Welcome to my 7 minute Briefcast. Briefcasts draw on my teaching and research in public international law, national security law and constitutional law at the University of Ottawa Faculty of Law to address topical issues of law.
Today, I’ll explore what happens when a prime minister resigns, an event that then triggers constitutional conventions.
First, let’s address continuity of executive government
The ministry comprises the prime minister, ministers, and ministers of state. It is also referred to as the political executive and, often, Cabinet although there need not be a one-for-one overlap between Cabinet and the ministry.
When a prime minister resigns, the ministry, effectively ends. That is, there is no longer a political executive. This creates continuity issues if a Prime Minister resigns and there is no immediate successor able then to constitute a new ministry.
Such circumstances are rare. That is because Prime Ministers rarely resign in circumstances leaving a vacuum.
Let’s talk about three different circumstances in which a resignation might take place.
First, following an election which, in colloquial terms, the governing party loses.
Typically, Prime Ministerial resignations follow an election that a government party loses. During an election, Parliament is dissolved. However, the ministry persists even after an election is called to preserve continuity.
Following an election, the prime minister resigns if their party cannot command confidence in the House.
In most instances, it is obvious who the leader of the party with the confidence of the Commons will be, after the election results are in. This is what we mean when we speak of majority governments. A party will have a majority of votes in the Commons, and thus command that body’s confidence.
However, a Prime Minister need not automatically resign if their party has fewer seats than the combined opposition. After all, Canadian Parliaments have resulted fairly frequently in minority governments.
Thus, an incumbent Prime Minister and their party may attempt to form coalitions to retain support. These could be ad hoc on a vote by vote basis, or more formally structured.
Thus, while resignation after an electoral loss in which it is clear no such arrangement is possible aligns with precedent, governments can technically stay in power until a formal no-confidence vote occurs.
If a Prime Minister were to persist, and then lose a confidence vote, then the Prime Minister would resign, ending the ministry.
It is very unlikely that the Governor General would accept a request from the defeated incumbent Prime Minister to dissolve a new Parliament for yet another election, so soon after its reconstitution.
Instead, the Governor General appointd a new prime minister who enjoys the Common’s confidence. In principle, this might involve a new leader from another party, or the same party as the former Prime Minister, or a coalition involving several parties.
Now let’s talk about resignations following a lost no-confidence vote that occurs in an older Parliament, well into its lifespan.
A no-confidence vote is a formal expression by the House of Commons that it does not support the current government.
There are different ways a no-confidence vote can arise. First, explicitly worded votes: These motions clearly state that the House does or does not have confidence in the government
Second, motions declared as confidence votes by the government: The government can declare that a particular vote will be treated as a matter of confidence, and a loss on such a vote can trigger the government's resignation or a request for dissolution
Third, implicit votes of confidence: Traditionally, certain matters, like the budget, have been considered implicit votes of confidence, where a loss on these items constitutes a loss of confidence. However, this category has become less clearly defined.
A government that loses a confidence vote in the House of Commons has only two choices. Specifically, the prime minister must either resign or request a dissolution of Parliament. If the prime minister refuses either course after losing a confidence vote, the Governor General holds the power to dismiss them, an extraordinary but constitutional safeguard.
Dissolutions are the typical outcome after a non-confidence vote, at least in a Parliament that has existed for a while since an election.
But in principle, a Prime Minister could instead choose to resign, ending the ministry. Thereafter, it would be for the House to test whether it has confidence in someone else. And it will be for the Governor General to appoint a new prime minister they are persuaded has such confidence.
This would be an unusual outcome. Where a Prime Minister resigns, and ends the ministry, there is usually an obvious successor. And it usually comes in a structured way, without any no-confidence vote.
In a majority government situation, the governing party can effectively determine which person has the confidence of the Commons, typically after a party leadership contest.
Thus, it is reasonably common in Canadian practice for a prime minister to be replaced by a new party leader who was not the leader at the time of the last election, following an internal party leadership contest.
But to be clear, a party should only be able to determine a prime minister through a leadership contest if the Governor General is persuaded that the person will have the confidence of the House.
That becomes a more fraught and uncertain process where the government party is in a minority situation in the Commons. It becomes even more perilous where the governing party has already lost a non-confidence vote under the prior Prime Minister.
As a final matter, it could be that there are circumstances where it seems clear at the political level that a new leader does not have the confidence of the Commons, but the Commons is not able to determine confidence because it is prorogued between parliamentary sessions.
This places the Governor General in a conundrum. There is likely divided opinion on what should happen in this unusual circumstance. It seems likely that most commentators would agree that the testing of confidence before the Commons is an urgent imperative. It may also be the case that, in the absence of a Prime Minister, the Governor General has a reserve power to end the prorogation and reconvene Parliament. That is, however, a speculative observation.
Thank you for your interest.
