Evidence Re Fixed Election Date Legislation Submitted to the House of Lords Select Committee on the Constitution

Abstract

This paper was submitted to the House of Lords Select Committee on the Constitution by invitation to comment on the proposed Fixed-Term Parliaments Act. It addresses only the Canadian experience with fixed election date legislation.

As of September 1, 2010, the federal government and eight of the thirteen provinces and territories in Canada have enacted similar fixed-term Parliaments legislation. Such laws are referred to in Canada as “fixed election date” legislation because they generally set a specified date for elections at four year intervals, rather than imposing a limit on the duration of Parliaments as the proposed Fixed-Term Parliaments Act does. All such laws have limited legal force because they explicitly preserve the powers of the Governor General or the Lieutenant-Governor (in the case of the provinces) to dissolve Parliament. Only a constitutional amendment can alter the Governors’ powers.

As a further result of the continued constitutional power of the governors over dissolution and the lack of power to alter this through ordinary legislation, fixed election date legislation in Canada is little more than a statement of political intention. This has been demonstrated most clearly in the federal case where the Prime Minister ignored his own fixed-election date legislation which provided that a general election was scheduled for October 2009. Instead, the Prime Minister sought and received an early dissolution from the Governor General in September 2008 for an election the next month. The legality of this course of action was later confirmed by the courts. At this point, the federal fixed election date legislation is widely considered to be a failure.

The experience of fixed election date legislation in the provinces and territories has differed from the federal experience, in large part due to the existence of majority governments in those jurisdictions. As of September 1, 2010, six elections have been held under a fixed election date regime. The conventional wisdom is that fixed election date legislation is working in the provinces/territories but has not gotten off the ground at the federal level. However, I believe that this account is too simplistic. A deeper analysis reveals that proponents of fixed election date legislation overpromised and underdelivered. Moreover, even where they appear to be working, fixed election date laws may be contributing to the continuing degradation of the democratic body politic in Canada.

Fixed election date legislation grew out a general malaise with Canadian politics in the 1990s captured in a phrase well-known to observers in this country: “democratic deficit.” Legislation was supposed to increase transparency, level the political playing field, improve governance and increase voter turnout. At best at this early juncture, the results are mixed. The legislation has certainly not increased voter turnout nor has it increased public faith in the electoral system. It creates the potential for future clashes between the Governor General and the Prime Minister, and between their provincial counterparts. For those considering fixed-term Parliaments, the Canadian experience with fixed-election dates produces two questions. What is the problem for which fixed-term Parliaments are intended to be the answer? Might there be other problems created by fixed-term Parliaments?

Keywords: Elections, Parliament, Canada, Legislators, Constitutional Law, Constitutional Conventions, Fixed Election Date, Legislation, Parliamentary Reform, Democratic Deficit