Canadian democracy may have too many unwritten rules

Some of the basic rules of Canadian democracy exist not as laws or regulations, but as unwritten conventions. That's supposed to be a feature, not a bug — a way of allowing for a useful degree of adaptability and flexibility. 

But perhaps a few things would be better off written down.

"To have a lack of clarity around these issues that are so central to the proper functioning of our democracy is to invite the kind of toxic debates and intractable disputes that we see too often now in western democracies," NDP MP Daniel Blaikie told the House of Commons last week.

"The way to defend this is to seek the maximum amount of clarity before we are in a crisis."

Blaikie has tabled a motion in the House of Commons that would put some big things in writing — most importantly, the confidence convention.

The bedrock principle of parliamentary democracy is the idea that a government must maintain the confidence of the elected legislature. But while the general notion is easy to understand, in practice almost everything about confidence is open to interpretation.

There is no law or rule that specifies what counts as a matter of "confidence" — which votes in the House of Commons are so serious that defeat for the government side would necessarily require a new election. And recent history has shown that a prime minister who wants to get away from a vote of non-confidence can delay matters, either by changing the schedule of business in the House or by adjourning Parliament via prorogation.

Short of a constitutional amendment, there is not much that can be done to absolutely curtail the prime minister's ability to ask the governor general to prorogue Parliament. But Blaikie would at least add a new wrinkle.

Under his motion, the standing orders of the House — the rules by which the House governs its own business — would be amended to require an explicit vote of confidence either before or immediately after Parliament is prorogued. 

In theory, that might force a prime minister to think twice before walking over to Rideau Hall. And the guarantee of a confidence vote offers some assurance that a government won't escape judgment.

When Blaikie opened debate on his motion last Friday, he led with the issue of prorogation — perhaps for a good reason. Questionable uses of prorogation in 2008, 2010 and 2020 have turned what should be a relatively benign procedure into a source of controversy. A proposal to address prorogation is about as splashy as parliamentary reform can get.

But the other — less splashy — changes in Blaikie's motion are arguably more intriguing and could be even more consequential.

Of the various initiatives that come before the House of Commons — government legislation, spending plans, opposition motions, private members' bills — a handful of items are broadly considered de facto matters of confidence. These include the speech from the throne, the budget and the estimates (through which the House approves the government's specific budget plans). There can also be motions that explicitly mention the House's confidence — or lack thereof — in the government.

But nothing about what constitutes a matter of confidence is written into law anywhere — and that leaves no small amount of room for debate.