets “first shot,” not that it is entitled to govern, is I think grounds for some optimism in this regard, though it would surely help if Mr. Mulcair clarified his views, and also if the media were alert to this distinction.

Anyway, I think that by focusing on the short-term politics of the leaders’ statements on government formation we risk ignoring some important, deep and long-term changes that are affecting our political system and may be driving the evolution of the constitutional conventions that govern it. Conventions, as I said yesterday, make it possible for the political system to adapt to the changes in the prevailing “political theory” of the times. If the “political theory” changes, conventions may have to change. And the “political theory” that prevails in Canada is changing, even though scholars are sometimes slow to acknowledge it. It is Paul Daly who really identified the key development here: the increasing centrality of the Prime Minister to our government, and consequently of party leaders to our politics.

Prof. Daly pointed to the centralization of power in the Prime Minister’s office. But there is even more than that. As I explain in some detail in an article published earlier this year in the McGill Law Journal, electoral campaigns increasingly focus on leaders, not parties and their platforms. As a result of these twin developments, our elections increasingly feel like presidential, not parliamentary ones. When Mr. Harper claimed that elections are about electing a government, he was dead wrong insofar as he meant this to be a description of the traditional Westminster system (which is how Mr. Harper presented this claim). But he was not so wrong if we take it as a description of how people ― including not only the ordinary voters, but also many in the media ― increasingly tend to think.

The traditional conventions regard the government as the bridge between Crown and Parliament. The government is the group of people advising the Crown while commanding the confidence of Parliament. The voters are absent from this picture. Elections are (almost) non-events, because what happens on election night does not, strictly speaking, matter. What matters is what happens when Parliament is recalled in the weeks or months thereafter. But given the changes in our politics, and perhaps also a more democratic set of background political values, it would not be surprising if this “political theory” proves unsustainable, and is replaced by a somewhat different one ― and if that’s what is happening, or happens at some point in the future, the conventions of government formation may well have to change.

Some of my interlocutors have suggested that this will cause practical difficulties. Hugo Cyr, for example, thinks it would be absurd to have an incumbent government resign if it fails to win most seats only to return to office if it, rather than the party with the most seats, is actually able to command the confidence of the House of Commons thanks to third-party support. Sure, that would be clumsy, but not necessarily more so than an incumbent government refusing to resign pending a certain defeat in the new House of Commons, which is a real possibility in our current system. In both cases, awkwardness can be avoided by the party entitled to the “first shot” at governing simply forgoing its turn.

Aaron Clausen has brought up what I think is a more interesting concern: the possibility that our electoral system will be changed in such a way that hung Parliaments become the norm, including Parliaments split between many more parties than are represented now. If this happens, the perception that the party with the most seats is a “winner” entitled to (at least) a first shot at forming a government might wither, and the emerging convention will be stillborn. Then again, it’s not obvious that the old convention of giving the incumbent the first shot will still make sense in those circumstances either. If anything, this point is an invitation for us to think carefully before we start messing with the electoral system.

I’ll mention one more issue that some comments brought up: the fact that the conventions of responsible government of which our political leaders seem to be ignorant are the same throughout the Commonwealth. These conventions structure not only the Canadian system of government, but the “Westminster system.” We are used to appealing to precedents in other countries that share it (and, for that matter, to those that occurred in Canadian provinces). That’s true of course. Yet the genius of the Westminster system is precisely its capacity for evolution ― and there can be no guarantee that the different polities that share that system will all evolve in the same direction or at the same speed. Attractive as the notion of a family of independent nations sharing a constitutional system is, it is probably unsurprising, and perhaps inevitable, that our “constitutional theories” should diverge at some point.

All that is not to say that the emerging convention of government formation ― if indeed it does emerge, and I have not said that it will, only that it may ― will be better, all things considered, than the current one, and still less that the “constitutional theory” underpinning it is attractive. I do not particularly like the leader-centred politics we have. But we cannot just pretend that our politics haven’t changed in the last half-century, or that these changes cannot cause constitutional conventions to change in their wake. It may be tempting to dismiss political leaders as self-serving ignoramuses, but when it comes to conventions, they are, for better and for worse, the people whose opinions and actions matter. We observers can criticize and push back, but must acknowledge that the rules can change ― even over our objections.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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