With reports abound that a coalition government may be upon us, the inevitable confusion about government formation has begun.
For a bunch of practical and political reasons, the coalition is not going to happen. (Nor should it—but I will not belabour that here.)
This article sets out to explain how constitutional convention dictates that if a no-confidence motion were to succeed in the House of Assembly, we would be heading to an election, not a coalition government.
This is chiefly because too much time has passed since the most recent election. While reasonable people could disagree on when exactly the cut-off line is, it would be shocking if a Lieutenant Governor simply handed over government to a coalition nine months after the last election.
Governments must hold the confidence of the legislature. When the legislature votes no confidence, then the Prime Minister or Premier (referred to hereafter as “first minister” where context dictates) provide advice to the Governor General (federally)/Lieutenant Governor (provincially), usually to dissolve the legislature and issue writs of election.
Does a Governor General always accept the advice of the first minister? 99% of the time: yes.
In fact, constitutional convention dictates that the Lieutenant Governor should accept the advice of the first minister. Imagine the opposite scenario: should an unelected figurehead be able to overrule a duly-elected first minister?
The default position is no. But as you will see, where a government does not have confidence of the legislature in the immediate aftermath of an election, then some alternative combination of elected members (other than the party who “won” the election) may get a chance to govern.
British Columbia, 2017
The aftermath of the 2017 provincial election in BC is a rare exception to the default rule. The Liberals, led by Christy Clark, “won” the election with 43 seats, with the NDP finishing with 41 seats and the Greens with three seats. The Liberals went to their legislature with the throne speech, typically the first order of business after an election, which is a “confidence vote”: a vote that decides whether a government lives or dies. The NDP and Greens combined to vote that the just-elected Liberal Clark government did not hold the confidence of the legislature.
This is where things get tricky. Usually, when a government loses the confidence of the legislature, it means there will be an election. But in BC, they literally just had an election, so the Lieutenant Governor rejected Clark’s advice to dissolve parliament and instead allowed the NDP and Greens to govern. As you will see, this is exceedingly rare and likely only possible in the immediate aftermath of an election.
The King-Byng Affair, 1926
Things got really messy in 1926 with the King-Byng Affair. Over time it has become the Canadian rule of thumb for what a Governor General ought not to do. This is because chaos erupted, and the Crown role is generally to avoid causing chaos. (After all: “peace, order, and good government.”)
Stability is the name of the game. So even if a party loses an election, they technically have the ability to go back to the legislature and test whether or not it has confidence.
Usually when the election result is clear, the outgoing first minister resigns or concedes government. But if the party who “won” the election with the most seats falls short of an outright majority, the incumbent first minister gets the first chance to try maintaining the confidence of the legislature. This is how Liberal Prime Minister Mackenzie King held onto power after “losing” the 1925 election.
In the October 1925 election, the Conservative Party led by Arthur Meighen won 15 more seats than the incumbent King-led Liberals. In third place came the “Progressive Party” with 28 seats. The third place Progressive Party actually decided to join forces with the King-led Liberals to prevent the Conservatives from forming government. Thus, the King-led government lived another day despite their election “loss”.
If you think that is weird, it gets better.
King’s coalition did not last long. Within a few months, one of the Liberal ministers was embroiled in a bribery scandal and the tenuous Liberal/Progressive Party alliance had collapsed. By June 1926, Prime Minister King was asking Governor General Julian Byng to dissolve parliament and call a new election.
Despite being nearly eight months out from the previous election, Byng refused King and instead offered Meighen and the Conservatives a chance to govern rather than call an election. Meighen’s government then skirted an old rule that new ministers must resign and run in a by-election by appointing “ministers without portfolio,” which caused a whole other scandal. King criticized it vociferously as well as railed against the Governor General for allowing it to happen.
This led to Meighen going to the Governor General seeking dissolution of the legislature and an election, which Governor General Byng granted. King went on to win a minority government and was Prime Minister for almost another four years before losing to RB Bennett in 1930. (He would then return again from 1935-1948, becoming Canada’s longest-serving prime minister.)
The King-Byng Affair was months of political chaos that ultimately led to constitutional crisis. The role of the Governor General (i.e. our unelected figurehead) became a matter of public debate. The controversy partly inspired the Imperial Conference of 1926, paving the way for the 1931 Statute of Westminster: full legal freedom for the Canadian parliament to determine its own laws, with the notable exception of altering the British North America Act, 1867—its constitution. (That would come later, in 1982.)
