Problems with Elizabeth May’s remarks on the constitution

HuffPost Canada’s Althia Raj writes:

If the 2019 election ends up in a minority situation but the Tories have the most seats, Green Party Leader Elizabeth May thinks the Liberal government should try to form a new government with support from other parties.

In an interview with HuffPost Canada’s politics podcast ‘Follow-Up,’ May said that if the campaign results in a hung Parliament, “yes, of course” the party in power should try to convince the governor general that they can hold the confidence of the House.

May is of course right to point out that the Liberals could remain in power even if the Conservatives (or any other party, for that matter) wind up with more seats. But the details of how this works are all wrong, and the details matter.

First, here’s what May gets wrong. While reporters often talk of an incumbent prime minister “forming government” after an election, in fact the duration of a government is the duration of the prime minister’s tenure. And while reporters often talk about prime ministers “winning another term” and such, the truth is that prime ministers don’t have terms of office. Once appointed, a prime minister is prime minister until they resign or are dismissed. In the scenario May envisions, there would be no obligation to resign and no grounds for dismissal. So the prime minister’s tenure would not be interrupted. It follows that the government would continue, and thus that there would be no need to form a new government. So in this scenario, the party in power would not have to convince the governor general of anything. It’s up to the new house, not the GG, to decide whether the government has confidence.

Why does this matter? I assume May’s remarks are intended in part to assure the public that it would be constitutionally legitimate for Trudeau to try to remain in power even if his party did not have a plurality in the new House of Commons. If the public is prepared for this kind of possibility, there’s less chance of the kind of backlash that helped sink the Liberal-NDP coalition proposed after the 2008 election. So explaining how the constitution applies to this kind of situation makes it more likely that the 2019 election will result in a progressive alliance of some kind.

If this is the aim, however, it’s easy to see how May’s remarks might be counterproductive as well as strictly inaccurate. In May’s version, the GG would have a choice between allowing Trudeau to test for confidence or appointing Scheer as the new PM. This account makes it sound as though Trudeau’s ability to remain in power would be subject to the whims (or the political preferences) of the governor general. But it is widely understood that the governor general ought to be politically neutral. By making it seem like the GG has real discretion over whether the PM gets an opportunity to meet the house in a case like this, May would invite the Conservative charge that allowing Trudeau to remain in office would be a violation of the GG’s political neutrality. No doubt they would argue (as they did in 2008) that the voters, in giving the Conservatives a plurality, had rendered judgment on who ought to be in government, and that the GG had no right to overrule the will of the people. This is nonsense, of course, but it has proved to be politically effective nonsense.

So May’s explanation of how the constitution would apply to this kind of scenario seems far more likely to encourage rather than preempt efforts by the Conservatives to undermine any attempt to establish a progressive alliance after the next election. I don’t doubt that her motives are good, and I agree that it’s important for the public to be informed in advance about what’s permissible in cases like this. But efforts to inform are helpful only if they’re accurate, and this one isn’t.

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