There are many of formal rules that govern Parliament. Some are statutory,
some common law, and others are found in the Standing Orders of the House
of Commons and the Rules of the Senate. But all of these formal rules together,
give only a very incomplete picture of how Parliament works and what parliamentarians
should or should not do. Constitutional conventions also play an important
role in the work of Parliament. This article reviews the nature of constitutional
conventions and their relationship with the formal rules of the constitution.
It examines a few of the more important conventions including the Governor
Generals choice of prime minister, the address in reply to the speech
from the throne, and the issues of what constitute a matter of confidence.
Conventions do certain things to our formal rules that really make them
tolerable. We could scarcely live if we had to abide by all the formal
laws and rules that apply. Some laws are simply antiquated, others too
broad, and some important matters are not properly covered by formal rules
at all. Antiquated rules include the powers of reservation and disallowance.
Overly broad legal powers are seen in the Governor Generals ability to
hire and fire members of the Privy Council at will. Missing completely
from formal law are many fundamental aspects of responsible government,
including the existence and functions of the Prime Minister and cabinet
as well as the requirement that governments resign or call an election
if they lose a clear vote of confidence.
Conventions can even directly contradict an antiquated legal rule. Section
56 of the Constitution Act, 1867 imposes a clear obligation on the Governor
General to forward copies of every Act passed by Parliament to the British
government. However, this practice was stopped in 1942, and Canadians
would no doubt be affronted if the practice started again. There are few
such clear contradictions of formal rules, but it is important to understand
that they can occur. It is the clearest indication we have of the importance
some conventions have in our constitution.
Generally speaking conventions should be distinguished from other formal
rules because they are not directly enforced by either the courts or the
Speaker. One possible exception is the sub-judice convention, which Speakers
have occasionally enforced.1 Many conventions can, however, be enforced
indirectly because even an authoritative description or recognition of
the terms of a convention is usually enough to ensure most political actors
If there is a direct conflict between a convention and a formal rule, the
courts or the Speaker will enforce the formal rule over the convention.
Indeed, as Speaker John Fraser once put it, The Speaker of the House of
Commons by tradition does not rule on constitutional matters.2 The duty
of the Speaker is to enforce the rules of procedure. For example, Speakers
refuse to comment on whether a government defeat is a vote of no-confidence.
And the Speaker will not prevent a government from continuing to conduct
business after being defeated on a clear vote of confidence.
The interplay between conventions and formal rules is seen every day in
Quesiton Period. A convention supporting individual ministerial responsibility
requires ministers to answer questions put to them about their own activities
and those of their departments. Indeed the existence of Question Period
is a defining element of modern parliamentary government. However, speakers
rulings over the years have both contradicted and narrowed this convention
First, successive Speakers rulings have reinforced a rule that a minister
cannot be required either to give an answer to a question or to give reasons
for refusing to answer. Secondly, Speakers have ruled that questions may
only be put to ministers about their current portfolio and not about informal
responsibilities, such as regional minister. This rule also means that
one cannot question a minister about what he or she did as minister of
another department. Furthermore, one cannot ask a question of a minister
about one of their predecessors activities. And finally, a question may
be put to particular minister, but there is nothing to prevent another
minister from answering instead.
If these rules were the only ones guiding Question Period it would soon
degenerate into simply a hollow list of rhetorical questions. Fortunately,
the obligation to provide some answer, however insubstantial, is strong
enough that Question Periods play out regularly with a lively give and
take. Regardless of the frequent criticisms aimed at the level of questions
and answers alike, I believe that over the life of a Parliament Question
Period is able to provide an anchoring focus for debating substantive issues
and critical political developments. It does so because of the general
acceptance of conventions supporting individual ministerial answerability.
In short, the conventions allow Question Period to work almost despite
the formal rules enforced by the Speaker.
Conventions, then, are rules of binding behaviour that are not enforced
by either the courts or the speakers our legislatures. Most conventions
are unwritten, coming from years of practise either in doing a certain
thing (such as answering questions in the House) or in not doing something
(such as Governors General not refusing Bills presented to them for royal
assent). However, some conventions have been written down or even have
their genesis in a written agreement among political actors. For example,
the Old Dominions owe a great deal of the earlier independence from agreements
reached at Imperial Conferences in the 1920s and 1930s. At those Conferences,
British ministers agreed to a range of requests from Dominion governments
for greater autonomy; after 1930, for example, the British government relinquished
to the relevant Dominion government the right to advise the monarch on
whom to appoint as Governor General.
