“Mandates” from the People
“To say that the Parliament of Canada, which derives its powers from the people, after a solemn pledge has been given to the people on a matter which is of deep concern to them, is released from this pledge the moment the people have elected it, is for Parliament itself to create a precedent which would be subversive of parliamentary institutions.”
Perhaps no statement more sharply etches the political ethics framing an electoral mandate than the above words, addressed by Prime Minister King to the House of Commons seventy-five years ago.
The concept of an electoral mandate is so enshrined in the belief system of Canadians that it is part of our unwritten Constitution. A huge part of our public debate concerns the sanctity of pledges given to gain electoral office, and whether or not they are honoured.
Because governing is the most serious work anyone can undertake, the conditions of employment, for a democratic society such as ours, are grounded in trust. On one side, this involves voters who entrust power to duly elected representatives, and on the other side, the trustworthiness of those elected. What you say you’ll do during the bargaining session of an election campaign, when those wanting votes appeal to those with votes to give, has to be honest. If it is dishonest, the exercise is a sham and democracy becomes a fraud, or as our longest-serving prime minister put it, “subversive of parliamentary institutions.”
The bargain struck at the ballot box is a democratic contract based on performance promised and undertakings given. This pledged agreement is so central to the legitimacy of those governing that we dignify it as an “electoral mandate” — not a “wish list,” but an order to perform according to the election-time negotiation and authorization of a particular course of action.
However, nothing is more encrusted by self-interested interpretation, enshrined in elusive parliamentary doctrines, enriched by constitutional fiction, or politically fatal to get wrong than our Canadian concept of a “mandate” from voters.
British Columbia’s Costly Lesson about Electoral Mandates
In the summer of 2011, British Columbia voters told their government not to “harmonize” the province’s sales tax with the federal government’s goods and services tax. Fifty-four percent of 1.6 million voters cast mail-in referendum ballots during June and July rejecting harmonization. By this date, Ottawa had somehow managed to spend $1.6 billion helping British Columbia’s administrative changeover to the combined taxes.
Opponents of referendums held up this result as proof that “people are resistant to change” and why ballot questions are thus a bad thing. Globe and Mail editorial writers in Central Canada derided the outcome as “government by plebiscite.” On our West Coast, however, British Columbians were more attuned to the working of their democracy. The issue had a history.
Two years earlier, during the 2009 provincial election campaign, Liberal leader Gordon Campbell told voters he had no plan to introduce a harmonized sales tax: “It’s not on my radar.” Two months after winning a majority government Premier Campbell announced that harmonizing the provincial and federal taxes was exactly what his government was going to do.
The reversal provoked outcry from political opponents, news media, and British Columbians at large. Their ire arose from Campbell’s dishonesty with voters about harmonization and his betrayal of his government’s electoral mandate. The electorate had been duped into voting for his party’s candidates, giving Campbell’s Liberals authority to govern on the pledge of no tax harmonization. B.C. Finance Minister Kevin Falcon openly acknowledged the moral conundrum created by reversing an explicit electoral mandate conferred by voters.
It got worse. That autumn documents surfaced revealing that British Columbia’s Liberals had HST-related plans prior to the 2009 election, contradicting their campaign statements in the spring. Campbell’s approval rating plummeted to 9 percent, a record low. Minister of Energy, Mines, and Petroleum Resources Blair Lekstrom resigned over “fundamental disagreement with the B.C. Liberals on the harmonized sales tax.” Rumours indicated the premier was losing the support of more ministers. At the start of November, Gordon Campbell addressed British Columbians from the safety of a television studio to announce he was resigning as premier.
Meanwhile, a referendum was in the works. Amid the outrage over the violated electoral mandate, former B.C. premier Bill Vander Zalm launched a referendum petition for a ballot question on HST under British Columbia’s Initiative Act. On August 11, 2010, Elections BC confirmed his campaign had succeeded in clearing all procedural hurdles. Now the provincial government had to hold a referendum on the tax issue. Business organizations supporting HST went to court to challenge Vander Zalm’s petition. Elections BC kept the referendum process in dramatic abeyance until the case was decided. On August 20, B.C. Chief Justice Robert Bauman ruled Vander Zalm’s petition opposing HST was valid and that Elections BC had been correct to approve it. That is what produced the 2011 referendum for British Columbians to decide the fate of their sales tax system.
