Unconstitutional and Unconstitutional

Why delegating plenary taxing powers to the executive is wrong as a matter of constitutional principle and constitutional law

The government’s fortunately short-lived proposal to arrogate to itself the power to make regulations “that have the effect of repealing or imposing a tax, decreasing or increasing a rate or an amount of tax or otherwise changing the incidence of tax” generated a flurry of discussion about aspects of the constitution that are both fundamental and obscure. The most impressive contribution to this conversation is that of co-blogger Mark Mancini. Mark argues that, while a sweeping delegation of the power to tax to the executive is bad policy, it is not unconstitutional. Specifically, he addresses two arguments about it constitutionality: one based on section 53 of the Constitution Act, 1867, and one based on the unwritten principle of democracy.

For my part, I am not convinced by what Mark says about section 53, and I think that the principle of democracy is not the most important one to think about here. In my view, the Supreme Court’s interpretation of section 53 does not support ― and indeed give reason to challenge ― a delegation as sweeping as that which was apparently contemplated. The principle of responsible government ― not just democracy writ large ― also calls it into question. Before getting to these arguments about constitutional law, though, I think it’s important to emphasize that a plenary delegation of taxing powers is unconstitutional in a somewhat different sense.

Government action can be meaningfully said to be unconstitutional even if it contradicts no rule of binding constitutional law that could be enforced by the courts. This is most obviously so in the case of a breach of constitutional convention (assuming, that is, that the orthodox distinction between convention and law still holds), but arguably even in the absence of a violation of a precise rule, if government acts contrary to fundamental principle. It is in this sense that the governments (and Parliaments) of the United Kingdom and of New Zealand can be said to act unconstitutionally. The constitutions of these polities are not entrenched and judicially enforceable, but they are no less real, and susceptible of being contravened in a way that calls for denunciation in constitutional terms.

One of the fundamental principles of the Westminster constitutions since at least 1688 is that of Parliamentary control over taxation. Mark refers to the post-Glorious Revolution constitutional settlement by saying that “if the Bill of Rights of 1688 meant anything, it meant that Parliament came into its own as the controller of the executive; it became a sovereign body” ― but that’s not quite right. The references to Parliamentary control of the executive in the Bill of Rights are more precise than a general assertion of sovereignty. They do not focus on Parliament’s power to make laws ― that was a given, and the Crown’s inability to make new law was recognized in the Case of Proclamations 80 years earlier. Nor do they involve a general control of the executive ― that would only come with responsible government, which developed over a long period of time starting decades after the Glorious Revolution and not taking a final form until the 1830s.

What the Bill of Rights 1688 did do was to impose firm prohibitions on the Crown “suspending laws”, “dispensing with laws”, and “levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted”. Now, “consent of Parliament” overrides these restrictions, as it obviously does that on the Crown’s law-making power. Acting “by and with the advice and consent” of Parliament, the Crown can make and change law, and it can impose and abolish taxes. The question, though, is whether this consent can be given prospectively, in advance, and in the form in effect of a blank cheque. After all, granting the Crown, acting on the advice of its Privy Council (and, in practice, of the cabinet) rather than of Parliament, the power of “repealing or imposing a tax, decreasing or increasing a rate or an amount of tax” amounts to nothing else.

In my view, the principle behind article 4 of the Bill of Rights ― the one dealing with “levying money without grant of Parliament” ― requires specific authorization on an ongoing basis. Parliament sought, and succeeded in gaining the ability, to actually keep tabs on the executive’s finances. It did not do so to simply let the executive run itself as if 1688 hadn’t happened. “The Crown can imposes whatever taxes and imposts it pleaseth, for ever and ever” would not be consistent with the purpose of article 4, and the contrary idea wouldn’t have occurred to anyone until the development of responsible government, and indeed well after. But even now, it is not a sound idea. Parliamentary scrutiny of taxation must be constant to be effective. It cannot just happen once in a blue moon, and the vagaries of question time are not a sufficient substitute for accountability mechanisms focused on taxation and spending.

The proposed delegation of taxing power to the executive was not, of course, for ever and ever. But it would have lasted almost half the duration of a normal Parliament, and longer than hung Parliaments typically survive in Canada. And it was, of course, quite uncabined ― the executive really would have been able to do anything it pleased. In my view, it is absolutely contrary to the principle and spirit of article 4 of the Bill of rights 1688, and so not merely stupid, but actually unconstitutional, at least in the sense of being inconsistent with the constitution’s underlying commitments. Whether the courts would have been able to do anything about this is a separate question, and a moot one at this point.

