PRELIMINARY RESULTS
Electoral Outcomes, Incumbency, and Parliamentary Supremacy:
Assessing the Role of the Governor General in the Formation of Government in Canada
J. Wheeldon
Norwich University
Introduction:
Elections that produce legislatures in which no party holds the majority of seats are a feature of Canadian political life. In such circumstances, the Governor-General’s role in commissioning a Prime Minister is technically the exercise of a reserve power, defined as an act performed by the Governor General without the need for the advice of a responsible Minister (Twomey, 2010: 1). While an outgoing Prime Minister might “advise” the Governor-General on whom to appoint as his or her successor, such advice is not considered formally binding constitutional advice.
The Governor General’s act of commissioning a Prime Minister is not understood as an exercise of a reserve power because this function is very closely bound by convention. In nearly all cases, the Governor General has no discretion or genuine choice. Convention requires that the Governor General commission as Prime Minister the person who holds, or is expected to be able to hold the confidence of the House of Commons to lead the government. Normally there will be no problem in identifying this person, as he or she will be the leader of the political party that holds a majority of seats on the floor of the newly elected House. Matters become difficult, however, where no party wins a majority of seats in the House of Commons. In such circumstances, known as a “hung Parliament,” the role of the Governor General becomes more controversial and closer scrutiny of the relevant conventions is required.
Today, I present preliminary results based on a survey of 65 Canadian political scientists and constitutional scholars on the role of the Governor General in Canada in the formation of government. I argue there are three themes worthy of more detailed consideration and elaboration. These are organized as: Electoral Outcomes, Incumbency, and Parliamentary Supremacy. Confusion among Canadians about how to understand the interactions between these sometimes competing notions is not surprising given the lack of consensus among those who have studied, published, and advised political leaders on these issues. As Peter Russell (2009) has noted, one of the challenges is that Canada has operated on the good faith assumption that political actors will act honorably and with integrity to put the country ahead of any one political party. This creates problems when political actors refuse to be bound by tradition and convention or are operating under different assumptions about what elections mean and the role of the Crown in Canada.
Elections, Incumbency, and Parliamentary Supremacy
Understanding Elections
As a general principle, electoral outcomes in a democracy represent the will of the electorate and guide all political actors. In recent years traditional definitions about what elections represent in Canada have been contested. While on Election Day Canadians vote in more than 300 local elections to elect a Member of Parliament to represent their riding in the House of Commons, scholars have shown how media reporting practices (Cyr, 2013) undermine constitutional rules and principles by building the expectation that whoever wins the most seats is “supposed” to govern. For example, in the aftermath of the 2008 parliamentary crisis, advisers to the Prime Minister and well known columnists argued coalitions were themselves illegitimate unless put forward during an election campaign (Flanagan, 2009; Simpson, 2009). The worry is that these views have furthered what Eugene Forsey (1951) described as the Americanization of Canadian political culture, and the rise of populist notions of democracy (Smith, 2009).
How do Canadian scholars understand elections in Canada? There are at least 3 views:
· Elections serve to elect the House of Commons from which a government and prime minister are selected (Forsey, 2010).
· Through elections Canadians directly elect a government that gains a mandate through an election campaign (Flanagan, 2009);
· While in principle Canadians elect a Parliament, in practice elections are best seen as a means to select a government, based on which party wins the majority of seats.
Another issue relates to what obligations arise from an electoral loss in which another party wins a majority of seats in Parliament. Twomey (2010) points to several legal decisions and practical actions in the Commonwealth to argue that after an election, once the result becomes clear, an incumbent Prime Minister must, by convention, resign if another party wins a majority of seats. In Canada, Forsey (2010) suggests the same. Given emergent suggestions about the power of an incumbent Prime Minister, this raises the issue of what the Governor General ought to do with advice tendered by an incumbent Prime Minister who wants to test their support in the House even when another party had won a majority of seats. There are at least 2 views.
· There is no requirement that an incumbent PM resign in such circumstances and Governor General should accede to advice of a PM to promptly meet the newly elected House (Forsey, 2010);
· There is a requirement that an incumbent PM resign in such circumstances and the Governor General should not accede to advice, and instead commission the leader of the party that won a majority of seats (Twomey, 2010).
Incumbency
Incumbency in parliamentary democracies is powerful. Twomey (2010) argues that by convention the benefits of incumbency include that if after an election no one clearly holds the confidence of a majority in the House, the incumbent Prime Minister (as the last person to hold the confidence of the House) has the right to remain in office and test his or her support on the floor of the House. Peter Russell (2009) has recognized this convention in Canada. This right exists when an Opposition party has reached an agreement with smaller parties that would allow it to govern with majority support in the House or even when the incumbent has no hope of success in a vote of confidence in the House once Parliament is recalled. While it is generally regarded as appropriate for the incumbent Prime Minister to resign in these circumstances, the failure to do so in such circumstances has been described as “unsporting,” but not unconstitutional (Bogdanor, 1995: 151).
One issue is whether the GG is bound by PM advice to allow them to meet the House when the PM’s party won most seats (but not majority) and wishes to test support in the House when Opposition parties, comprising a majority in the newly elected House, make public statements indicating they will govern based on a coalition government / formal legislative alliance announced during an election campaign.
· GG is bound by advice and should allow PM to test confidence in the House;
· GG is not bound to act upon PM’s advice in these circumstances;
A related issue is whether the GG is bound by PM advice to recall the House when opposition wins the most seats (not majority) and the leader of leading party presents a plan to govern through a coalition government / formal legislative alliance, which was not announced during election campaign.