Meanwhile, in her campaign to replace Gordon Campbell as Liberal leader and premier, the province’s former education minister, Christy Clark, said she wouldn’t proceed with blending the provincial and federal sales taxes if she won. By December 2010, believing the upcoming referendum would reject sales tax harmonization, Clark advocated cancelling the vote so that, instead of a verdict at the ballot box, a free vote in the legislature could settle the question. “Let our MLAs do their jobs and let our MLAs vote down the HST,” she said. “Do it by March 31 and get it over with and get on with life in B.C.”
However, after she became premier, the Liberals proceeded with HST, despite Christy Clark’s statements when seeking the leadership that she didn’t intend to blend the two taxes. She now campaigned for harmonizing the two sales taxes. As the province readied for the referendum, which would be conducted by mail, the Liberals warned of the high cost of returning to separate GST and PST systems. In April 2011, Premier Clark launched a province-wide “engagement initiative” to hear British Columbians’ ideas for how to “fix” the HST. Mostly she learned the Liberals faced plummeting support for being two-faced about HST.
To counter this, Finance Minister Falcon tried bribery. If British Columbians would vote to keep HST, he promised, he’d drop the sales tax rate by 1 percent on July 1, 2012, and by another point in 2014. Why stop there? The provincial government next promised to mail vote-enticing “transition payments” of $175 per child to families with children and $175 for low- and middle-income seniors. It was money they’d only get if harmonization took place. Translation: we’ll pay you to vote Yes.
After Elections BC announced on August 26 that 55 percent of voters favoured abolishing the HST, the Liberal government proceeded to reinstate the two-tax GST/PST system.
“We are better off for having had this process,” said Premier Clark, “whatever the outcome.” The premier was putting a positive face on things, to be sure, but she was right: the province was better off clearing the air on the principle of combining two sales taxes into one, and more profoundly, restoring integrity to B.C. public life in terms of political promises, electoral mandates, trust of the people, and consent of the governed. Finance Minister Falcon acknowledged, “We should have stopped and had that discussion with the public first before we made that decision to go forward. We never fully recovered from not having done that.”
The B.C. government repaid Ottawa its $1.6 billion — only part of the price tag for misleading electors and violating its electoral mandate.
Canada’s Repudiated Mandate for Electoral Reform
On October 19, 2015, when a majority federal Liberal government was elected, the party’s “campaign platform” — the metaphorical stage hammered together from campaign promises upon which the party’s leader and candidates “stand for office” while pledging to implement such measures if elected — was translated by constitutional custom into an “electoral mandate.” The sovereign people of Canada had given powers of state to identifiable individuals for specified purposes — one of them clearly being to change the system for electing MPs.
In addition to speeches and brochures, the 2015 election campaign included websites through which the country’s parties outlined, for millions researching the best recipient of their vote, the programs and policies they promised to deliver if elected to govern. The Liberal Party’s site, highlighting its “Real Change!” theme, was explicit: “We are committed to ensuring that 2015 will be the last federal election conducted under the first-past-the-post voting system. Within eighteen months of forming government, we will introduce legislation to enact electoral reform.” The Liberal leader, now become prime minister, repeatedly affirmed this promise in public appearances, which was reassuring to many who’d voted Liberal for this specific reason, a party not otherwise their first choice.
The Liberals’ mandate was reinforced by throne speech alchemy at the opening of Parliament on December 4, 2015. Governor General David Johnston’s text, provided to him by the PM, outlined ways the government would implement its contract with voters, making the sovereign people’s mandate now Her Majesty’s, as well, through this ritual for formal sanctification of electoral promises offered and accepted. “To make sure that every vote counts,” confirmed the Crown’s spokesperson, “the government will undertake consultations on electoral reform and take action to ensure that 2015 will be the last federal election conducted under the first-past-the-post voting system.”