Despite its mootness, I turn now to the question of the constitutional legality of the government’s proposal. As noted above, the key constitutional provision here is section 53 of the Constitution Act, 1867, which provides that “Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons”. The question is whether taxes imposed pursuant to delegation, and one as broad as the one described above, meet this requirement.

It may be worth pointing out that the exact status of section 53 is somewhat mysterious. The Supreme Court has long held, as Justice Iacobucci put it in Ontario English Catholic Teachers’ Assn v Ontario (Attorney General), 2001 SCC 15, [2001] 1 SCR 470, that “[s]ections 53 and 54″ ― of which more shortly ― can be amended by Parliament”. [68] Yet Justice Iacobucci went on to say that “there is a constitutional guarantee of ‘no taxation without representation'” ― for which section 53 is (rightly) taken to stand ― “in Canada”. [70] I’m not sure how these two statements are to be reconciled. In any event, the position seems to be that, at least so long as section 53 has not in fact been amended, failure to comply with it will result in the invalidity of non-compliant legislation, rather than being taken as (pro tanto) implied repeal. 

So would the proposed delegation comport with section 53? In OECTA, Justice Iacobucci offered the following general principle for assessing delegations of the power to tax:

The delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. The animating principle is that only the legislature can impose a new tax ab initio. But if the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the requirements of the principle of “no taxation without representation” will be met. In such a situation, the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. [74]

Justice Iacobucci then went on to explain why the delegation at issue ― a grant of power to a Minister to set the rates of a school tax ― was acceptable:

The [impugned statute] … expressly authorizes the Minister of Finance to prescribe the tax rates for school purposes.  When the Minister sets the applicable rates, a tax is not imposed ab initio, but is imposed pursuant to a specific legislative grant of authority.  Furthermore, the delegation of the setting of the rate takes place within a detailed statutory framework, setting out the structure of the tax, the tax base, and the principles for its imposition. [75]

There is, then, a crucial distinction between the imposition of taxes ab initio and the imposition of “a tax that has been approved by the legislature”. Justice Iacobucci’s discussion of the case before him at least strongly suggests that, to count as “approved by the legislature”, the tax ― at least its purpose, but probably also (some of?) its “structure”, “tax base”, and “principles for its imposition” ― has to be described with some specificity.

The proposed delegation of a blanket authority to impose new taxes and to “chang[e] the incidence of tax” is too vague to meet these requirements. It contemplates that taxes might be created, but does not explain to what end they must be levied or on what principles. It amounts to an authorization for the executive to create taxes ab initio ― but OECTA suggests that such an authorization cannot be given, at least, without repealing section 53 of the Constitution Act 1867, and perhaps at all.

Mark writes that, historically, the Supreme Court “has permitted extremely broad delegations of power—especially in crisis situations—so long as the executive remains responsible to Parliament for the exercise of these extraordinary powers”. He recognizes that the leading cases on this, In re Gray, (1918) 57 SCR 150, and Re: Chemicals, [1943] SCR 1 were not decided in the context of taxation, but argues that the principle they stand for, which is that (to quote Mark) “so long as Parliament retains control over the delegated power—so long as it does not ‘abdicate’ its power (Gray, at 157) there is no legal concern”, is applicable.

I’m not so sure. Taxation really is different from other types of legislation. This is where section 54 of the Constitution Act, 1867 comes in. It provides that

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

I feel on shaky ground here, and would welcome correction, but I wonder if the consequence of this provision is not that unlike with normal legislation, where ― in theory, since in practice the executive is actually driving the legislative agenda ― Parliament is indeed free to resume control, when it comes to tax matters, delegation to the executive is a one way street. Once the executive gets its hands on a broad delegated authority to tax, it need not to “recommend” any legislation undercutting this authority by levying taxes not created by regulation to the House of Commons, and Parliament is then handcuffed for as long as the delegation runs. (This also makes delegation of taxing authority to the executive very different from delegation to, municipalities ― municipalities aren’t able to control the enactment of new tax laws by provincial legislatures.)

