WWEFD: What Would Eugene Forsey Do?
As I write this, final seat totals for the incoming legislative assembly may be only hours away. To while away the time, I’d like to help clear up some confusion regarding the role of the lieutenant governor in the event that a hung parliament is confirmed.
The CBC and the Globe and Mail have both reported that if Clark’s government is defeated straight away on the throne speech, Clark may advise the lieutenant governor, Judith Guichon, to dissolve the Legislature and call a new election. In that case, Guichon would have to decide whether to grant Clark’s request or instead call on John Horgan to form a government. The Globe quotes University of Victoria political scientist Ron Cheffins directly as saying “both options are legitimate.”
It is important here to distinguish between two different senses of the term “legitimate”. In the first sense, legitimate simply means prescribed by or permissible according to the law. In the second sense, legitimate means being an acceptable or justified use of power. In my view, both choices only have equal legitimacy in the first sense; in the second sense, Guichon cannot legitimately accept advice for dissolution if Clark is promptly defeated when the new legislature meets. And for reasons that should become clear shortly, only the second kind of legitimacy is relevant to the question Cheffins is trying to answer.
As an aside, don’t just take my word for it regarding the accuracy of Cheffins’s claim. I’m a philosophy undergrad, not any kind of expert on the Canadian constitution. But these issues are not arcane; we covered all this stuff pretty thoroughly in a 100-level course on Canadian politics I took at Capilano. And if you’d rather hear from the experts, here’s a sampling of the response from a number of experts on Twitter — four political scientists and a former clerk of the House of Commons.
(These are not cherry-picked examples; among the political scientists, constitutional lawyers and assorted parliamentary democracy geeks I follow, I didn’t find a single supporter of Cheffins’s view.)
But one way I can shed some additional light on my own, I think, is to explain why Cheffins is mistaken about what convention allows.
As I discussed in another recent post, the constitution consists of both laws and conventions. Conventions are non-legal rules that modify and restrict the application of the law. According to law, viceregal officials can refuse royal assent to any bill for any reason, no matter how frivolous, dissolve parliaments and call elections at will, dismiss first ministers for smelling bad or sounding funny, and appoint new ones from among the winners of a sack race. In other words, according to law, Canada is a cartoon dictatorship. The constitution’s democratic credentials rest on the way the rules of constitutional law interact with the conventions of responsible government.
Responsible government refers to a system in which the government (in this context, the executive) is drawn from and responsible to the legislature. The conventions of responsible government are the non-legal rules that dictate that the legal powers of the relevant constitutional actors are exercised so as to uphold this system. The fundamental purpose behind the system of responsible government and its constitutive conventions, in turn, is the realization of democratic government.
The guidance provided by the conventions of responsible government is normally so clear that their operation is almost invisible. For example, according to convention, the government must maintain the confidence of the legislature in order to continue in office while exercising its full range of powers. Continuing confidence is expressed by votes approving the throne speech that lays out the government’s agenda at the beginning of each parliamentary session, and supply bills authorizing the government to draw on the Consolidated Revenue Fund (the formal name for the government’s giant money bin). Loss of confidence may be expressed votes against the throne speech or supply bills, or votes approving motion of non-confidence. Where a bicameral legislature exists (e.g. in Canada’s national parliament), convention holds that only the lower house (usually the only elected chamber, and always the chamber that is most directly accountable to the public) has the power to express or withhold confidence in the government — a practical example of how responsible government is ultimately justified by reference to the goal of democratic rule. When the governing party or coalition has an overall majority, observance of these conventions may seem like an empty formality, but the truth is that they are always in operation and always binding. When the leader of a majority government advises dissolution for a snap election and the viceroy consistently complies, it might look as though first ministers are entitled to a viceroy’s automatic compliance. They are not. It’s simply the case that first ministers and viceroys are normally so clear on what the relevant conventions require that first ministers tend not to advise dissolution except when convention clearly permits the viceroy to grant it.
