E Crown and Government Formation: Conventions, Practices, Customs, and Norms
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e Crown and Government Formation: Conventions, Practices, Customs, and Norms Philippe Lagassé* e Crown’s role in government formation is cepts helps us identify which constitutional rules poorly understood in Canada. As demonstrated $ rmly bind the Crown and which are more % uid by the confusion surrounding the Lieutenant and evolving. irdly, the lack of o# cial explana- Governor’s duties in the a" ermath of recent tions and transparency about the Crown’s func- elections in British Columbia, New Brunswick, tions and constitutional activities makes it dif- Prince Edward Island, and Newfoundland and $ cult to appreciate the rules that surround the Labrador, the functions of the Crown are mis- institution. While some vice-regal o# ces have represented by politicians vying for power and made e& orts to better articulate their constitu- misconstrued by commentators. ese cases also tional roles, there is a need for greater openness suggest a degree of uncertainty about the Crown’s and explanation. powers within the vice-regal o# ce themselves. ere has been a regrettable tendency to exag- My aim in this article is to o& er an analysis of gerate the Crown’s involvement in government the types of rules that surround the Crown and formation, which risks dragging the vice-regal government formation in Canada. I begin the representatives into the political arena or creat- article with a discussion of the di& erence between ing unrealistic expectations about the personal constitutional convention, practice, custom, and discretion they are able to exercise. norms. I then examine how the Crown’s role in government formation are guided by these four Misunderstandings about the Crown’s place types of rules. I conclude by recommending ways in government formation can be traced to three that vice-regal o# ces can better explain their gaps in knowledge. e $ rst is a vague com- functions and avoid confusion and controversy prehension of the foundational conventions of about their powers and personal discretion. responsible government as they pertain to the Crown. While the conventions that surround the government’s need to secure and hold the con$ - Categorizing the rules dence of the elected house of the legislature are widely recognized, the conventions that frame Constitutional conventions serve a vital purpose the relationship between a $ rst minister and the in Canada’s system of government. ey regu- Crown are not. Second, there is confusion about late the interaction between powers of the state what counts as a veritable constitutional conven- and ensure that essential constitutional prin- tion. Conventions are too o" en con% ated with ciples, such as democracy, the rule of law, and other types of rules, notably practices, customs, the separation of powers, operate within and and norms. Di& erentiating between these con- between institutions and o# ces. Although con- Constitutional Forum constitutionnel 1 ventions have been described as the “morality of kinds of rules: practices, customs, and norms. 9 the constitution,” 1 this fails to capture their func- To di& erentiate them, it is necessary to outline tion today. Conventions are power distribution the characteristics of constitutional conventions mechanisms. 2 In some cases, conventions will and how they di& er from these other types. grant authority; in others, they will constrain actors. For instance, these binding constitutional As held by the Supreme Court of Canada, for rules ensure that the Canadian executive has a rule to be a constitutional convention, it must democratic legitimacy, through the con$ dence meet a test set out by Sir Ivor Jennings: $ rst, the conventions, 3 and that ministers are account- rule must have precedents; second, the actors able to Parliament for the a& airs of government, involved must believe that they were bound by owing to the conventions of ministerial responsi- the rule (and hence, that the actors agreed on the 10 bility. 4 Conventions also explain the Prime Min- rule); and third, the rule must exist for a reason. ister’s dominance over the executive and within Among the rules that meet these criteria are that Cabinet, 5 as well as the duties and safeguards that the Queen appoints the Governor General on the protect certain o# ces of state, such as the inde- advice of the Prime Minister, and that the Gov- pendence of the Attorney General. 6 ernor General acts on the advice of the Prime Minister when appointing the other members of 11 Constitutional conventions can be con- Cabinet. Rules that do not meet these criteria trasted with the law of the Constitution. 7 Con- are not a constitutional convention, but some- stitutional law is subject to enforcement by the thing else (Table 1). courts. Conventions, on the other hand, are only As Rodney Brazier has argued, one of these subject to judicial identi$ cation, not enforce- other categories of rules are practices. 