Let me finally address the other point Mark makes, about unwritten constitutional principles. As explained here not long ago, I am much less skeptical about the use of such principles in judicial decisions than many of my fellow scholars, including Mark. That said, I agree that the principle of democracy is vague ― democracy can take any number of different forms, and we must be careful to implement the specific form of democracy provided for by the Canadian constitution, and not some idealized version of what that principle might mean.

Yet here the relevant principle is not democracy generally, but the particular form of democracy that is at the heart of the Canadian constitutional order: responsible government. In turn, money votes, of which votes on tax bills are one (but not the only) sort are at the heart of responsible government. Winning such votes is how a ministry demonstrates the continued confidence of the House of Commons. Delegation of taxation powers to the executive allows it to avoid these votes, and so arguably undermines, although admittedly it does not completely subvert, this fundamental principle.

What, if anything, the courts might do about this is not an easy question. Courts are sometimes ― although not always, as I have argued in the post linked to above ― reluctant to enforce constitutional principles against legislation. But two precedents are worth thinking about. First, there is Justice Beetz’s warning, in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2, that there may be limits to a provincial legislature’s ― or Parliament’s ― ability to “do anything it pleases with the principle of responsible government itself”. (46) Justice Beetz is evasive as to the extent and source of these limits, but he does suggest that the legislatures (and Parliament) may lack “power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system”. (47) And second, there is the much more recent Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, where the Supreme Court found that an entrenched “constitutional architecture” limited the ability of Parliament to bring about constitutional change by ordinary legislation. If I am right that this architecture consists of constitutional conventions, it may well protect the principle of responsible government against fundamental interference, as Justice Beetz suggested.

In short, the delegation of plenary taxing authority to the executive is doubly unconstitutional. It is unconstitutional, first, in the British sense of the word ― as contrary to the constitution’s logic and fundamental commitments. It is unconstitutional, second, in the Canadian sense of the word, as contrary to an express provision of the constitution, and arguably also to its legal underlying principles.

It was not merely stupid, or a bad policy. It was an attempt at a serious breach of the basic rules of our political order. As Keith Whittington has recently written over at the Volokh conspiracy, “[t]he normal logic of political rent-seeking and incompetence does not magically disappear in a crisis, though we might have to be more tolerant of such political failings in order to deal with a fast-moving situation”. The now-defunct proposal was not merely rent-seeking, but a power-grab, perhaps an unprecedented one. The present moment may mean that punishment for it must be delayed, but it ought to count against its perpetrators.

(Still) a Convention?

At his History News blog, Christopher Moore is arguing that “responsible government is not a ‘convention’.” In his view, the “basis of responsible government in Canada” is right there in the constitutional text ― specifically, in the provisions of the Constitution Act, 1867 that deal with money votes. Dale Smith replies in a post at his own blog, Routine Proceedings, pointing out that these provisions make “no mention of a PM, or cabinet,” reflecting the fact that these are indeed the creatures of “the unwritten conventions that we inherited from the UK.” Mr. Smith has the better of this particular debate ― but his insistence that responsible government is purely conventional overlooks sources of constitutional law other than the text.

Mr. Moore claims that “Section 54 of the Constitution Act, [1867] … sets out in plain language that only the cabinet can make and propose the raising and spending of money,” while “53 … bluntly states that only the House of Commons can give approval to the cabinet’s proposals for getting and spending.” He argues that “[s]ince getting and spending money covers everything a government does, these two sections make the government responsible to the Commons.” This is quite wrong.

First, the language of section 54 is anything but plain since, as Mr. Smith points out, it does not even mention the cabinet, and speaks of the Governor General instead. It convention that requires the Governor General to act on the cabinet’s advice. The constitutional text does not say that. Second, section 53 doesn’t say that “only the House of Commons can give approval” to money bills. It says that such bills must “originate in the House of Commons,” but they must, as all other bills, be approved by the Senate too. It is again convention that dictates that the Senate will not stand in the way of a money bill approved by the Commons. And third, one cannot simply equate the rules dealing with the passage of money bills with those of responsible government. For one thing, not only money bills are matters of confidence on which a cabinet will stand or fall ― so is the Speech from the Throne, and so can be other bills, if the government so chooses. And for another, there is no law of nature that says that money bills must be matters of confidence at all. In the United Kingdom, section 2 of the Fixed Term Parliaments Act 2011 means that they are not ― it takes a separate vote on a motion in prescribed terms for the House of Commons to express its lack of confidence in the government. It is, yet again, convention that (still) singles out votes on money bills as having a special constitutional importance in Canada. In short, while the text of the Constitution Act, 1867 was written with the conventions of responsible government in mind, it neither comes close to codifying them nor can otherwise be understood as “the basis of responsible government in Canada.”

