Our friends in Canada are having a bit of a constitutional skirmish.
Following the recent election, the 3rd in 5 years, the tenure of the Tory minority government was fragile. For various reasons, the opposition parties who had supported the government on confidence (based on a unique Canadian custom), withdrew their support. See the other articles for the political background.
But. And this is the interesting thing. Today, matters come to a head. The Governor-General - acting on the advice of the Prime Minister - prorogued (temporarily suspended) Parliament until late January, thereby avoiding a formal no-confidence vote set for Monday. Based on the present numbers and state of play, this was a vote the Government would have inevitably lost. We know that because the opposition parties had jointly written to the Governor-General advising her that the Government no longer had the command of the House and intimating that the opposition parties were capable of forming a coalition that would secure the confidence of the House.
A rudimentary Constitutional Law 101 suggests the decision to prorgue is dodgy:
1. Her Majesty's responsible advisers are only entitled to tender advice to her as long as they command the confidence of the House. Confidence is the "life-blood" of any government.
2. If a Prime Minister does not have the confidence of the House they are obliged to resign.* If they do not honour their constitutional obligation to resign, the Governor-General is entitled to dismiss them. (*Any resignation is "contingent and deferred", in that the Prime Minister continues in the role in a caretaker capacity until elections or confidence is otherwise restored.)
3. If a Prime Minister does not have confidence, the Governor-General must exercise his or her reserve powers to restore constitutionality, consistent with the democratic imperative. This can be achieved in two ways: (a) appointing an alternative Prime Minister who commands the confidence of the House; or (b) dissolving Parliament for a fresh election.
4. The request to prorogue Parliament appears to be tendered in circumstances where the Prime Minister does not command the confidence of the House. Therefore the Governor-General is not required, and indeed is obliged not to, follow that advice.
The only wriggle-room seems to be about the crystallisation of the lost of confidence. On the one hand, the opposition parties have demonstrated in a manner consistent with the principles of government formation that the incumbent does not command the confidence of the House. They have publicly advised the Governor-General that they have the necessary numbers to command the confidence of the House. On the other hand, any lack of confidence has not yet crystallised through the formal Parliamentary process for determining no-confidence. That is, the confidence vote has not yet been lost. The loss of this vote would be determinative of a loss of confidence but this has not yet taken place.
My sense on this point - and consistent with discussions of other local folk with expertise in this area - is that if this scenario arose in the New Zealand context, it is probable that the formal advice to the Governor-General from the Opposition parties about the loss of confidence would be sufficient to trigger the obligation to resign - that is, a lost vote of confidence would not in itself be required.
Of course, it's not always possible to translate these principles directly to other jurisdictions with slightly different constitutional and political contexts and mentalities. I suspect our more intense familiarity with coalition governments and therefore our heightened understanding of the role of the Governor-General means a clear, more orthodox path might be followed here. I was struck by the extremely equivocal and contradictory advice being tendered by the various constitutional experts on the news items in Canada about the scenario.
Anyways, a skirmish worth following - I suspect the parliamentary time out might not prove enough to save the Tory government. But we'll see what happens in late January...