5 December 2008

O' Canada! What happened to Constitutional Law 101?

> GlobeAndMail: "Parliament shut down till Jan. 26" > CBC: "GG agrees to suspend Parliament until January" > Kiwiblog: "The crisis in Canada" > Pundit: "Canada crashes towards crisis as PM panics


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...


Unknown said...

The Tories might survive but I doubt Harper will.

The thing that scares me is that a large number of Canadians seem to have no idea how their own political system works, and they think that a coalition is a bigger affront to democracy than a minority government that suspends Parliament in order to govern witout the confidence of the house. This really is breathtakingly ballsy, and unconstitutional, from Harper.

Graeme Edgeler said...

Eddie, while I agree with Dean that we've pretty much got in right in New Zealand, the coalition that people were explicitly promised prior to an election was off the table is at least somewhat of an affront to democracy.

Dean Knight said...

It might be a bold argument to say that a party was constitutionally bound to give effect to pre-election promises? Imagine the grief for the GG in adjudicating on whether arrangements are consistent with such positions. And if that was accepted as a proposition, could it also be argued that could apply to the reserve power to refuse to assent to legislation on similar grounds?

Brett Hagardt said...

Thanks for the fresh non-Canadian outlook Dean. Not having taken "Constitutional Law 101" (or any law class during my science degree), while continuing to hear contradictory "expert" opinion from multiple home-grown sources, has left me bewildered. I look forward to your next posting that will help me to understand my own country's constitutional developments!

Graeme Edgeler said...

It might be a bold argument to say that a party was constitutionally bound to give effect to pre-election promises?

Not constitutionally ... democratically.

Dean Knight said...


You mean politically?

Of course, that wouldn't really impact on the GG's constitutional obligations then though?

Graeme Edgeler said...

If you like. I was responding to Eddie's comment that:

a large number of Canadians seem to have no idea how their own political system works, and they think that a coalition is a bigger affront to democracy than a minority government that suspends Parliament in order to govern witout the confidence of the house.

That large number of Canadians may think that a coalition is an affront to democracy because their democratic tradition included what you termed "a unique Canadian custom", and that they knew that if the Liberals didn't get the votes they wouldn't govern. Particularly because they'd promised to not form a coalition with the Bloc.

Canadians may feel they were choosing between the Conservatives and the Liberals-NDP, and they may figure which one they chose.

Anonymous said...

Graeme may have a point here - in Canada, "orthodox" Westminster principles seem to have been overlain by a cultural expectation that (1) only one party can be in Government at once and (2) this party should be the biggest (even if it is a minority). So whilst we con law scholars insist that there's nothing amiss with a parliamentary majority displacing a minority government, this simply fails to gel with how people think the system ought to work. Where theory and practice diverge, practice usually wins out.

The real problem Canada has, I think, is that it at present combines the worst feature of FPP voting (disproportionate representation of political parties) without providing the best (majority government, with the ability to "throw the bums out"). One can trace this to the country's hyper-regionalism (the Tories dominance of the West, the BQ in Quebec, the Liberals holding on to Toronto and Ontario), and the fact that FPP discriminates against parties with significant national reach but insufficient support in any one riding (the Greens).

The interesting question is whether the electorate gets so fed up with divided, minority government that they finally give the Tories a majority (although Harper's demonisation of "separatists" will make this even more difficult, given the harm it has done his party in Quebec) or if this gives a push to electoral reform. After all, if you've already got minority govt and talk of coalitions, why not bite the bullet and re-orient your politics completely (as NZ has)?

Anonymous said...

Surely the most fascinating aspect what is happening in Canada is the reason for this constitutional turmoil.

Why would Canadian politicians behave in a manner that upsets the ordinary Canadian citizen’s expectation (as opposed to legal scholar expectation) that the biggest party albeit a minority of the House of Commons governs. From a distance it seems clear that a Government commanding less than a majority of the Parliament was always vulnerable. But not to Canadians, so why the upheaval?

The Accord between the Liberals and the NDP cites the Harper Government’s response to the credit crisis.

