I am grateful to Charlie Buck for taking up my invitation to explain why the constitutional conventions of government formation in Canada have diverged from those recorded in the Cabinet Manuals of the United Kingdom and New Zealand, which I discussed here. However, I am not persuaded by his argument to the effect that, whatever may have been the case in Canada in the past, and still be the case in its fellow Commonwealth realms, our present conventions make the plurality party in the House of Commons uniquely entitled to govern.
There are several strands to Mr. Buck’s argument. First, conventions are political and flexible, and thus subject to revision from time to time as an “outgrowth of democratic impulses”. Second, the nature of Canadian politics today favours treating the plurality-winning party as endowed with a special governing mandate that any opposition coalition would lack. Third, recent (and perhaps not-so-recent) precedent favours this interpretation of the conventions of government formation. Finally, if the plurality party in the House of Commons is unable to govern in the face of a united opposition, the solution is a new election, rather than, potentially, an opposition takeover. At every step in this argument, Mr. Buck starts from truth, and quickly errs.
So far as the flexibility of conventions is concerned, there is no doubt that new conventions can add themselves to the constitution, as Mr. Buck’s example of the (arguable) convention requiring a referendum prior to any constitutional amendment illustrates. The present Prime Minister’s policy of only appointing bilingual judges to the Supreme Court is likely an attempt to create a convention, and there is nothing improper about it, though whether the attempt succeeds will depend on whether future Prime Ministers play ball.
Whether existing, established conventions can also decay or be replaced by something quite different strikes me as a more difficult question ― at least when the convention is as central to our constitutional order as those regulating government formation. At the very least, we should be wary of too quickly concluding that this has happened. This is because, if constitutional conventions are to serve as rules and as meaningful constraints on the behaviour of political actors, they cannot simply be whatever “partisans, acting on the wishes of their constituents” happen to believe. As I said in my original post, conventions must “have an existence independent of misrepresentation by either political partisans”. The issue here isn’t, contrary to what Mr. Buck suggests, whether we believe that conventions are different from law, let alone an academic’s self-serving wish to obtain “a monopoly on interpreting the nature of Canadian constitutional conventions”. It is that if the conventions are whatever a politician claims they are, then what we have is not a political constitution, but no constitution at all.
Besides, it is too easy to say that politicians “act on the wishes of their constituents”. Mr. Buck refers to no evidence of these wishes, other than the politicians’ own say-so ― and politicians just aren’t great at discerning their constituents wishes. At most, we have the unpopularity of the 2008 attempt by a coalition of opposition parties to oust the Conservative minority government. I will return to it below, but for now, suffice it to say that attributing it to an alleged belief that the plurality winner is entitled to govern is pure speculation.
What is not speculation, and needs to be taken into account, is that voters are generally ignorant of even basic constitutional rules, be they legal or conventional. This may very well result in their having wishes that are contrary to such rules. But that does not give the politicians license to break the rules. Even if a poll were to show unambiguously that Canadians would rather that a Governor General not assent to a bill passed by the House of Commons and the Senate, that would not justify the Governor General in withholding assent. Again, were it otherwise, we would not a political constitution, but no constitution at all.
I turn now to the claim that changes in the way politics are done and understood ― namely, the prominence of parties and party leaders at the expense of individual MPs ― favour abandoning the longstanding conventions of government formation in favour of a plurality-winner-take-all rule. The changes are real enough: I have discussed them here, in a post drawn from an article published in the McGill Law Journal (and based, for this part of the argument, on Bernard Manin’s historical and theoretical work and a close look at the 2011 election campaign in Canada). But they are not a compelling explanation, let alone justification, for an alleged change in the conventions of government formation in Canada.
For one thing, one has to wonder what took so long. These changes aren’t new. The emergence of political parties rather than individual parliamentarians as the dominant actors ― what Professor Manin describes as “party democracy” ― was well underway in the second half of the 19th century. The increased prominence of leaders due to their ability to speak directly to voters ― Professor Manin’s “audience democracy” takes off in the 1970s. Why would it be the case that government formation conventions only responded to these changes in the last 10, perhaps 15 years?
