First Reading is a daily newsletter keeping you posted on the travails of Canadian politicos, all curated by the National Post’s own Tristin Hopper. To get an early version sent directly to your inbox, sign up here.
Mark Carney may now be Canada’s 24th prime minister, but the unique circumstances of his appointment mean that he technically shouldn’t be allowed to do anything.
No appointments. No new spending or taxes. No foreign policy commitments. Nothing at all that isn’t “routine,” “non-controversial” and “reversible.”
It’s all part of the “caretaker convention,” a longstanding parliamentary tradition which holds that until a prime minister is able to “command the confidence of the House of Commons,” he’s not allowed to wield the full powers of his office.
In fact, he’s not supposed to do almost any of the things Canadians typically associate with their prime minister.
“Avoid participating in high-profile government-related domestic and international events,” reads an official Privy Council guide to the caretaker convention. It adds that this includes “international visits, and the signing of treaties and agreements.”
Caretaker prime ministers are also asked to steer clear of “appointments,” “policy decisions,” “new spending,” “negotiations or consultations,” “non-routine contracts,” and “grants and contributions.”
The only real exception to this is anything that could be deemed “urgent and in the public interest.”
But in his first hours as prime minister, Carney is already acting beyond the limits of a caretaker. Shortly after his swearing-in, he signed an order to get rid of the consumer carbon tax. Next week, he is planning to travel to the U.K. and France on official business.
When asked by a reporter when he would be convening the House of Commons, he brushed it off. “The news today is behind me; an exceptional group of individuals who are serving Canada … we will be going to take some decisions which directly meet some of the objectives I set out in my remarks,” he said. “That’s the news for today.”
The caretaker convention usually clicks in during election campaigns: As soon as writs are dropped and Parliament is dissolved, the idea is that the sitting prime minister has lost the confidence of the House and should conduct himself with appropriate reserve.
“Given … that the Government cannot assume that it will command the confidence of the House after the election, it is incumbent upon a government to act with restraint during an election period,” reads the official caretaker convention guide.
But it’s arguable that the caretaker convention applies just as equally to Carney, given that he hasn’t received Parliament’s official blessing as the new prime minister.
Unlike, say, the U.S. presidency, the office of prime minister is not a directly elected position. The position isn’t even mentioned in the British North America Act, Canada’s founding constitution.
Instead, it refers only to the executive powers of the Governor General, who acts on the “advice” of the Privy Council. Only in practice did this become a system in which the Governor General defers to the executive decisions of the prime minister — provided that the prime minister has the legitimacy to govern.
One of the only times a Governor General ever slapped down a prime minister, in fact, was over charges that the prime minister was attempting to govern without the confidence of the House.
When Charles Tupper lost an election to Liberal leader Wilfrid Laurier in 1896, he refused to cede power or convene Parliament, and was ultimately forced to resign by Governor General Lord Aberdeen after attempting to push through some patronage appointments.
Carney isn’t the first non-MP to be sworn-in as Canadian prime minister, but he is the first without any parliamentary experience whatsoever.
Contrary to popular belief, the prime minister doesn’t have to be a parliamentarian or even a Canadian citizen — it’s anyone who can command the confidence of the House of Commons. But no such vote can occur until Parliament is recalled.
The last confidence vote was more than three months ago on Dec. 9, when Carney was still just a financier with a side gig as a Trudeau advisor. That particular vote ended 180 to 152 in the Liberals’ favour, but the vote was to express “confidence in the Prime Minister” — who at the time was still Justin Trudeau.
In a recent write-up for The Hub, former Conservative staffer Howard Anglin argued that until Carney has “met the House and secured its confidence,” the Governor General should ignore him if he tries to do anything beyond the basics.
“If Carney tries to execute any orders-in-council inconsistent with the (caretaker) convention, the Governor General should quietly leave them unsigned in her inbox until the government has secured Parliament’s support,” he wrote.
Carleton University Westminster expert Philippe Lagassé agreed, telling National Post, “This is a new ministry and it’s not evident that it will hold confidence, so caretaker should apply until there is a confidence vote.”
But Lagassé differed with Anglin on the details of how Carney might be reined in if he tries to exceed his brief: It’s usually up to the clerk of the Privy Council to tell a prime minister they can’t do something, rather than the Governor General, Lagassé said.
And, like a lot of the checks on power within the Canadian system, the caretaker convention is ultimately mostly voluntary. It “depends on the willingness of the PM to act with restraint,” said Lagassé.
University of Waterloo constitutional scholar Emmett Macfarlane wrote in an email to the Post that there are no hard legal restrictions on what Carney can do, whether or not the “caretaker convention” applies, and that it’s down to “a question of democratic norms.”
“Mr. Carney faces a simple choice: have Parliament summoned, introduce a new Speech from the Throne, and command the confidence of the House, or request the dissolution of Parliament to call an election,” said University of Waterloo constitutional scholar Emmett Macfarlane said. in an email to the National Post.
Get all of these insights and more into your inbox by signing up for the First Reading newsletter here.