Prime Minister Justin Trudeau’s “mandate letter” to Maryam Monsef, minister responsible for democratic institutions, outlined what she had to do to fulfill the electoral mandate the Liberals had been granted by Canadian voters: “Bring forward a proposal to establish a special parliamentary committee to consult on electoral reform, including preferential ballots, proportional representation, mandatory voting, and online voting.”
The campaign promise to replace the electoral system because it was “unfair” had not been made by an ill-informed fringe group but by a major political party with institutional memory. Liberals knew (1) the timetable was tight for a new voting system to be in place for 2019’s election; and (2) during the prior decade in-depth work, including exhaustive public consultation, had already devised explicit alternatives to our first-past-the-post system.
For the first, Chief Electoral Officer Marc Raynard confirmed early on that the new voting system would have to be law by 2017 to complete the switchover in time for the 2019 election. Time was of the essence. That well-understood reality was why the Liberals, from the outset, had promised legislation “within eighteen months” of forming a government — April 2017 at the latest.
As to the second, the Liberals also knew Canadian-developed “proportional” systems were available and that they had to implement one — because that’s what they’d sought a mandate to do. Nationally, the Law Commission of Canada had completed a top-calibre four-year study, drawing from its extensive public consultation sessions across Canada and hundreds of briefs from electoral system experts, to recommend “mixed-member proportional” or MMP as superior to first-past-the-post. In British Columbia, Quebec, Ontario, New Brunswick, and Prince Edward Island, extensive efforts had likewise gone into devising better electoral systems, drawing from thorough public consultations and even constituent assemblies. Each had recommended a specific alternative, generally mixed-member proportional, to first-past-the-post. Research and study of suitable proportional electoral systems, at the cost of millions of dollars, was already a national asset. Well-developed Canadian alternatives to first-past-the-post were available to implement.
However, the PM directed his minister to start over from square one. She was only to see a parliamentary committee established that would “consult on electoral reform.” What could this mean? In May 2016, Minister Monsef underscored the government’s fundamental understanding of its electoral mandate, saying, “Our commitment to end the first-past-the-post system was clear” in the election and thus “the will of the people” is for a new electoral system to be implemented. But what followed wasn’t action based on that mandate; instead, the government proceeded to kill time at public expense and people’s inconvenience through open-ended consultations. The process appeared to be an effort to enshroud a clear mandate in meaningless clouds of unfocused possibilities.
Had commitment to “real change” been as real as Liberals held out during the 2015 election, the democratic renewal minister would have been asked to bring forward legislation to implement the mixed-member proportional system recommended by the Law Commission of Canada. Then this specific bill could be referred to a parliamentary committee for focused hearings, a precise report, and parliamentary debate on the committee’s recommendations in the course of enacting the measure and fulfilling the Liberals’ mandate. If the prime minister and his cabinet didn’t want mixed-member proportional, other options developed in Canada through extensive public consultation were also available. But one had to be chosen. That was implicit in the promise made during the election. Leadership requires making a choice and then making the best of it.
Once the Liberal government replaced its mandate to act with open-ended consultations, however, electoral reform drifted into a political twilight zone. The history of electoral system changes in Canada, from decades-long periods of operating experimentation with systems based on proportional representation, to significant protracted attempts to alter voting systems by deliberate consensus-seeking, made clear that Prime Minister Trudeau’s approach, whether innocent or intentional, would doom his oft-repeated pledge to Canadians.
Given our well-honed proclivities, consulting one another about electoral reform was an ideal formula for sucking Canadians into a swamp of paralyzing indecision, resulting in no electoral system change. Gradually, through mid-2016, the government shifted its concrete plan to replace the “unfair” voting system to a vague seeking of “consensus” about what to do.
The Liberals now claimed to want an informed consensus on diverse and complex electoral systems. But this consensus-seeking gambit stirred discussion without any contextual framework beyond the “unfairness” of the existing system. The parliamentary committee on electoral reform heard from hundreds of experts during 2016. Other MPs dutifully engaged citizens about electoral reform or sent questionnaires to constituents. All the while, Canada’s minister of democratic renewal was taking her own soundings with Canadians — even as she simultaneously had a parliamentary committee doing this work. In late August 2016, Monsef lamented that “no consensus was emerging.” Was this unfolding scenario a calculated effort to nurse the electoral system project beyond time available for action? Had the Liberals, like others before, decided a system that could elect them to majority government with only 39.74 percent of the popular vote wasn’t so flawed, after all?