12 ese are ment. is means that courts can recognize the rules they may become conventions but are not existence of conventions, and determine their quite there yet. Practices have a reason, usually scope and meaning, but that the onus to respect grounded in political prudence or democratic them lies with the actors that they are meant to ideals, and political actors propose and follow bind. While this lack of judicial enforcement can them with these reasons in mind. Yet, actors lead to concerns about their strength and the may not agree that they are bound by them, and ability of political actors to circumvent them, there may be disagreement about the scope and clear violations of convention are rare in Canada. application of the rule. As well, the precedents is re% ects the adaptable nature of convention. that support a practice tend to be inconsistent. Conventions are % exible, which allows them to Accordingly, practices are best seen as rules that be slightly bent when necessary and to adapt to are auditioning to become conventions. Certain new circumstances. eir inherent elasticity is practices will solidify over time and become one reason conventions are not codi$ ed into law. conventions as actors agree about what they Although conventions are o" en manipulated require and when they are binding. Others will for partisan reasons, political actors rarely com- be amended or adjusted, never gaining a solid pletely and publicly break them. enough foothold to achieve widespread agree- ment or force. Still others will be abandoned. Stating that conventions are rarely violated may strike critics as an odd statement. It is not One example is the government’s tabling of uncommon to hear accusations that politicians treaties before Parliament from 1926 to 1966, are violating convention. 8 ese charges, how- which was then abandoned by the government ever, arguably re% ect a misunderstanding of par- of Lester B. Pearson, then resumed under Prime ticular rules or mistakes about what counts as a Minister Stephen Harper. 13 Another example is veritable convention. In the latter case, the word the current, inconsistently applied, practice of ‘convention’ will be attached to another type of holding votes in the House of Commons when rule, one that does not meet the criteria for a con- the government deploys the military overseas. 14 stitutional convention. Speci$ cally, conventions ese practices share a reason, involving the can be confused with three related, but distinct, Commons in foreign policy decisions, but gov- 2 Volume 28, Number 3, 2019 Table 1: Rule characteristics Type of Rule Present Contested or weak Constitutional Convention Precedents Ethical imperative Acceptance and agreement Reasons Practice Reasons Precedents Acceptance and agreement Ethical imperative Custom Precedents Reasons Acceptance and agreement Ethical imperative Norm Reasons Acceptance and agreement Ethical imperative Precedents ernments have clari$ ed that they are not bind- ey serve to de$ ne what is acceptable behav- ing, and their scope is the subject of regular iour in a constitutional context, including which debate between parties. 15 actions are necessary to uphold fundamental principles. To use a sports analogy, norms refer Customs are another type of rule that can be to the imperative to play the game fairly and ethi- confused with convention. 16 In some cases, these cally. 18 ey refer to actors’ willingness to respect traditions are antiquated conventions whose rea- both the letter and the spirit of the Constitution. sons no longer hold or apply, yet they are gener- In this sense, norms are a type of meta-rule that ally respected out of habit. In other cases, customs ensure laws and other rules are followed prop- simply re% ect established ways of doing things, erly. Norms are vital for a properly functioning with no connection to a rule that rose to the level democracy, since even the most detailed and of convention. Customs are thus characterized powerful laws and conventions can be manipu- by their precedents and the tendency of actors lated by ill-intentioned actors. Indeed, given to believe that these traditions should be hon- the prominent role unwritten rules play in most oured. What they lack are clear or solid reasons. constitutional systems, norms help to ensure that One such custom is the rule that the Monarch actors behave with fairness and honour when or their representative will not enter the lower exercising their powers and authorities. e house of Parliament. is tradition dates back importance of norms is hinted at by the title of to a time when the Commons needed to protect ‘Honourable’ that ministers, and of ‘Right Hon- itself and its members from the Crown’s inter- ourable’ that prime ministers and governors gen- ference. While this tradition is still followed at eral, are granted. We expect our highest o# ce- the federal level, its rationale is no longer salient. holders to exercise their powers and authorities Customs are followed because ‘this is just how honourably.