Double Aspect

A couple of weeks ago, I published a post arguing that the conventions of government formation in Canada did not give any special entitlement to the party winning a plurality of seats at a general election ― just like these same conventions in the UK and in New Zealand. That post invited responses from the proponents of the contrary view, and I am very pleased that one has taken up the challenge. His response is below. I will post a reply tomorrow.

Guest Post by Charlie Buck, PhD Student (Political Science), University of Toronto

In Canada, the party with the plurality of seats should form government. Professor Leonid Sirota mistakenly suggests Canada instead follow the rules of government formation outlined in the cabinet manuals of the United Kingdom and New Zealand.

He is hardly alone in holding a textbook understanding of government formation. Political scientists Peter Aucoin, Mark D. Jarvis, and Lori Turnbull argue the same in their award-winning monograph Democratizing the Constitution: Reforming Responsible Government. They blame the slide towards executive dominance of the legislature on the ambiguity that is at the heart of the constitutional conventions of responsible government. Prime ministers of all partisan stripes have routinely exploited the confusion that surrounds the governor general’s reserve powers over dissolution, prorogation, and summoning to run roughshod over parliamentary democracy. One need only cursorily point to Jean Chrétien’s knack for snap election calls or Stephen Harper’s use of prorogations to avoid opposition scrutiny, to see this prime ministerial abuse of conventional authority in action.

In the midst of their disillusionment with contemporary conventional practice, what most experts on law and politics appear to have forgotten is how those conventions materialize in the first place. Conventions are separate from legal rules (contra Professor Sirota’s doubtfulness that the two can be distinguished) precisely because they are politically rather than legally binding. A virtue that comes from this political nature is flexibility. As the written law is enforced through judges who are sensitive to precedent and may only modify what has already been settled through the ad hoc flow of real cases and controversies, the pace of legal change is slow, potentially glacial. Conventions’ responsiveness to the public mood tolerates a greater dynamism than rigid legal rules allow.

The enforcement of conventions takes place in the political arena; partisans, acting on the wishes of their constituents, are much more relevant to their operation than academics. That these academics are “out of touch” is beside the point. That they do not have a monopoly on interpreting the nature of Canadian constitutional conventions is not.

Other than their flexible nature, conventions hold the advantage over codified constitutional rules by being the outgrowth of democratic impulses. As has already been stated, it is not academics dictating the nature and scope of conventional rules (no matter how much they may wish otherwise), but the people acting through their own voices, the media, the ballot box, and their representatives. Academics and judges may observe what the conventions are in a given moment, but they do not get to ordain their meaning nor freeze that meaning for eternity. Professor Sirota is certainly correct that constitutional rules are rules and conventions are rules too. But he is wrong to collapse the differences between them.

The nostalgic understanding of government formation has evolved in this democratic age to mean that only the largest party can claim the legitimacy to form a government. It is not for Canada’s constitutional scholars to decide the rightness or wrongness of that transformation. Conventions are not just formulaic legal rules but normatively desirable governing principles. To quote A. V. Dicey, conventions are “a body not of laws, but of constitutional or political ethics.”

The ethics of transforming the standards of government formation makes some sense. Canadians no longer—if indeed they ever did—vote on the basis of the qualities of local candidates. Elections are now much more nationally driven, leader-centric, and partisan affairs. It is increasingly at odds with reality to think of the House of Commons as formed from 338 individuals representing their ridings rather than from leader-dominated parties.

In conjunction with the changing face of parliamentary representation, democratic accountability has risen to the forefront. From this so-called “decline of deference” has developed another convention surrounding an area of Canadian political life as vital as government formation: constitutional amendment. Many political scientists blame the closed-door process of negotiation for the ultimate failure of the Meech Lake Accord. Participants in the later Charlottetown round were cognizant of this fact and addressed it head-on by holding a national referendum, only the third held in Canadian history. Today, scholars such as Peter Russell and Richard Albert speculate this precedent has generated a new conventional rule that major constitutional overhauls require the direct consent of the Canadian people through national referendums. If the conventions governing constitutional amendment are open to modification as a result of democratic pressure, why not also the conventions that surround government formation?

With a demand for greater accountability and citizen participation in the workings of government, the confidence convention has evolved in the direction it has. The democratic sensibilities of Canadians now require, not just that governments command a confidence of the House cobbled together by backroom agreements and coalitions between party insiders, but that they do so while holding the most seats in the chamber. If the party with the most seats cannot muster the necessary majority to pass spending bills then an election must be called.

The exception proves the rule. The only time in Canadian history a governor general has not called an election at the insistence of a prime minister, in the famous King-Byng Affair, the Canadian people expressed their displeasure towards Governor General Byng by rewarding that prime minister with a plurality of seats in the subsequent election with which he was able to maintain the confidence of the House. This not only shows that the transformation of the confidence convention requiring a plurality of seats was a long time coming but also that political actors who violate the new conventional rule risk the wrath of the electorate.

It is telling on this front that politicians have followed the desires of the public, notwithstanding these many academic objections. The leaders of all the major parties in 2015 conceded that the largest party should form government, but this is a practice that goes back far longer. Every prime minister in Canadian history faced with a larger party in the legislature following an election resigned or asked for dissolution rather than try to continue on. Once again, the exception proves the rule. Canadians’ popular rejection of coalition government during the 2008-9 parliamentary crisis, the unravelling of the agreement between the Liberals, NDP, and Bloc, and the subsequent Conservative majority win in 2011, is a cautionary tale of what happens to parties finding themselves on the other side of the conventional line.

In the end, this dispute comes down to different understandings of what conventions are and should be. A discomfort with flexible, politically enforced rules appears to favour cabinet manuals like the ones in the United Kingdom and New Zealand. The antidote to ambiguity and political constitutionalism is the codification of clear-cut rules in cabinet manuals. An understanding of conventions on these terms is at cross-purposes with their virtues, namely, their dexterity and democratic enforceability.

In no way does this difference of opinion cloak a hidden partisan agenda. As Professor Sirota quite rightly says, the opposition, including one constituting a majority of the House, may properly oppose the government’s agenda. If this results in a loss of confidence then an election should be held and the resulting plurality (or majority) party given the opportunity to govern.

Far from something to be condemned, the debate over responsible government’s organic evolution into something other than originally understood by the framers of the British North American Act puts into sharper focus the remarkable ability of Westminster systems to adapt their governing arrangements to changing circumstances. Westminster systems are also capable of diverging from each other, as the historical experiences of Canada, the United Kingdom, New Zealand, and Australia make plain. This diversity in response to shifting environmental conditions is a strength not a weakness of the Westminster model. In the populist, turbulent moment we are living through, governing arrangements require an elasticity capable of adjusting to the people’s wants and desires.