Perhaps even more strikingly, though: why would this only have occurred in Canada of all places? As Professor Manin explains, the tendencies to which Mr. Buck points are common to Western democracies. They certainly have not bypassed the UK and New Zealand. More than that: in the 1990s, New Zealand switched to a (mixed-member) proportional electoral system where the partisan composition of its House of Representatives depends almost entirely on the votes cast explicitly for a political party. To a much greater extent than Canada (and the UK), New Zealand has consecrated the dominance of parties over electoral politics in its law. Yet, as I have shown in my last post, New Zealand retains the traditional conventions of government formation, to whose operation the prominence of political parties and their leaders is evidently no obstacle. After the 2017 election, a Labour-led government under Jacinda Ardern took office, despite Labour winning 10 fewer seats than the National Party (in 120-member House!). There is nothing “nostalgic” about this; this is just the Westminster system operating as it always has.
Of course, Mr. Buck is right that “Westminster systems are also capable of diverging from each other”. But the whole point of the challenge I issued in my earlier post was to ask those who think like him to explain why they think the divergence has happened. What is different in Canada? Emmett Macfarlane usefully reminds us that the simple fact that plurality winners have always taken office after 1925 is not enough. Nor is Mr. Buck’s generic claim that “diversity in response to shifting environmental conditions is a strength not a weakness of the Westminster model”. What environmental conditions have changed in Canada in the way they have not in the UK and in New Zealand ― other, that is, than the self-serving claims of politicians?
This brings me to the question of precedents. Mr. Buck mentions three: the King-Byng Thing, the implosion of the 2008 opposition coalition, and the statements of major party leaders in 2015. None are conclusive.
King-Byng is inapposite, if not outright contrary to Mr. Buck’s point. If King was the good guy in that story, which I’m not particularly convinced of, it is worth recalling that he had formed a government despite Arthur Meighen’s conservatives having won more seats than his Liberals at the previous election. Not a problem then, I suppose. But more importantly, King-Byng is a very well known story throughout the Commonwealth ― I used to teach it in New Zealand, for instance ―, yet nowhere is it thought to stand for the proposition that the plurality party in the House of Commons (or its equivalent) is specially entitled to govern. It is, above all, a cautionary tale about the appearance of vice-regal partiality, and helps explain why the Cabinet Manuals of the UK and New Zealand are so insistent that the Sovereign or his representative are not to be drawn into government formation discussions, and that the politicians need to work out for themselves where the confidence of the House lies. As I pointed out in the previous post, none of that would be worth saying if the Sovereign simply needed to appoint the leader of the plurality party as Prime Minister.
As for the events of 2008, we know that the coalition was unpopular, and was unable to hold together long enough to actually oust the Prime Minister. But was that due to rejection of the principle of coalition governments without the participation of the largest party? Or to that particular coalition’s membership (notably its including the Quebec separatists)? To the personal unpopularity of its putative leader? To it being an attempt to change governments months after, rather than in the immediate aftermath of, an election? That, I don’t think we know.
The 2015 statements are a somewhat different matter, because they were seemingly explicit and on point. While I have struggled to find news stories to link to, I share Mr. Buck’s recollection of the events: “The leaders of all the major parties in 2015 [stated] that the largest party should form government”. What I do not share is his interpretation of these statements as concessions: hence the change I have made in quoting him. One needs to recall the peculiar dynamics of the 2015 election campaign, during much of which it was widely thought that all three major parties had a decent shot at ending up as plurality winners. The eventual result, an outright majority for one party, was unexpected until perhaps the final week if not the last few days of the campaign. In these circumstances, the leaders’ claims that the plurality winner ought to become Prime Minister were not concessions made against interest but demands for deference made in the hope that the would be in a position to claim this supposed mandate. As Professor Macfarlane notes, “we should be cautious about relying on statements by political leaders in the midst of election campaigns as if they reflect constitutional principle rather than political tactic”.
What the King-Byng and 2008 precedents can help with is the consideration of Mr. Buck’s final point: that, while it is legitimate for the opposition to deny a minority government the confidence of the House of Commons, the only legitimate consequence of such a denial is an election. The formation of an alternative government by the opposition is out. I want to credit Mr. Buck for making clear that a denial of confidence is legitimate. As I said in my earlier post and as I am about to explain again, I strongly suspect that the politicians who share his views on the conventions of government formation would inappropriately deny this. But I am not convinced that the only legitimate response to such a situation is a new election.