Several Liberal MPs began to push a revisionist line that electoral pledges weren’t really meant to be implemented, just to start public dialogue on a subject.
By December, in the Commons, the minister for democratic renewal berated the all-party parliamentary committee for not recommending an alternate electoral system, something it had expressly not been asked to do. The committee recommended the government study electoral systems further, which was akin to asking Campbell’s to review other recipes for tomato soup. The report wasn’t even unanimous, with a couple of appendices expressing dissents and qualifications. Some of the MPs recommended a referendum to approve any new voting system once the government figured out what it should be.
In January 2017, Maryam Monsef was moved to a different portfolio. Rather than close down the now-functionless “Ministry of Democratic Renewal,” Prime Minister Trudeau handed the empty title to Karina Gould, who told Canadians that a series of town halls and online consultations had shown “a range of views” about replacing the first-past-the-post system. That, she stated, made it “evident that the broad support needed among Canadians for change of this magnitude does not exist.” She added, as if it had been ordained, that “electoral reform is not in my mandate.” That was the “mandate” as revised in a letter to the new minister from the PM, not the mandate as given by voters, the mandate she and her predecessor minister, as well as the prime minister and all other elected Liberals, had campaigned for and received to change the unfair electoral system.
In the Commons, Prime Minister Trudeau stated that a “lack of consensus” indicated there was no sense in proceeding, adding “a divisive referendum at this time is not what Canada requires.” Nor, he threw in, did Canada require “an augmentation of fringe voices” that could hold the balance of power in Parliament, one of the alarmist fears typically cited by those opposed to proportional representation. No apology was offered, no suggestion that a longer time frame was needed for the promised reform. Electoral system change under the Trudeau Liberals was dead. Its mandate violated, the Liberals would run for re-election in 2019 under a system they’d repeatedly condemned as “unfair” — statements seemingly attesting to their own illegitimacy as an “unfairly elected” Canadian government.
New Democratic MP Nathan Cullen, vice-chair of the all-party committee on electoral reform, called the renunciation of the electoral mandate a “cynical display of self-serving politics” and that “Mr. Trudeau proved himself today to be a liar.” Green Party leader and MP Elizabeth May, who’d also run the fool’s errand on which the Liberal government dispatched the hard-working committee of MPs, was “more shocked by the brazen reversal than anything else in my adult life.” Public protests erupted across Canada, petitions were signed, and letters sent in the thousands to Liberal MPs. A constitutional challenge to the first-past-the-post system, placed in abeyance when the Liberals promised and got a mandate to change the electoral system, was revived, with donations pouring in to support the legal costs.
Meanwhile, the very same first-past-the-post electoral system that Prime Minister Trudeau now decided to save, so that “fringe voices” could not hold the balance of power, had produced in British Columbia’s May 2017 election just three Green Party representatives in the legislature. They not only held the balance of power; they used it to oust the governing Liberals and install the NDP in office under a governing pact that includes a pledged 2018 referendum on a new electoral system based on proportional representation. At times irony is almost poetic.
How Elastic Can a Mandate Become?
Gordon Campbell broke his mandate on sales tax doing what he’d promised not to. Justin Trudeau broke his mandate on electoral reform by not doing what he’d promised he would. Both violated the voters’ trust that a leader would make good on promises given. Both provoked outrage from citizens saddled with top office holders who’d deliberately violated electoral contracts. Both had strong majorities in their legislatures, so there was no barrier in that department to prevent honouring their commitments.
Interpreting a mandate might in some ways be the winning party’s prerogative, but Canada is a democracy, not a dictatorship, a place where rule of law (including constitutional conventions that treat electoral mandates as being real) takes precedence over the self-interested whims of those wielding power. Opposition parties, political pundits and pollsters, special interest groups, and journalist commentators do their best to watch governments and juxtapose their actual performance with earlier election promises.
