Constitutional conventions and parliament.

• Author: Heard, Andrew

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 General's choice of prime minister, the address in reply to the speech from the throne, and the issues of what constitute a matter of confidence.

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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 General's 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 comply.

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 of...