Conventions are not mere practice or precedent

The debate over Canadian government formation misunderstands the nature of conventions

There appears to be a debate among thoughtful commentators over whether a key constitutional convention in Canada has in fact changed due to common practice. Does the party that “wins the most seats” in an election automatically get to form government?

The traditional - and correct, as Phil Lagassé has explained - answer, is no. The government does not actually change on election night, just as it does not cease to exist when Parliament is dissolved. The government remains the government, and is free to test the confidence of the House when Parliament is summoned after an election. Normally, this isn’t what happens, however. When election results are sufficiently clear such that the incumbent government will not or is unlikely to maintain the confidence of the new House of Commons, the government will signal its resignation and another party gets to form government.

But that this prevails as practice does not translate into a convention, because conventions are distinct from practices, traditions, precedents, and customs. Practice can be fundamentally important, is often rooted in politics, and can become the basis for conventions, but something more is needed than mere repetition before practice becomes convention. Despite this, we are increasingly seeing commentary that argues that the “most seats” perspective on government formation is now “convention” in Canada.

Commentators pushing the “most seats” vision as a convention miss the mark in two important ways. First, they do not distinguish between conventions and mere practice. Conventions do not rest solely on precedent; they must also be grounded in reason, an underlying rationale that is rooted in constitutional principle. And in this particular context, some commentators are missing the fact that the “most seats” conception does not work because our conventions surrounding government formation are directly connected to the most foundational constitutional convention we have: responsible government.

No reasonable commentator (as of yet) has questioned the central principle that governments win and maintain power by retaining the confidence of the majority of members of the House of Commons. By contrast, there appears to be no rationale for “most seats” as a constitutional rule other than political expediency and public opinion. But when that public opinion is rooted in a fundamental misunderstanding of the constitution - indeed, when transforming the practice into a convention would actually undermine the core confidence convention - it cannot be said to be reason rooted in constitutional principle.

The second way commentators fundamentally miss the mark is that they do not have a strong grasp on how reliance on precedent should operate to inform whether practice has become convention. The question is not “what normally happens after an election?” it is “what happens when the incumbent government honestly believes or can ensure it will maintain the confidence of the House after failing to win ‘the most’ seats?” The reason there is only one exception to the ‘most seats’ rule at the federal level isn’t because there’s now a convention that the winner of the most seats gets to govern, it’s because the scenario where a 2nd-place party can easily establish a confidence arrangement almost never happens.

The number of times a federal governing incumbent a) took 2nd-place in an election, b) was sufficiently close in seat count to the 1st-place party such that it might consider attempting to stay in power, and c) only needed the agreement of one other party (and not a separatist one) to obtain majority support, has never happened since 1925.

By contrast, when the situation does arise at the provincial level, guess what? The “most seats” idea as a rule evaporates, as in recent years we’ve seen the 2nd-place party form government as well as attempts by 2nd-place incumbents to test confidence. When commentators make the claim that there is a different convention at the federal level, they are effectively asserting that there are different underlying constitutional principles at the federal level than at the provincial, all while rooting their reasoning in ‘politics’ or public opinion. It’s an incoherent position.

Constitutional conventions are not “what usually happens”. They are not even what politicians may assert - in the midst of specific political contexts - ‘should’ happen (while the views of the ‘relevant’ actors, which in this case may also include the governor general, are certainly pertinent to the status of conventions, we should be cautious about relying on statements by political leaders in the midst of election campaigns as if they reflect constitutional principle rather than political tactic).

Conventions are binding political rules of behaviour rooted in reason. It is important to distinguish these from mere practice, precedent, or custom. And it is especially important for experts to get this right, because in the current media and civic atmosphere, we cannot rely on the media or the general public to accurately comprehend how our system of government operates. Politicians will subvert the constitutional system to their advantage if they see an opportunity, and conflating practice with convention presents exactly that. The assertion that there is a “most seats” rule on government formation is an invitation for some future (or current) politician to undermine electoral results or parliamentary outcomes, and erode democracy.