That said, it is important to note, as Mr. Smith does not, that in Canada constitutional text is not all there is to constitutional law, and that it is possible ― and in my view likely ― that the rules of responsible government belong to that part of constitutional law which is not reflected in the text itself, and thus are not only conventional. In Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2, Justice Beetz suggested that

[i]t may very well be that the principle of responsible government could, to the extent that it depends on … important royal powers [which may be entrenched by the references to the ‘offices’ of the Governor General and the Lieutenant-Governor], be entrenched to a substantial extent. (46)

More recently, and more importantly, in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704,  the Supreme Court took the view that the (legal) constitution encompassed, among other things, an “architecture,” consisting of “[t]he assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another.” [26] An interference with that architecture, the Court opined, amounted to a constitutional amendment. Now, the conventions of responsible government are surely among “the assumptions that underlie the text” of the Constitution Act, 1867, which concern “the manner in which the constitutional provisions are intended to interact with one another.” The text says nothing about the Cabinet, the Prime Minister, votes of confidence, or the Senate’s deference on money bills. But it would not have been enacted in its existing form had the existence of these institutions and rules not been assumed and universally accepted.

This leads me to the conclusion that, although the rules of responsible government are of clearly conventional origin, and the constitutional only leaves room for them to operate (in addition to referring to them, obliquely, in the preamble), they are now entrenched and legal rules. This is not to say that they are, or ought to be, justiciable. Perhaps courts would hold to the orthodoxy, expressed in the Patriation Reference, [1981] 1 SCR 753, that “the remedy for a breach of a convention does not lie with the courts,” (882) though I am not certain that they would. Yet just as a modification to the assumptions regarding the respective roles of the House of Commons and Senate requires, according to the Reference re Senate Reform, a constitutional amendment with provincial consent because it modifies the constitutional architecture (a view which the Supreme Court said “is supported by the language” [64] of the Constitution’s amending formula), so I believe would a attempt to change the rules of responsible government, say by limiting the scope of what counts as a vote of non-confidence. This would, in my view, be the case quite apart from any interference with the vice-regal office, though this may play the same sort of supporting role that the constitutional text played in Reference re Senate Reform.

I’d like to make one additional observation, regarding Mr. Smith’s claim that while

Responsible Government can function without [political] parties … in a theoretical world with vampires and unicorns, … it will never happen in real life. … The practice of parties developed for a reason. Maintaining confidence without them is a fool’s errand.

The conventions of responsible government gelled in the United Kingdom in the 1830s. There already were political parties by then, and there had been for quite some time. However, these parties were looser and much less disciplined than those to which we are used now. And they were indeed rather less good at maintaining confidence in the cabinet. The strong, disciplined, and effective parties that we know now emerged gradually, in response not only to the need for maintaining confidence but also to the broadening of the franchise which had only begun in 1832, and continued over the following decades. So while we almost certainly need political parties of some sort in order to maintain an effective system of responsible government, these parties need not look and operate the way they do today.

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.

Constitutional Metamorphosis

The major party leaders have made some curious statements regarding the formation of a government in the aftermath of an election where no party claims the majority of seats. First Thomas Mulcair, then Stephen Harper, and then Justin Trudeau as well, have asserted that whichever party wins more seats than the others should be called on by the Governor General to try and form a government. But that’s not what constitutional conventions, as understood by anyone who has actually studied them, say.

The conventions of responsible government require the government to enjoy the confidence of the House of Commons; but an incumbent a government is, we might say, deemed to be enjoying the confidence of the House until a vote of the House proves otherwise. The prorogation crisis of 2008, when the Governor General took the Prime Minister’s advice to prorogue Parliament is a case in point ― even though everybody knew that at that moment the government did not actually have the confidence of a majority of MPs, it is not enough for everybody to know. There has to be a Parliamentary vote to confirm what “everybody knows.” Similarly, it has always been said, after an election, the incumbent government is entitled to “meet the House” of Commons and test its confidence. Only if it does not obtain the confidence of the House does convention force it to resign.