What 1926 and 2008 have in common is that they happened months after an election and after the government whose ouster was being contemplated had initially retained the confidence of the House of Commons. In such circumstances, a new election may well be the best response to a loss of confidence, though I would not yet say that this is a conventional requirement. Evidently the opposition leaders in both 1926 and 2008 did not believe that they were bound by any rule against mid-Parliament government changes, and what is politically unwise or even reckless is not necessarily unconstitutional, even in a conventional sense.
But the focus of the present debate about government formation, as I see it, is not so much on what might happen months after an election, but rather ― as in 2015 ― on an election’s immediate aftermath. If (like King’s liberals in 1925) the party of the incumbent government fails to win a plurality of seats, must it (unlike King) resign and give way to the new plurality winner? Or, if it does win a plurality (like New Zealand’s National in 2017), is it automatically entitled to continue in office despite the opposition joining forces to deny it confidence, (as National was not)?
I suspect that voters’ appetite or perhaps even tolerance for a new election in the immediate aftermath of the one that was just held would be nil, and understandably so. There would not be much reason to expect a second election to produce a different result from the first, and so provide a way out of the impasse. This is why I think that, although this is not Mr. Buck’s intention, adopting his interpretation of the conventions of government formation will inevitably lead to claims that it is illegitimate for the opposition to deny confidence to a government formed by the plurality party in the House of Commons. Note that, in 2008, the then-Prime Minister’s reaction to the coalition’s attempt to oust him was not to go to the Governor General and ask for a dissolution ― which, in light of King-Byng, may have been granted. It was to avoid facing a denial of confidence by the House of Commons and to cast aspersions on the legitimacy of such an eventuality.
By far the better view is the one captured by the UK and New Zealand cabinet manuals. When an election produces a hung Parliament ― i.e. one in which no one party has a majority in the House of Commons ― the politicians should work out where confidence lies. Ideally, this should be done by negotiation before the new House meets. Failing that, the incumbent administration, which of course remains in office throughout, is entitled to meet the new House and see if it can secure its confidence, which is tested by the vote on the Speech from the Throne. And if confidence is denied, which is perfectly legitimate, the opposition, whether or not it includes the plurality party, gets a chance to form a new government without an election needing to be held. Only if the alternative government cannot secure confidence either does an election become the only way out of the impasse and a constitutional necessity.
In short, there are no good reasons to think that the constitutional conventions of government formation in Canada have changed from what they have long been understood to be both in this country and elsewhere in the Commonwealth. There is no real evidence of the public understanding and demanding such a change; nor are the politics of an “audience democracy” any less suited to the orthodox understanding of conventions than those of earlier periods. Political precedents do not support the alleged change either. On the contrary, as explained both in my previous post and here, unsurprisingly, our political system will work better ― the legitimacy of opposition being preserved and wholly unnecessary and futile elections being averted ― with the orthodox understanding of conventions.
All that being so, both I in my previous post and Professor Macfarlane have been wondering why this whole debate is even happening. Part of the answer is excusable confusion. Part, I am afraid, is that, exactly as in 2015, some political actors see fanning this confusion as a shortcut to power. And part is that the populist spirit of the times is seeping even into good faith intellectual discussions, as Mr. Buck’s post illustrates. His appeal from the consensus opinion of “academics dictating” what the constitution ought to be to the authority of the voters “in this democratic age” is a familiar one. As with all such populist appeals, the irony is that allowing it would empower self-serving political elites at the expense of voters too poorly informed to see through it.
In the face of these populist tendencies, the role both of politicians and of academics is to remind the voters of the rules and the reasons these rules exist. Of course, academics have an easier time doing this because their self-interest is not nearly as implicated. But if politicians aren’t capable of doing what is right instead of what will win them some extra votes, what good are they? It is regrettable that Canada’s politicians failed in 2015, and may well fail again. But that only makes it more important for academics to hold the line.