If voters fill the legislature with an avalanche of a party’s members, we accept this as overwhelming endorsement of its program and expect the government to take bold action. But what if a party just squeaks into office with a minority? Does that mean the people have given only tepid approval and that the government ought to go slow? We saw, when Prime Minister Pierre Trudeau governed from a minority position with support from the New Democrats, enactment of measures the Liberals had never campaigned for. It was the same with Ontario’s minority Liberal government under Premier David Peterson, who signed a specific agreement on measures to enact with NDP leader Bob Rae, their pact completely scrambling the “electoral mandate” doctrine.
As to just how “elastic” an electoral mandate can be, there seems to be a shifting pastiche of variables. First, the electoral system might result in large distortions between a party’s level of support with voters and the number of seats it gets in the legislature, a prevailing Canadian pattern. Second, the purity of an electoral mandate might get diluted by a minority government embracing policies of its political opponents to hold on to power, not what voters endorsed but what political manoeuvring engineers. Third, a government in Ottawa might face the impediment of having to implement its mandate through an unaccountable second legislative chamber whose appointed members, though lacking legitimacy as representatives of the people, thwart the legislated will of elected MPs in the Commons, something that doesn’t embarrass or confound governments operating within the framework of our single-chamber provincial legislatures.
A fourth source of confusion about the nature of an electoral mandate derives from whether the party in government outlined a detailed program to electors, or merely presented a slogan tying together several general propositions. If the former, such as the 223 specific Liberal Party promises in 2015, the government has a more precise mandate and its task is primarily one of implementation. If the latter, “It’s Time for a Diefenbaker Government!” in 1957, or “The Land Is Strong!” in 1972, the government has more latitude interpreting its “mandate” and might exaggerate a meaning, obscure passages, or invent new importance for a trite phrase.
Fifth is the wild card of changed circumstances. This can be played at any time to rationalize changing an electoral mandate, whether the new context is manifest to all, such as an outbreak of war, or a spurious excuse the public can’t test, such as allegations the public finances were discovered to be much worse than expected and therefore promised actions must be shelved.
Is the Mandate Doctrine Just a Fiction of Convenience?
To keep the machinery of government working and to sustain plausible parliamentary operation, we cling to the idea that a government, after gaining power by virtue of winning the most seats in a general election, and even if its popular vote was less than majority support in the country, has some kind of mandate to deal with any issue that comes up during the life of that parliament, provided it retains the confidence of the legislature.
Our country’s political scientists and journalists operate within this open-ended construct. Compliant politicians sustain it. Everybody shrugs and goes along because … well, the government does have the power — and because this mandate doctrine offers pragmatic cover for dealing with issues never debated or anticipated during the election.
Political scientists studying Canada’s general elections of 1974, 1979, and 1980 concluded in their book Absent Mandate that campaigns had become no more than horse races between contending leaders, and because electors lacked alternate policies to choose from, they couldn’t give a clear policy mandate to any government, nor judge its record appropriately when the next election came around.1 “The workings of the Canadian party system,” they found, “cannot produce any clear mandate for development of policies to deal with the country’s significant problems.”
The same conclusion was reached by political scientist Vernon Bogdanor, who wrote in The People and the Party System that a voter can at best give a judgment only “on the general political colour of the government” and can only rarely “make views felt on particular issues.”2 Adding further to this line of analysis, another political scientist, Jon Pammett, observed that although issues are important in campaigns and central to voting decisions for many Canadians, “these issues are infrequently defined with a degree of precision that might approximate public policy.” He concluded that “voting patterns based on issues are frequently not in any concerted direction” and that this causes “difficulties in trying to connect an issue mandate with any particular group of representatives.”3
Even if all parties outlined with impeccable precision policies on ten or fifty or one hundred issues, it would still be impossible to infer from voting results which policies had been approved and which rejected. That is why most parties seek to offend the fewest voters by pledging nothing more than is needed to win, and keeping pledges at the highest level of general abstraction. Occasionally, parties are even elected to office despite, rather than because of, some of their policies. Did Canadians really want a changed electoral system in 2015, or just the end of a Stephen Harper government?