But we know this constitutional spasm is really about the taxpayer support for political parties.

Few boosters for direct state funding of political parties here (in addition to the $3.6million broadcasting allocation) acknowledge the risk this can have a corrupting effect on our political system. To those boosters voluntary contributions to political parties are always potentially corrupting, of course no actual ‘cash for policy’ evidence is ever cited. Direct state funding is thus the ultimate political prophylactic the use of which (except for forcing taxpayers to contribute to political causes they don’t otherwise support) has no downside.

But Canada oh Canada proves that state funding can have more than a potential corrupting effect; a threat to the state funding regime can result in politicians breaking pre election commitments that rule out governing with other parties; commitments to the governing minority party to provide it confidence and supply and compel the neutral representative of the Head of State into the role of active political participant by making a constitutionally debatable call to allow a PM to stagger on without the confidence of the House or require him to test it on the basis of clear evidence he has probably lost that confidence.

It must also indicate how reliant Canadian political parties are on these handouts; constitutional law 101 (Canadian style) would not be happening if there was not a high level of dependence on this funding. Politicians are extremely efficient and rational in their own interests; they would not upset the constitutional apple cart without good reason.

Anonymous said...


It's not quite as simple a case as you make out. Because of Canada's very, very low limits on private donations, without state funding the opposition would (effectively) have no money. The Conservative Party (due to its large direct mail fundraising machine) would still have funding. So what Harper was trying to do was kneecap the opposition, using the "economic crisis" as cover. This breached a cross-party accord on electoral funding reached back in 2005.

Point is: it's not state funding per se that "corrupts" the political process. It is trying to skew election funding issues in a partisan manner, without broad, cross-party by-in, that leads to this sort of political fallout. A lesson I think we've learnt here in NZ, via the Electoral Finance Act.

Anonymous said...

After all, if you've already got minority govt and talk of coalitions, why not bite the bullet and re-orient your politics completely (as NZ has)?

Andrew - Because no one in Canada is willing to actually explain proportional representation to the populace. I was living in Toronto when Ontario had a referendum on changing to MMP, and the explanations of how it worked were scandalously bad.

Only one major party (the NDP) came out in favour of it, and then only tepidly. It was felt that the citizen's jury which recommended the change should not politicise itself by openly advocating for change. The news media, for some reason, was virulently opposed to moving away from FPP, to the extent of outright lying about how the system worked in NZ. The vast majority of people just thought "more bums in Queen's Park and we get less local representation." The debate was seriously at that level.

Anonymous said...


Yes - I was involved with an (abortive) attempt to set up a citizens' forum on election funding here in NZ, and we studied the Ontario and BC examples closely. A lost opportunity, it seems.

Anonymous said...


You seem to concede that highly regulating voluntary contributions to political parties results in a loss of contributions. In Canada this (according to you) has resulted in political parties being reliant on involuntary (or forced) contributions by the taxpayer to political parties that they otherwise don’t support financially.

How is this not corrupting?

Clearly the Liberals, NDP and the Bloc are not able to maintain sufficient levels of popular support to get the donations in to sustain their parties. When Harper attempts to change this system, they put Canada into a constitutional spasm.

I suspect that the actions of the politicians are directly proportionate to the importance of the funding to sustaining their parties. This is the most logical explanation for what is happening there.

Most legal analysis of money on politics is flawed – it places far too much emphasis on the role of money. In most of the cases dealing with electoral law to much is conceded to the notion that money equals votes.

Most academic analysis over exaggerates risks of corruption, it underplays the costs of regulation in terms of compliance and loss of voluntary contributions. Direct state funding is all upside. The notion of equality in elections is also overblown – voters don’t ensure equality they reward parties differently at each election and some shift around between parties. Nor are all parties equal and nor are their policy prescriptions equally valid. The flow of political ideas between parties is also more fluid over time.

Yes I agree that the political management around the EFA was a disaster – but note the Act itself was a product of the ‘progressive’ elements of politics. Electoral law should be left to politicians and parliamentary processes rather than ad hoc arrangements, because at least the biases of politicians are explicit. We know they will act in self interest.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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