· GG is bound by advice and should allow PM to test confidence in the House;
· GG is not bound to act upon PM’s advice in these circumstances;
One way to test the limits of incumbency is to consider a thought experiment suggested by Bogdanor (1983: 93). Imagine that following a federal election a party that was inopposition wins a majorityof seats. The incumbent PM advises the GG that he will resign but that his successor, as interim leader of his party, will take over and test his support in the House. There are at least 2 options here:
· GG is bound by advice and should allow PM’s successor to test confidence in the House;
· GG is not bound to act upon PM’s advice in these circumstances and may commission another to test confidence in the House;
Parliamentary Supremacy
A final issue is how to understand where the power to form a government resides. Following the confusion that emerged in 2008, Andrew Heard argues constitutional scholars fall into clear categories (2012: 88-90). On one view the Governor General has very limited discretion to refuse Cabinet Advice even when the constitutional role of the House to hold the government to account is undermined (Brun, 2008). Another view the Governor General has a broad discretionary role to assess the formation, popularity, and political viability of any alternative government (Hogg, 2010).
One way to examine this question is to consider how a Governor General should resolve constitutional debates in the rare instances in which they are called upon to do so. Based on previous research (Wheeldon, 2013), 4 schools of thought have been defined. Each have a specific view of how the Governor General ought to proceed. These include:
· In ways that defer to the government unless it has formally lost confidence (Brun, 2008);
· In ways that consider fundamental principles of parliamentary democracy (Russell, 2009);
· In ways that weigh popular vote in last election and public opinion of Canadians (Hogg, 2010);
· In ways that ensure Parliament can uphold its constitutional role even if that means refusing to accept prime ministerial advice (Heard, 2009);
Another way to explore this issue is to examine in what sorts of circumstances a Governor General could or perhaps should refuse the advice of an incumbent Prime Minister. For example:
What should a GG do when a defeated PM wants successor to test support in House?
What should a GG do when a PM has lost confidence vote in House but refuses to resign?
Methods: Survey, Sample, and ACH
Survey
· The short online survey was based on various scenarios and open and closed ended questions;
· Reviewed by constitutional scholars, former parliamentary clerks, and advisers to Governors General;
· Approved by IRB at Norwich University January 2014.
Sample
· Political scientists and constitutional scholars who had published relevant articles in CPSA, CPSR, or presented relevant papers at CPSA in the last 5 years (120 with verifiable email addresses identified);
· 65 subject matter experts responded between February and April 2014;
Analysis of Competing Hypotheses
· Analysis tool used to identify top 2 views on any question/issue;
· Can be used to combine quantitative and qualitative data;
· Focus is less on providing a comprehensive picture of ALL views, but instead on identifying leading views to set up a socially useful debate (Rorty, 1998)
Findings: Elections, Incumbency, and Parliamentary Supremacy
Elections
How to view Elections in Canada
Is there a Duty to Resign when Opposition Party wins majority following an election?
Incumbency
Is GG bound by PM advice to recall House when PM’s party wins the most seats (not majority) but opposition parties state they will govern based on coalition government / formal legislative alliance announced during election campaign?
Is GG bound by PM advice to recall House when opposition wins the most seats (not majority) and leader of leading party presents a plan to govern through a coalition government / formal legislative alliance not announced during election campaign.
Does Incumbency extend to the PM’s chosen successor who wants to test support in House?
Parliamentary Supremacy
A common finding in the survey is that in most cases the GG should do nothing or wait to see the outcome of a vote in Parliament before acting. This is consistent with the view that Parliament is supreme. When asked how a Governor General should resolve constitutional debates in the rare instances in which they are called upon to do so, the top 2 answers are included below.
Circumstances in which participants suggested the Governor General should refuse the advice of an incumbent Prime Minister include:
A final question is what actions a Governor General should undertake in the circumstances listed above.
Discussion:
Need for larger sample to truly make sense of scholarly opinion. Another approach would be to focus on constitutional scholars, based on previous work (Wheeldon, 2013). Three general observations and some modest (!) proposals for consideration:
Elections
Based on the survey results, electoral outcomes appear to matter less than decisions taken in the House. This is not consistent with media reporting (Cyr, 2013) or with the growing populism among the electorate based on Republican ideas of democracy (Smith, 2009).
While scholars are evenly divided on the question of what elections mean (elect House, select government vs. government is whoever wins the most seats), in only one instance were electoral outcomes see as an important guide to the GG (scenario in which PM loses majority following election, advises his replacement will test support);
Incumbency
Incumbency appears powerful but limited in at least 3 ways:
Growing support for the convention observed in other Commonwealth countries that a PM should resign if another party wins the majority of seats in the House;
While majority argue incumbency does not extend to PM’s chosen successor, 20 out of 65 suggest it should (!)
Incumbency limited by losing confidence vote in the House (only near unanimous view – still 6 out of 65 suggested an election was preferable to GG dismissing PM)
Parliamentary Supremacy
Consistent view against active GG and only where principles of parliamentary democracy are at stake does a majority of the sample favor refusing advice;
While respondents consistently affirmed role of the House in who should govern, it remains unclear how the political system can respond to an incumbent Prime Minister who flaunts parliamentary principles and practices even after another party wins a majority in an election;
Even after the events of 2008, the concern about the role of the GG in Canada ensures an incumbent PM wide latitude, justified by at least some support among scholars.
A Modest Proposal (Ok 3)
1. As suggest by Barbara Cameron (2009), elections in Canada for a local MP should be followed by a formal election in the House to determine (by majority vote) who has the support of the members of the House of Commons to assume the position of head of government. To avoid constitutional problems, this should be framed as advice to the GG. A government should be determined inside (not outside) Parliament in full view of Canadians and the media;