Thus, contrary to what Messrs Mulcair, Harper, and Trudeau have claimed, the government’s number of seats has nothing to do with its entitlement to remain in office ― so long as no other party has got a majority. (If one has, there is no point in an incumbent government trying to meet the House, and I think it’s fair to say that there is a convention that demands the government’s prompt resignation in that event.) Accordingly, Andrew Coyne is wondering whether the leaders “understand the basics of our system of gov[ernmen]t,” and Emmett Macfarlane is positive that they do not. Dale Smith thinks they are “totally wrong.” Others have chimed in to the same effect as well. But the better question, in my view, has been asked by John Michael McGrath: “At what point does this go from ‘wrong answer’ to ‘new unwritten convention’?”

Constitutional conventions are just like law in that they are only valid until they have been changed. Conventions are unlike (some) law in that it is often difficult to tell when they have changed. (Actually, the common law, or any law articulated by courts is sometimes like that too. It is only at a certain point in the development of a line of cases that it becomes possible to say that the law is no longer what it had been at some earlier point.) But while it is can be difficult to pinpoint the moment when a convention has changed, we do know that conventions can change, and those pertaining to government formation are no exception.

Conventions, W.S. Holdsworth wrote in “The Conventions of the 18th Century Constitution,” (1932) 17 Iowa L. Rev. 161 ensure “that the constitution works in practice in accordance with the prevailing constitutional theory of the time.” (163) As the prevailing constitutional theory changes, so do conventions. How do we know though that a convention has changed? The same way that we know that one exists in the first place ― by looking at the behaviour of political actors to determine whether, in Sir Ivor Jennings’ classic formulation (endorsed by the Supreme Court in the Patriation Reference), there are “precedents” for an alleged convention; whether “the actors in the precedents believe that they were bound by a rule”; and whether there is “a reason for the rule.” If the convention observed at point B is not the same is that which regulated the same events at some previous point A, the convention has changed.

To come back to Mr. McGrath’s question, how do we know whether the convention regulating government formation in Canada has changed? Prof. Macfarlane has suggested that we would know “[w]hen [an] incumbent wants to test confidence but a [Governor General] ignores them & appoints a new gov[ernmen]t before the House meets. Maybe.” I don’t think that’s the only possibility. We don’t need to wait for a Governor General to dismiss an incumbent government when an opposition party wins a majority of seats to know that convention requires the incumbents to resign in such circumstances. Incumbents unfailingly resign on their own in such circumstances. Similarly, we wouldn’t need the Governor General to dismiss a government that wants to appoint one formed by the party with a plurality of seats.

If the Conservatives do not win a plurality of seats on October 19, and the government resigns without trying to meet the House, despite no opposition party having won a majority, and especially if it explains its resignation by reiterating Mr. Harper’s belief that it would be improper for a party that has not won a plurality to attempt to govern, that will be a very important indication that the convention has changed. We would have a precedent, and we would have a statement from the actor in the precedent that he felt bound by a rule. Would there be a reason for the rule? Arguably, yes, though that’s a somewhat trickier question. The rule that the winner of a plurality of seats gets first crack at forming a government has simplicity to recommend it, and it appeals to our majoritarian intuitions. It is similar to the rule we use in our electoral system ― though ironically the opposition parties might be looking to change that. I’m not saying, mind you, that this rule would be a better one than the old one. Only that there would be some reasons to justify it.

Now, it has to be possible to say, as Mr. Coyne, prof. Macfarlane, and others do, that the political actors are simply mistaken as to what the applicable rule is, just as it must, I think, be possible to say that the Supreme Court has wrongly decided a case (constitutional or otherwise). Mr. Trudeau, for instance, is just wrong to claim that “that’s the way it’s always been, whoever commands the most seats gets the first shot at governing.” It hasn’t always been that way. But just as with a Supreme Court decision, a mistake, at least if it is repeated in the future, can generate a rule just as surely as a correct statement of the relevant norm. To twist Justice Jackson’s well-known statement somewhat, the Supreme Court ― and, in the case of conventions, the political leaders of the day ― may not be final because they are infallible, but their being final does give them a form of deemed infallibility.