A development not anticipated during an election might confound a stated policy of the party once in office, sometimes spawning an opportunistic change, even necessitating a complete reversal. So we go along with a watered-down version of the mandate idea. We hold simply that a government in office has received authority from the electorate in the most recent election to govern as it must and as it chooses before the next election — conditional upon maintaining the voting support of a majority of the people’s elected representatives in the legislature. We contrive to make the mandate doctrine a loose-fitting garment over a generously proportioned body, concealing bumps here, revealing some shape there, and generally giving, at a casual glance, the impression of having the whole thing covered.
“Responsible Government” Demands Some Kind of Electoral Mandate
However, the assertion that a government can go to war, amend the country’s Constitution, reverse an entire regime of trade policies or immigration programs, impose price-and-wage controls it said it wouldn’t, or cancel promised procurement of military equipment stretches the electoral mandate doctrine beyond reason. To reverse clearly promised policies made during the campaign that are, hence, part of the government’s general mandate challenges the very doctrine on which that government depends for its political legitimacy.
The idea of a government having a specified electoral mandate goes to the heart of responsible government. Without some kind of program, how can anyone follow the concert? The Official Opposition might be an institutionalized component of our parliamentary system, but unless there is a reasonably clear sense of what a government in power is expected to do, how can “holding power to account” be anything more than a freelancer’s field day? The campaign pledges, and the speech from the throne, offer at least a plot outline for the drama of democratic accountability.
Sometimes an election contains so many ambiguities and cross-currents that no party could truly claim an explicit mandate from it. But to hold that Canadian general elections resemble nothing more than politicians pushing empty wheelbarrows is to deny the essence of a democratic society and disregard that, quite often, enough is said clearly in bargaining for votes that must be taken as the pledged word of an individual reliable enough to become prime minister or premier, as was nailed by Nathan Cullen.
The overwhelming volume of legislation, former prime minister Arthur Meighen observed in 1937, comes not from a popular mandate but merely the routine working of government over the term of its life.4 Meighen stated that there was “no question of a mandate at all in the case of at least 98 percent of the measures” coming before Parliament, that virtually all matters could be routinely dealt with by the elected representatives under the general electoral mandate of the previous election.
Yet every now and then, as Meighen also observed, an issue of transcending national importance comes along, a measure that if implemented would “affect positive principle going to the root of our institutions,” for which no government in office can be said to have a mandate, and on which it would act at its peril without seeking some direction from the people.
The referendum, unnecessary for routine matters, is a tool for that special “2 percent” category of exceptional measures. Meighen believed the people had to be consulted on such exceptional measures through the ballot box. He saw a general election as the method for “consulting” the people, because like many others, he was slow to recognize the merit of direct voting on an issue. He conflated general elections with specific issue determination.
Difficulty in discerning a specific mandate from a general election really highlights the referendum as an appropriate mechanism for a democracy such as ours, in these cases, on three grounds: (1) the legitimacy of the government depends upon the consent of the governed, (2) the major issue of transcending importance hasn’t previously been addressed by the public, and (3) the government in office can’t be said to have an express electoral mandate to deal with it.
This conundrum of general elections and specific mandates is continuous. Our 1988 general election was fought extensively, but by no means exclusively, on the multi-dimensional issue of a Canada–U.S. trade treaty. The Mulroney government, championing the plan, was re-elected with a majority of seats. The Liberal Opposition introduced a motion contending the government lacked a mandate to proceed with free trade. Council of Canadians Chair Maude Barlow cautioned the PM not to go ahead because a “majority of Canadians voted for parties opposed to the free-trade agreement.”5 Paul Grant, a private citizen, responded that Barlow was “exhibiting disdain for democracy when it doesn’t suit her purposes.” Barlow would like to draw inferences from the “popular vote,” he said, but they would be “based on fallacious assumptions, namely that every vote for a Progressive Conservative candidate was a vote for the free trade agreement and every vote for another candidate was against it.”6
Debate over the people’s mandate in 1988’s election was aggravated by the electoral system’s distorting results of voting in our multi-party system and its inability to translate votes into seats in a manner honouring “representative democracy.” With the same electoral system still in place today, the outcry about “majority governments with minority support,” or “fake majorities,” cannot be confined to 1988 and Canada’s trade treaty with the United States. It endures and is increasingly raised by those wanting to challenge a course of action in the ambiguous aftermath of Canadian elections and our foggy doctrine of an electoral mandate.