Conventions should also be distinguished from mere customs and habits.
For example, the notion that new Speakers should be dragged unwillingly
to their chair is a custom, not a convention. So was the idea that the
Governor General or her Deputy should actually appear in the Senate, along
with the assembled Members of the Commons, in order to grant royal assent.
Customs and habits are only symbolic traditions or pleasing rituals whose
observance or absence has no substantial impact on the operation of constitutional
rules and principles. Thus, it is a firm rule of our constitution that
Parliament is composed of three elements: the Queen, the House of Commons,
and the Senate. But they do not have to be physically together in order
for royal assent to be granted. The relatively recent innovation in practice
that sees the Governor General granting royal assent in her office has
not altered in any negative way the functioning of Parliament or the operation
of constitutional processes.
Conventions exist to protect some principal of the constitution that would
be negatively impacted.
Two of the most important principles of our constitution are that we have
representative democracy and parliamentary responsible government. No explicit
rule prevents a Prime Minister from disregarding the unfavourable results
of a general election but it was not open to Prime Minister Kim Campbell
to insist that the 1993 general elections were simply disappointing and
that she would remain in office and hold another election later in the
year. Had she done so, the Governor General would have been justified in
firing her and appointing Jean Chrétien as Prime Minister.
Important conventions govern the events after general elections. The most
important of these concern the Governor Generals possible appointment
of a new Prime Minister, and the votes on the Address in Reply to the Speech
from the Throne.
The generally accepted formulations are as follows: the incumbent Prime
Minister has a right to remain in office and to meet Parliament if he or
she believes they have a reasonable chance to win a majority in a confidence
vote. In the case of a majority victory, the option is clear and the Prime
Minister simply continues. Where another party wins a majority of seats
there is no hope that the incumbent would survive a confidence vote; so,
the incumbent must resign and the leader of the winning party appointed
as Prime Minister. Where no one party wins a majority then the Prime Minister
may choose to resign, as Pierre Trudeau did in 1979.
It is true that in all but one instance of 20th century minority governments
at the federal level, the prime minister resigned if another party won
a plurality. However, these precedents not are in themselves determinative
of a convention that requires a prime minister to resign. Conventions are
determined by ascertaining what constitutional principle is involved, what
precedents have occurred, as well as the statements of actors and observers
concerning those events. A review of comments of actors and academics shows
that the preponderance of opinion clearly supports the prime ministers
right to meet parliament rather than an obligation to resign if another
party wins a plurality.3 Therefore, I believe that Paul Martin was mistaken
when he said in 2004 that it made sense for the leader of the party with
the most seats to be appointed Prime Minister. It is not an automatic rule
that the incumbent should resign if another party wins a plurality. What
counts is who is likely to command a majority in a confidence vote in the
House of Commons. A Prime Minister may be appointed to office by the Governor
General but their right to govern in our parliamentary democracy comes
from enjoying the confidence of a majority of the elected members of the
House. It would be irresponsible, even, for Prime Ministers to resign simply
because they finished second in situations where they knew full well that
a smaller party was prepared to support them and that they had enough combined
seats to create a majority. The Governor is indeed bound to appoint the
leader of the largest available party, but only after the incumbent Prime
It is not a widely appreciated fact that an election is not truly over
in our parliamentary system until the vote on the Address in Reply is held.
In exercising a right to remain in office it should be clearly understood
that the Prime Ministers right is to meet Parliament, not to govern indefinitely.
Here the Speech from the Throne and, more particularly, the vote on the
Address in Reply assumes centre stage.
The Speech from the Throne lays out a broad statement of what the government
intends to do. The vote on the Address in Reply is the judgment of the
House on whether it has confidence in that governments plans. If an opposition
party successfully adds words to the motion that convey a lack of confidence
in the government, then the House has spoken and the government must resign.
It is then the turn of the leader of the largest remaining party to form
a government and try to win a confidence vote.
Following the 1985 Ontario election in which his Conservative government
was reduced to a plurality, Premier Frank Miller mistakenly believed that
he had a right to an election after losing the confidence vote on the Throne
Speech. However, the Liberals and NDP had signed a written agreement in
which they gave mutual pledges that would allow David Peterson to govern
for two years with the support of the NDP. The Lieutenant Governor quite
properly appointed Peterson as the new Premier. The Liberals then went
on to win an ensuing confidence vote.
