Reconsidering constructive non-confidence for Canada: experiences from six European countries.

• Author: Piersig, Elsa
• Position: Report

Canada's recent run of hung parliaments (2004-2011) gave rise to a number of proposals intended to stabilize minority government. One such proposal recommends fixing the confidence convention by adopting a constructive vote of non-confidence that requires non-confidence votes to simultaneously elect a new head of government. Aucoin, Jarvis and Turnbull suggest that constructive non-confidence will increase parliamentary stability, legitimize mid-term transitions and reduce executive dominance. Yet, a cursory investigation of research on the constructive non-confidence votes demonstrates a dearth of evidence on the rule's effects. This article fills this gap by reviewing other jurisdictions' experiences with constructive non-confidence in order to unpack how the rule might work within the Canadian context. The comparative research demonstrates that though constructive non-confidence will enhance parliamentary stability, it will do so at the cost of decreasing the legitimacy of mid-term transitions and bolstering executive dominance over parliament.

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The election of a minority government in 2004 was seen as a positive result by commentators across Canada, who believed that minority government would provide a healthy check on executive dominance and prime ministerial power. However, as the period of minority government unfolded between 2004 and 2011, several controversial uses of the confidence convention gave rise to reform proposals, including replacing Canada's tradition of "negative" non-confidence votes with more "constructive" votes. Whereas negative votes simply withdraw confidence and generally trigger new elections, constructive non-confidence votes not only deconstruct a government but designate who should form a new one from the existing parliament (i.e., without new elections).

Constructive non-confidence votes exist in a number of countries, including Germany, Spain, Belgium, Poland, Slovenia, and Hungary. Peter Russell mentions this model as a possibility for Canada, and Peter Aucoin, Mark Jarvis and Lori Turnbull incorporate it into their constitutional reform package, alongside fixed election dates and the transfer of the prerogative power of dissolution from the governor general to parliament. (1) These commentators believe that this constructive non-confidence package will enhance parliamentary stability by reducing brinkmanship, re-legitimize the ability of parliament to make and break governments, and reduce executive dominance. (2)

But would a constructive non-confidence reform package live up to these expectations? Would it truly enhance parliamentary stability and the importance of parliament, and if so, at what cost? This paper addresses these questions by examining the history of the constructive non-confidence confidence and its use in six European countries. Experiences with constructive non-confidence in these countries have been overlooked by Canadian academics despite their relevance for understanding the potential effects of such a reform in Canada. The evidence from this comparative review will be used to analyze whether constructive non-confidence would live up to the expectations placed upon it by its Canadian proponents. Drawing primarily on evidence from Spain and Germany, I conclude that adopting constructive non-confidence in Canada will increase parliamentary stability at the cost of greater executive dominance and the furthered delegitimatization of mid-term government transitions.

Constructing Confidence by the Half Dozen: Experiences from Six Countries

The constructive vote of non-confidence has received very little scholarly attention from both Canadian and comparative scholars. Within literature on government formation and resignation, it is generally covered only in passing. (3) One notable exception is Diermeier, Eraslan and Merlo's study, which measures the impact of constructive non-confidence on government stability. Beyond this literature, the most substantial coverage is featured in the literature on the development of the German Federal Republic's Basic Law (4) and in the literature on "chancellor democracy"/German executive dominance. (5)

Constructive non-confidence is the German response to the extreme parliamentary instability that undermined the Weimar Republic. The Weimar constitution had adopted a proportional representation electoral system that resulted in highly fragmented parliaments. Extremist parties capitalized on this fragmentation by uniting as negative majorities within the system--regardless of whether they had any other common ground, they agreed to undermine the chancellor and his cabinet, and thus the regime. This led to successive negative non-confidence votes and a diet of dissolutions which the Weimar president eventually tried to control by bypassing the parliament and appointing emergency chancellors. Since they generally lacked parliamentary support, these chancellors proved ineffective.

To address these problems, the German Parliamentary Council tasked with drafting a new constitution in the late 1940s sought rules that would allow the democratic regime to defend itself against radical elements, anti-democratic ideas, and alternative regimes. (6) Known as the principle of military democracy, the drafters wanted the new constitution to protect the executive from "irresponsible" parliamentary behaviour and presidential interference and guard against destabilizing dissolutions. (7) The Parliamentary Council found the solution in Baden-Wurttemberg where politicians had designed a constructive vote of non-confidence in conjunction with their American military advisors to secure the parliamentary executive. (8) Constructive non-confidence was seen as a promising solution because it ensures that parties unable to agree on a new government cannot force new elections by withdrawing confidence from the incumbent government. The Parliamentary Council chose to combine the constructive vote of non confidence with a fixed parliamentary term of four years and a safety valve needed for an early election if confidence was unattainable for all government options.

Aucoin, Jarvis and Turnbull also provide for a "safety valve" in case of unworkable parliaments. In fact, all constructive non-confidence regimes provide some kind of safety valve, and such a provision was certainly included in the pioneering German case. The German safety valve is provided for in Article 68 of the Basic Law, which allows the chancellor to call a confidence vote. Unlike non-confidence votes triggered by the opposition, an Article 68 vote called by the chancellor is not "constructive." If the chancellor's government loses the vote, he can ask for and receive new (and early) elections, which happened in 1972, 1982 and 2005.

Since the Germans put constructive non-confidence on the constitutional map in 1949, it has been picked up in five other European countries. Spain incorporated it into its 1978 post-Franco constitution for reasons similar to Germany's; it too had seen political extremism overturn parliamentary and executive instability--cabinet duration was even shorter in the Spanish Second Republic than it was in the Weimar Republic--and sought a constitution that promoted a strong and stable democratic regime. In the wake of the fall of communism, Hungary (1989), Slovenia (1991), and Poland (1992) all followed suit in order to protect their emerging democracies. Lastly, Belgium (1995) adopted the reform as a means to ensure that once a government was formed it could remain in office, thus injecting a little more stability into a highly divided parliament.

Like Germany, all of these regimes also have safety valve provision quite similar to Article 68 in order to break parliamentary gridlock. One country, Slovenia, has added an extra twist that more explicitly encourages the formation of a new government over dissolution: if the president of the government (prime minister) introduces a confidence vote, the National Assembly must attempt to respond within 30 days by either electing a new government or reaffirming confidence in the incumbent administration. If the National Assembly fails to do so, only then is an early dissolution possible. However, regardless of this grace period, the Slovenian safety valve still opens the door for a government to engineer its own defeat in order to secure new elections.

Table 1 summarizes the use of constructive non-confidence votes to date. Votes are infrequent in five of the six democracies and have yet to occur in Belgium. When the rule has been used--a total of 12 occasions --it has been employed in two different ways: first, to engineer a mid-term transition involving a change in the composition of the governing parties, and second, to change the head of government without any change in the governing parties. The first category can also be sub-divided into cases where the parties moving a constructive vote actually wish to replace the government and cases where parties clearly have no expectations of success and are using the rule for some other reason such as raising their profile and gaining earned media.

The first way of using constructive non-confidence --to achieve a mid-term change in government--is the expected outcome of the resignation rule given that it was created to structure opposition behaviour so that it would be more "responsible." As such, it is unsurprising that 10 of the 12 cases fall within this category. However, only five of the constructive non-confidence votes (two in Germany and three in Slovenia) were introduced with any expectation of success. Even in this category (1.a), success was not always achieved. In Germany, constructive non-confidence was narrowly defeated in 1972 and then successfully passed in 1982. The successful 1982 vote, however, did not result in a stable mid-term transition; it was quickly followed by early elections under the German safety valve provision. In this...