Constitutional rules change. Neither the process of change nor its results are always pretty. That is true of formal constitutional amendments and of the decisions of the Supreme Court that have the same effect. It is also true of the change in constitutional conventions. And of course there is nothing improper with trying to resist or even to undo a change one does not like. But it is important to recognize the possibility of constitutional change, and not only to criticize those engaged in it as mistaken. The Canadian constitution might be undergoing a metamorphosis before our eyes ― whether that word makes us think of Richard Strauss or of Franz Kafka.

All or Nothing

I want to come back, briefly, to the crazy idea I put forward last weekend, about the Governor General starting to appoint Senators without waiting for Prime Ministerial advice if it becomes clear that such advice is not and will not be forthcoming. Actually, maybe it wasn’t such a crazy idea because, as Aniz Alani pointed out to me, it was already raised, although not advocated, by experts who testified at a Senate committee hearing regarding a bill that had been proposed ― during Stephen Harper’s previous fit of non-appointment pique ― to force the Prime Minister to appoint a Senator within six months of a vacancy arising.

My post provoked an unusual (for me) number of responses on Twitter (and elsewhere). Most of them were to the effect that my idea was not a good one, because if the Governor General thinks that the Prime Minister is acting unconstitutionally, he should simply dismiss him and appoint a different one, who will give him constitutional advice. (I am too lazy to track them down and link to them now, so you’ll have to trust me on this being the consensus, or at least the majority, view.)

My initial reaction, I confess, was surprise. I had raised this possibility in my post, but thought dismissing a Prime Minister (and his cabinet) would be a “dramatic,” an “extreme” solution to a problem which, although serious, is nothing like, say, an attempt by a ministry to cling to office despite losing Parliament’s confidence. Besides, I wonder about the practicability of this solution. If the dismissed ministry commanded a Parliamentary majority, there would likely be no majority ready to support whatever alternative the Governor General could ask to form a cabinet. The only way out would be a dissolution, following which a dismissed ministry could be re-elected (quite possibly on the strength of a populist appeal against the interference of an unelected Governor General in defence of an unelected Senate!), and we would be back to square one.

On further reflection, however, I also see the logic behind my (friendly) critics’ position. The idea is, I think, that it is so important that the Governor General always act on ministerial advice that it would be wrong for him or her to start acting autonomously even if that advice (or lack thereof) is arguably unconstitutional. The solution to the problem of unconstitutional advice is not to ignore it, but to get a different adviser. It is a powerful argument. The conventions of responsible government, which require the Governor General to follow ministerial advice, are arguably the most important rules in our constitution. To weaken them might mean going back 300 years in our constitutional development.

And as a descriptive matter, this “constitutional position” is almost certainly the generally accepted one in Canada. It explains, for instance, Governor General Michaëlle Jean’s actions during the 2008-09 prorogation crisis, when she accepted the Prime Minister’s advice to prorogue Parliament, even though it was transparently intended to stave off (successfully as it turned out) a Parliamentary vote that would have confirmed that the government had lost the confidence of the House of Commons and triggered its resignation.

Still, there is a paradox here, which makes me reluctant to accept that this constitutional position, albeit dominant, is also a normatively desirable one. At the risk of repeating myself, dismissing a ministry which enjoys the confidence of the House of Commons is a radical, spectacular step for a Governor General to take, and no viceroy in his or her right mind will embark on it without hesitation. It is also, obviously a dramatic departure from the principles of responsible government ― a bigger one, it seems to me, than ignoring that ministry’s advice on one specific point. That’s why I’m finding it strange that, in the face of unconstitutional advice a Governor General is entitled to go for the “nuclear option” of dismissal but not for a carefully circumscribed show of defiance. But this contradiction is, admittedly, more apparent than real. In reality, a Governor General will not dismiss a Ministry, except I suppose in the absolutely clearest of cases. For any constitutional transgression that does not obviously warrant dismissal, the lack of any alternative is simply the equivalent of a get-out-of-jail free card for a rogue Prime Minister, which is exactly what happened during the prorogation crisis.

So although I understand why this is the case, I am not at all sure that a rule that vice-regal interventions against a Prime Minister or cabinet who act unconstitutionally must be all-or-nothing propositions is a good thing. It seems, however, to be the generally accepted understanding of the conventions of responsible government in Canada, and I wanted to highlight the fact that my critics were right about that.