People understand if extreme changes intervene that neither voters nor office seekers could have anticipated during the election. People will acknowledge the impossibility of proceeding as mandated if a leader candidly reviews why a pledge has to be varied, or its implementation delayed, because of a radically altered context. But to violate a promise without any cause beyond political self-interest and without any clear and sincere explanation breaks faith with the people by those in positions of authority. Trust is soluble in opportunism; power to govern that lacks legitimacy becomes tyranny.
Voters complain, based on experience and observation, that politicians promise anything to get elected, then break their promises once in office. That’s not always the case but is often true. Some political leaders act as if winning a majority of seats is a carte blanche “mandate to govern” and proceed to exercise power with little or no connection to pledges given during the election campaign.
A government asserting it has a clear mandate might, in fact, lack credibility, even legitimacy, should its leader defiantly justify a change of course by saying, or implying, “We can do this because we won the power to govern!” Especially if that’s said about an issue of overriding importance not even mentioned during the election, or that was pledged to be handled differently; such a brazen stance rips away the increasingly fictional veneer of the “electoral mandate” doctrine.
The Canadian catalogue of broken election promises began long ago. Conservatives, Liberals, Social Credit, New Democrat, Parti Québécois, United Farmers, Progressives, and Union Nationale have each formed governments and then failed to uphold commitments to voters. Election campaigns are such a grab bag of issues that it might not really be possible to separate from voting returns a clear mandate for, or against, a specific project. But whether the electoral mandate is stretched beyond recognition or shrinks to nothing, whether it’s allowed to slip into administrative oblivion or is dramatically broken, the political morality isn’t mystifying. Breaking promises erodes a government’s legitimacy.
All problems considered, more intelligent use of referendums would be good medicine for this “mandate” ailment of Canadian politics, and more compatible with our existing system of governance than other suggestions being advanced as cures.
Constitutional Underpinning of Referendums to Clarify a Mandate
All of which brings us to the constitutional underpinnings of interpreting how people vote. One of the denigrating raps against referendums — that this democratic exercise is mere “populism” — is advanced by those who seem to suggest that early use of ballot-box democracy in Prairie Canada was an unsophisticated expression of agrarian protest by hayseed characters and rural rubes. Such critics often contrast radical populism to “parliamentary sovereignty” doctrines from Britain to make their case that populist forms of participatory democracy are profoundly wrong for our country.
The truth, however, is that when the United Kingdom’s deep thinkers began to realize that more was needed to establish democratic government than constitutional stances against “monarchical sovereignty,” it was esteemed constitutional lawyers such as A.V. Dicey and major political leaders such as Prime Minister Benjamin Disraeli who argued for referendums.
Unlike plain-spoken Canadian farmers, high-born Albert Venn Dicey was educated at King’s College, Balliol College, and Trinity College. After his call to the bar, he taught law at Oxford and became an inaugural professor of law at the newly founded London School of Economics. Dicey emerged as Britain’s foremost jurist and constitutional theorist. The term rule of law had existed since the 1600s, but it was Dicey who popularized it and gave cogent rigour to the concept that no person is above the law, all are subject to the same laws, and such laws must be made openly by Parliament.
Dicey then came to grips with his country’s typical disorganization on the legal front. Britain’s criminal laws were scattered throughout dozens of dissimilar statutes, for example, and its constitution was no single written document but a hodge podge of acts and customs. He responded to this normal British muddle in 1885 with his landmark book Introduction to the Study of the Law of the Constitution, in which he expounded the principles he’d discerned to be part of Britain’s “uncodified” constitution. This seminal work made Dicey renowned for asserting the principles of “parliamentary sovereignty.”
The British parliament was an absolutely sovereign legislature, having the right to make or unmake any law. The freedom in which British subjects live Dicey pinned directly to the sovereignty of Parliament, and to impartial courts free from governmental interference. In harmony with this view of parliamentary sovereignty and to extend the importance of people living in freedom, Dicey then became the first strong advocate for referendums in the United Kingdom.