What are Conventions and Why Do We Follow Them?
You might be surprised to know that the term “Prime Minister” does not appear in our constitution at all (except in passing in the Constitution Act, 1982). If you were to rely solely on the text of the constitution, you would think the Governor General/Lieutenant Governor has all of the power.
Formally, that’s true. Bills passed by the legislature do not become law until the Governor General/Lieutenant Governor signs them. But it is “convention” that the Governor General always do so. It is also convention that the Governor General take the advice of the first minister on dissolution and writ of election.
But what is the convention, anyway? Why do we do things this way?
As stated by the late, great, Professor Peter Hogg—preeminent scholar of Canadian Constitutional Law—conventions are the unwritten rules of our constitution that are not enforced by the courts. So if a Governor General decided not to give royal assent to a bill, the courts would not be able to provide a remedy. The result would be a political crisis.
In theory, these crises should never arise because the precedents provide guidance. Conventions create an ethical imperative for the formal power to act in a certain way.
Philippe Lagassé provides some helpful guidance in his article, “The Crown and Government Formation: Conventions, Practices, Customs, and Norms.” For a rule to be a constitutional convention, according to the Supreme Court of Canada, it must: (1) have precedents; (2) the actors must believe they were bound by the rule; and (3), the rule must exist for a reason.
Lagassé says the following rule is considered supreme, though as described above there are nuances: The first minister should hold the confidence of the elected house or be aiming to secure confidence.
He goes on to say the following rule is a tradition, something less than a convention: The Crown should not refuse a request to dissolve the legislature if more than six months has passed since an election. Lagassé said this timeframe is supported by precedent—such as the dissolution of Parliament under the short-lived Joe Clark government in 1979-80—and is “not the subject of significant controversy.”
I would argue the six month timeline may by now have crystallized into convention—or at the very least, a strong custom that a Governor General will likely never depart from. In this regard, I will refer to Hogg’s constitutional law text, Constitutional Law of Canada :
“Nevertheless, the King-Byng precedent surely carries important lessons for Governor Generals today. The main lesson is that, absent extraordinary circumstances, a request for dissolution from a Prime Minister should be granted…. If the Governor General does commission the leader of the opposition as Prime Minster (as Lord Byng did) and if the new government falls soon after the old one fell (as Mr. Meighen’s did), then the Governor General’s initial refusal of the dissolution created a political crisis in which the legitimacy and neutrality of the Governor General’s decisions inevitably become the topic of partisan debate (as happened in 1926). The crisis would not arise if the first request for dissolution had been granted. That is why, apart from the lonely King-Byng precedent, every Canadian Governor General has always granted a request by a Prime Minister for a dissolution… From the Governor General’s point of view, any impulse to say “no” to a request for dissolution is normally overwhelmed by the difficulties that a “no” answer would create.” (Emphasis added.)
If any Governor General/Lieutenant Governor were faced with a situation whereby rejecting the first minister’s advice on dissolution would even be considered, you can bet your bottom dollar whoever is providing the expert advice will include the above passage from Professor Hogg.
Returning to Lagassé’s article, he summed up government formation by emphasizing the circumscribed (i.e. limited) role of the Crown:
“Arguably, what is most notable about these conventions is how they circumscribe the Crown’s role. Rather than making the Crown a prominent part of the government formation process, they ensure that vice-regal representatives largely act as guardians of stable and legitimate government.“ (Emphasis added.)
In other words: wherever possible, the discretion of the Governor General or Lieutenant Governor is limited. Ideally, their discretion is non-existent. Otherwise, their discretion will be immediately challenged on legitimacy grounds. To paraphrase Lagassé: the Governor General should always err on the side of stability. This is consistent with the Supreme Court of Canada’s position that democracy is an underlying principle of our constitution.
The King-Byng Affair underlines how chaos erupts when an unelected Governor General uses their discretion—no matter how sound their reasoning may be. Eight months had passed between King forming a minority government and his request for dissolution in June 1926.
