The morning after a general election: the vice-regal perspective.

• Author: Neary, Peter

Everywhere in Canada, election night now produces a television extravaganza, with the commentariat out in full force. The next day newspapers chime in with their reporting, as the country wakes up to further analysis of what has happened and what the future might bring. From the vice-regal perspective, however, the path to be followed after every election is always clear and always the same: the conventions of responsible government must be respected and politics eschewed. The vice-regal representative is the protector of the Constitution and not a political actor: the job is to follow convention, stay away from party strife, and maintain the legitimacy of the office. This article looks at the conventions and how they have worked in various examples over the years.

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In our Canadian democratic system, the electorate ultimately decides matters--but indirectly through elected members, and there can be surprising outcomes. We have a government and a premier or prime minister while an election campaign is in progress, and the "term" of a premier or prime minister is from the date of swearing in until the date of leaving office, a period that can cover several elections and legislatures (both realities are often forgotten).

If a general election in a province or in the country as a whole produces a legislative majority for the governing party, the administration of the day simply carries on in office (that is what happened nationally after May 2, 2011). If, following a general election, no party commands a legislative majority, a number of possibilities present themselves, and in these circumstances the vice-regal representative may be called upon to act--not politically but constitutionally, in accordance with the conventions of responsible government.

What are those conventions? One is that the vice-regal representative has one adviser at a time (the prime minister in Ottawa and the premier in a provincial capital) and, except when the maintenance of responsible government itself is at stake, follows the advice of that individual. Another is that for a government to hold office it must have the confidence of the elected chamber, the House of Commons in Ottawa or the legislature of a province. Confidence means majority support on crucial matters, supply (money bills) being the leading example. If there is doubt about the government's standing with a newly elected house, it must either resign or demonstrate confidence forthwith. If after an election a government that previously commanded a legislative majority finds itself in a minority position (including being behind in party standings), the prime minister or premier may choose to resign or, if the opposition forces are divided, meet the new house and test the government's strength. If the government is sustained by the newly elected body, it can carry on. Alternatively, if it is immediately defeated on a confidence vote, it has no choice but to resign and give way to another administration, assuming one can be formed (one can imagine a second election being immediately necessary but this seems most unlikely).

Who should govern is a matter for politicians to sort out, though an administration could not carry on simply by avoiding meeting a newly elected house. If the existing government has to go, the vice-regal representative acts when it is clear who can successfully govern--that is to say, win votes of confidence. In all likelihood, following a Canadian election this will be whoever can unite opposition groups into a governing majority. But there is no guarantee that a governing party that commands the largest number of seats but not a majority will go on governing. For emergencies, the vice-regal representative retains an unspecified reserve power to deal with those situations--very few and very far between--that cannot be dealt with through the simple, well known, and accepted conventions of responsible government.

Examples from Abroad

In recent times the most striking example of the latter came in 1967 when, on December 17, Prime Minister Harold Holt of Australia went swimming on a favourite beach and was never seen again. His remains were not found and he was probably a victim of drowning (though there have been many wild theories). On December 19 the government of Australia announced that Holt was presumed dead, whereupon Governor General Lord Casey appointed Deputy Prime Minister John McEwan as first minister. Constitutionally, the totally unexpected was dealt with smoothly and efficiently. In Canada, at the federal level, a list, in rank order, of ministers who would assume the prime minister's duties in the event of incapacity is now published and updated periodically by the Privy Council Office. At the provincial level, the position of deputy premier may meet the same need, thereby ensuring a smooth transition if required.

Recent events in the United Kingdom have highlighted to advantage what can happen in that country after the election of what the British call a "hung parliament." Following the general election of May 6, 2010, which did not produce a majority for any party but put the governing Labour Party in second place in members elected, there was an intense round of negotiations in which senior public servants played a facilitating role. This eventually produced an agreement between the Conservatives and Liberal Democrats. While this agreement was in the making, Prime Minister Gordon Brown made a clear distinction between his political role as leader of the Labour Party and his constitutional role as prime minister. Wearing his political hat, he held out the possibility of a Labour/Liberal Democrat arrangement to govern the country. In his constitutional role, he understood that agreement between the other parties would mean an immediate change of government. When the Conservatives and Liberal Democrats reached such an agreement, he immediately left 10 Downing St., and the Conservative leader, David Cameron, soon arrived there. The role of the Crown in all this was symbolic: the politicians sorted matters out, and David Cameron became prime minister by going to Buckingham Palace and accepting the Queen's invitation to form a government. The Queen gave legitimacy to what the politicians had worked out among themselves and her action was unchallenged.

Canadian Examples

The most famous case involving vice-regal discretion is linked to the career of Prime Minister William Lyon Mackenzie King, whose name by definition looms large in any discussion of the conventions of responsible government. In 1919 King became leader of the Liberal Party and in 1921 became the first prime minister to lead a minority government. Thanks to continuing support of Progressive members (he called them Liberals in a hurry) all went well...