There is a sense, then, that a hung parliament gives a viceroy no special role at all — they perform the same functions and follow the same conventions that they do when one party has an overall majority. We just tend to notice the viceroy’s role a lot more because the circumstances in which they perform their role are more politically charged, and lead to more reasonable disagreement about what the relevant conventions actually require. The guiding principles, however, remain the same. The lieutenant governor must protect the system of responsible government in a way that respects the underlying value of democratic rule.
When a parliament is dissolved, the government remains in power continuously (although its members cease to hold any parliamentary office, as there is no longer any parliament in which there are offices to be held). But even when there is no legislature to which the government can be held responsible during the election period, conventions of responsible government still guide the relevant actors. The government continues to hold all of its normal legal powers, but it is bound to exercise those powers within the limits of the caretaker convention.
The Privy Council Office’s official guidance summarizes the caretaker convention as follows:
[The] caretaker period begins when the Government has lost a vote of non-confidence or Parliament has been dissolved. It ends when a new government is sworn in, or when an election result returning an incumbent government is clear.
In short, during an election, a government should restrict itself – in matters of policy, expenditure and appointments – to activity that is:(a) routine, or
(b) non-controversial, or
(c) urgent and in the public interest, or
(d) reversible by a new government without undue cost or disruption, or
(e) agreed to by opposition parties (in those cases where consultation is appropriate.
In determining what activity is necessary for continued good government, the Government must inevitably exercise judgement, weighing the need for action and potential public reaction, given the absence of a confidence chamber and the possibility that a different government could be elected.
A government operating under the caretaker convention is running on legitimacy borrowed from the previous parliament, and in BC, neither of the conditions that end the caretaker period has been fulfilled. There is no new government, and it is uncertain whether the election result will give Clark’s government enough supporters to command the confidence of the new legislature. If the final count confirms a hung parliament, this may be uncertain for some time — possibly until the moment Clark chooses to test it in a new legislative session. But as soon as the final count is complete, we will know for certain who has attracted enough supporters be sworn into office as a Member of the Legislative Assembly. These individuals can each claim a democratic mandate granted directly by the public to go to Victoria and decide whether the government deserves a vote of confidence.
This is why our conventions of responsible government, ultimately justified by reference to democratic values, do not permit Judith Guichon to dissolve the Legislature if the Clark government is immediately defeated on the throne speech, or defeated shortly thereafter on another matter of confidence (assuming that the possibility of an alternative government has not been ruled out by the leader of the opposition). The incoming legislature has a fresh democratic mandate directly from the public; the premier has only a provisional and indirect mandate from a legislature that has expired. If the viceroy were permitted to dissolve the legislature under these circumstances, a government could continue in office indefinitely no matter how disastrous its performance at the polls. Even if the government party were completely wiped out, the premier could send in the lieutenant governor with a throne speech, accept defeat in the resulting vote, and then advise another dissolution. In other words, if convention permitted the lieutenant governor to grant a dissolution on request, responsible government would not necessarily be democratic government; the lines of responsibility would be completely reversed, so as to make the legislature (and, by extension, the voting public) responsible to the government. Because democratic government is the aim of responsible government, it follows that convention cannot allow the lieutenant governor to grant a dissolution on request.
Note on terminology: BC has a parliamentary system of government, and if you look at the official records, you’ll see that the history of the Legislature in BC is divided into numbered Parliaments, but our parliament is officially called the Legislature. However, the term “legislature”, when uncapitalized, usually refers only to the legislative chamber (or chambers), which in BC is called the Legislative Assembly. Strictly speaking, the Legislature (when capitalized) refers to the parliamentary body as a whole, i.e. the Legislative Assembly and the lieutenant governor. What a mess! I’ve tried to make it clear from context when I’m referring to parliaments in general, the parliament of BC (i.e. the Legislature), BC’s elected house of parliament (the Legislative Assembly), etc., but I don’t know if I’ve done a good job. Please don’t hesitate to ask if you’re confused about anything.