Its precedent strongly holds that a Governor General should never do what Lord Byng had done again. This is reasonable; the calculus of the electorate can fundamentally change over that time. This is a stark contrast from the 2017 BC example, where there was no reason to believe the electorate would have changed its mind in the time between the election and the throne speech.
The 2008 Coalition Crisis
All this is reinforced by Governor General Michaëlle Jean’s decision in 2008 to accept the advice of Prime Minister Stephen Harper to prorogue Parliament—even though the majority of the House of Commons were poised to kick him to the curb with a vote of no-confidence. While the precise nature of the decision is different (the House of Commons did not get a chance to vote no-confidence), the reasoning is similar.
If Lord Byng had been in Jean’s shoes, I am not sure he would have taken Harper’s advice to prorogue. After all, he seemed more concerned with the majority will in the House of Commons than the usual conventional requirement that he take the Prime Minister’s advice. But by 2008, the precedents demonstrated that the Crown’s role ought to be circumscribed. Legitimacy and stability—not logic or reason—are the orders of the day. Leave the logic to the electorate.
Jean’s 2008 precedent demonstrates that even where there appears to be a compelling democratic argument in favour of rejecting the Prime Minister’s advice, it is not the place of a Governor General to do so. This is all the more striking when you consider the “prorogation crisis” or “coalition crisis” occurred just six weeks after the most recent election.
While Jean merely gave parliament a “time-out” rather than handing over the government without an election, she put herself in a difficult spot. What would she have done if after the time-out, Harper came looking for an election? That decision would have set a precedent providing for greater clarity on the timeline around the Governor General’s discretion to reject the Prime Minister’s advice to dissolve parliament.
So as far as Canada is concerned, we are left with the Joe Clark precedent. In that case, the Governor General followed the first minister’s advice and dissolved parliament six months after his minority election victory when his budget was voted down in December 1979. Lord Byng probably would not have done that, either.
Next, consider the Lieutenant Governor’s rejection of Christy Clark’s request for dissolution immediately after the 2017 election. The precedents support that the Governor General’s or Lieutenant Governor’s discretion only exists for a limited amount of time. This is likely up to six months per the Clark precedent.
All of this boils down to a rule that the Governor General should always accept the first minister’s advice, except when and only when the choice to reject is obvious—as it was in the British Columbia context where there had just been an election.
Once six months have passed, then the 1980 precedent coupled with the general direction of circumscribing the Crown’s role dictates the Governor General should accept advice to dissolve parliament. Any longer, and you are repeating Byng: a scandalous decision that has not been repeated since in Canada.
A Vote of No Confidence in the House of Assembly Means an Election—Not a Coalition Government
Some Newfoundland and Labrador media reports suggested that if the Lieutenant Governor is not convinced the Liberals can maintain the confidence of the House, the chance then automatically goes to the next biggest party. This is plainly wrong. Somewhat more alarming is that some members of the House of Assembly apparently thought so, too.
First of all, nothing happens until the first minister goes to the Lieutenant Governor with advice. Any discretion on the part of the Crown is not triggered until this occurs. And at this point, the default position of the Crown would be to accept the first minister’s advice to dissolve the legislature and go to an election.
According to Lagassé, it is a custom that the Crown should not refuse a request to dissolve the legislature if more than six months has passed since an election. On that basis alone, it would be extraordinary for the Lieutenant Governor to reject what would certainly be the Premier’s advice to dissolve the House.
My own view is that if a Lieutenant-Governor were to reject any Premier’s advice and allow another party or coalition a chance to govern—some nine months after the most recent election, even longer than in the infamous Byng decision—it would be an extraordinary and inappropriate exercise of Crown discretion.
But even if the Lieutenant Governor took this major leap and considered the matter within their discretion, it would lead to the same result. The prospect of the coalition providing stability is outlandish bordering on comedy.
The irony is the people who were trying to engineer this political fiasco were likely trying to avoid such an election. Those people would be well advised to think again. While messy, this is an example where constitutional convention serves its purpose in supporting democracy: the key underlying principle of our constitution.
John Samms is a lawyer practicing at Stewart McKelvey in St. John’s and formerly worked in the Premier’s Office. He also teaches “Law, Governance and Public Policy” as well as “Constitutional Law” at the Department of Political Science at Memorial University. He is presently on the Liberal Party Leadership Committee.
Photo by Zach Bonnell.
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