It is axiomatic to parliamentary government that the cabinet must enjoy
the confidence of the majority of elected members of the legislature. Consequently,
the House has not just a right but a duty to express its confidence, or
lack of it, in the government in office after an election. The newly elected
members decide who has a right to govern through the life of that Parliament
and this decision is first expressed in the vote on the Address in Reply.
An incumbent Prime Minister has the right to meet Parliament after a minority
election, and the Governor General has the duty to appoint another if the
incumbent resigns for whatever reason. However, it is the House of Commons
that decides who may actually govern.
In this light, the vote on the throne speech is vital in minority government
situations, and the failure to hold one is a serious constitutional error.
Votes on the throne speech have usually been taken for granted. But, the
mention of them in the procedural rules does not mean that they will actually
happen. For example, Nova Scotia has had two minority governments in the
past 6 years (Liberal in 1998 and the other Conservative in 2003) and in
both cases a Premier was reduced from a majority situation to a minority.
As was their right the incumbents chose to remain in office. In both instances
the Lieutenant Governor delivered a Throne Speech and a debate in reply
ensued, but in neither case was a vote actually held. This was possible
because, the Government House Leader is in control of when motions shall
be put on the order paper. He simply chose not to put the motion for a
vote down on the order paper; it simply never came up. This tactic also
conveniently suited one the opposition parties on each occasion as well,
as they did not have to publicly support the government until the Budget
These precedents are, in my view, unfortunate examples of the weakness
of constitutional conventions the lack of enforcement mechanisms to ensure
compliance with many conventions. They are also doubly unfortunate given
that they occurred in the same legislature which first won responsible
government in any of the British colonies. After the 1838 election Joseph
Howe moved a motion of no confidence in the Governors Executive Council
after his party won a majority. A vote was held on the motion and it passed.
The subsequent resignation of the Council, and the appointment of Howe
and his colleagues, marked the first time in the empire that a Governor
tacitly acknowledged that his Council should hold the confidence of the
These discussions also reveal that there are different classes of convention.
Some suffer from ambiguity in the details of what should or should not
be done. Others are occasionally breached without a major problem arising.
But some are always followed because significant troubles would result
from even one breach. The key to knowing that a convention is at work is
to consider the consequences if there were no rule. In the Nova Scotian
examples, the governments were able to get away with not holding a vote
on the throne Speech because another party holding the balance of power
tacitly acquiesced for its own reasons. However, if no votes were ever
taken on the Throne Speech, there would be no sure way of settling who
has the right to govern in a minority situation. As electoral reform becomes
more popular in Canada and minority governments may become more frequent
it is all the more important for Canadians to realize the crucial role
of the vote on the Address in Reply.
After the right to govern is settled by the vote on the Address in Reply,
what other votes might constitute a loss of confidence becomes paramount.
Fortunately we have moved from the position of the mid 20th century in
Canada, where for a while governments behaved as if every vote was a vote
of confidence. Contemporary Canadian views are more in keeping with those
in other experienced parliamentary systems in the Commonwealth. Confidence
A clearly worded motion of no confidence or condemnation
The defeat of the governments motion on the Address in Reply, as this
is a repudiation of the governments general set of proposed policies.
The defeat of the main budget motions as this is a rejection of the governments
Any motion that the government has stated to be as a matter of confidence
Other defeats of major government policy proposals may raise the question
of confidence but they do not in themselves demonstrate a loss of confidence.
It is always open for a Prime Minister to either carry on regardless or
to settle the matter with a subsequent motion of confidence.
Other constitutional conventions cover many aspects of parliamentary life.
The inclusion or exclusion of ministers and parliamentary secretaries from
committees, the Speakers reliance on party lists of Members to be recognized
in Question Period and debates, and party disciple are just a few examples.
As Sir Ivor Jennings once wrote, conventions provide the flesh which clothes
the dry bones of the law.
1. See Robert Marleau and Camille Monpetit, House of Commons Procedure
and Practice, Ottawa: House of Commons, 2000, pp. 534-6.
2. House of Commons, Debates, July 11, 1988, p. 17384.
3. See Andrew Heard, Canadian Constitutional Conventions: The Marriage
of Law and Politics, Toronto: Oxford University Press Canada, 1991, p.