Government formation and the Crown

Here’s a refresher on the constitutional conventions (what one must do), the practices (what we’re currently doing), the norms (what we should do) and the customs (what we’ve usually done) surrounding the Crown and government formation.

Conventions

  • First ministers take responsibility for all acts of the Crown and the Crown acts on their advice, as a result; two notable exceptions are requests to dissolve the elected house of legislature, where the Crown retains the discretion to reject the request, and the appointment of the first minister, where the Crown retains the right to appoint the individual judged most likely to secure confidence of the elected house of the legislature.
  • There must always be a first minister to advise the Crown and take responsibility for the acts of the Crown; the Crown’s first duty is therefore to ensure there is always a first minister in place.
  • If the Crown refuses the act on the formal advice of a first minister, such as a request to dissolve the legislature, that first minister resigns or is dismissed, and a new first minister is appointed.
  • The first minister should hold the confidence of the elected house or be aiming to secure it, such as through an election.
  • A first minister whose party has been re-elected with only a minority of seat is bound by the caretaker rules; they should not advise the Crown on significant decisions, such as appointments, until they have demonstrated that they hold confidence; this rule does not apply to newly appointed first ministers, even if they too have only a minority of seats, since the Crown assumes that can govern if they have been appointed.
  • Caretaker first ministers and governments retain the full authority to address emergencies and routine affairs of the executive; the Crown does not assume the power to govern during a caretaker period.

Practices

  • The Crown should allow other actors, such as political leaders or the elected house, to pronounce themselves or act before exercising discretionary powers, such as the dismissal of a first minister.
  • The Crown can encourage a first minister to demonstrate that they hold confidence when it is unclear and potentially warn the first minister that dismissal is always an option if they purposefully avoid meeting the house.
  • The only reliable test of whether a first minister holds confidence or not is a vote in the elected house; comments or agreements made outside of the house by opposition parties are not sufficient indicators of non-confidence.
  • The Crown should not predict how the elected house might act when exercising its discretionary powers, such as when inviting a party leader to form a government following a close election; the legislature is best placed to determine whether or not a government is viable.
  • When a first minister informs the Crown of their intention to resign, the Crown will commission a new individual form a government; this new individual will be referred to a the first minister designate and their transition to power will be supported by the civil service.

Norms

  • It is not the Crown’s role to act as a mediator between parties after an election when it is unclear which of them can hold confidence.
  • The Crown must avoid any semblance of partisanship or bias.
  • The Crown should act in a way that upholds the dignity of the legislature and the principle of democratic representation, rather than be swayed by arguments informed by popular or direct democracy.
  • The Crown should correct any misinformation about the conventions, practices, and norms that surround its role in government formation that political actors air for partisan purposes.
  • In extreme cases of improper, illegal, or unconstitutional behaviour by a first minister, necessity may require the Crown to act contrary to constitution convention in order to protect democracy or the rule of law

Customs

  • A first minister should publicly resign on election night if an opposition party has won a majority of seats; the first minister’s formal resignation to the Crown will occur thereafter.
  • The Crown can invite an opposition leader to form government if the existing government loses the confidence of the elected house; if six months have passed since an election, a dissolution is preferable.
  • The Crown should provide information to the media and public about the formal steps being followed as part of a government transition.
  • The Crown should avoid meeting with opposition parties and/or speaking with the media during a post-election period when it is not clear which party or coalition can hold confidence.

 

 

 

 

 

 

 

 

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