The central premise embraced by Dicey, and embedded in Canadian law and practice since the 1800s, is that referendums are compatible with parliamentary supremacy at our national and provincial levels. The common foundation of elected representatives in Parliament voting on issues and laws, and referendum verdicts by electors voting on major issues, is the power of sovereign people exercising free choice.
He discerned how “the people,” meaning the much larger British electorate that had now become enfranchised, needed to exercise their power not only through representative institutions but also through the machinery of direct voting on issues. Dicey observed that the strengthening of popular government brought the rise of political parties, and because of that, how the prior high-water mark of Commons power was receding. Intensifying party loyalties had transformed the doctrine of sovereignty of Parliament into a mere cloak for the authority of government. Real power no longer rested with MPs. It had passed over to the party’s leaders and organizers — the same transformation impacting Canada’s parliamentary system, with ever-accelerating steps, from the 1860s to the present.
This led Dicey to embrace the referendum. Parliamentary traditionalists, unable to recognize the deeper trends that he saw, attacked direct voting as something that would devalue the authority of Parliament. In response, Dicey identified this issue-voting role for citizens as an important new part of British political institutions. The unique advantage of the referendum for Dicey, notes Vernon Bogdanor, “lay in its being a democratic check upon the excesses of popular government” and therefore “an instrument which suited the spirit of the age.”7
If the referendum gave an electorate veto power over bills passed by Parliament, this would complete, in tandem with a broadly based electorate through significant extension to more people of the right to vote, the symmetrical transition required from absolute monarchy to constitutional monarchy. Until the eighteenth century, the monarch still had veto power over laws passed by Parliament. So now, reasoned Dicey, this power should pass to the electorate, finishing the process by which “the prerogatives of the Crown” would be transformed “into the privileges of the people.”8
A.V. Dicey set out three further reasons for referendums. A ballot-box verdict could be the means for giving “formal acknowledgement of the doctrine which lies at the base of English democracy — that a law depends at bottom for its enactment on the consent of the nation as represented by the electors.” Furthermore, the referendum would be a powerful weapon against “the wire-pullers in local constituencies,” for it denied the fundamental premise that victory in a general election yielded a mandate for specific legislation. Dicey envisaged referendums as “the one available check on the recklessness of party leaders,” although this would require citizen-initiated referendums because a ballot question wouldn’t readily emerge from a political system those same reckless party leaders controlled. In 2011 this reality was demonstrated in British Columbia when the ballot question on sales tax harmonization came about thanks to a citizen-initiated process, not something the government in power wanted.
And even before Dicey’s clarification of political theory, British Conservative leader Benjamin Disraeli in 1868 advanced a political realist’s claim that a government required a “specific mandate” for truly major change. Prime Minister William Gladstone sought to disestablish the Irish Church, a major step he’d not informed the country about during the election. Disraeli said that even if technically Parliament had power to so alter the character of England and her institutions, there is “a moral exercise of power as well as a technical, and when you touch the principles on which the most ancient and influential institutions are founded, it is most wise that you should stay your hand unless you have assured yourselves of such an amount of popular sympathy and support as will make your legislation permanent and beneficial.”9
Disraeli’s pragmatic doctrine of specific mandate was in turn adopted by others. Lord Salisbury said: “There is a class of cases, small in number and varying in kind, in which the nation must be called into counsel and must decide the policy of the Government. It may be that the House of Commons in determining the opinion of the nation is wrong; and if there are grounds for entertaining that belief, it is always open to this House [of Lords], and indeed it is the duty of this House, to insist that the nation shall be consulted.”10
This specific-mandate doctrine is grounded in the imperative that sovereign people be informed about a significant change to fundamental arrangements and have opportunity to give their deliberate consent. In 1901 Australians incorporated this concept in their constitution, requiring that a direct vote of the people ratify any amendment to the country’s constitution. In 1992 Canada reached the same stage of democratic development when statute law required that people be made aware of major changes to fundamental arrangements, in the specific case of the Charlottetown Accord, and render a deliberate verdict on the proposed change at the ballot box.
Criteria for Seeking a Specific Mandate
Apart from significant constitutional change, what other subjects ought to require a specific mandate? No definitive list could itemize all the issues that have to be submitted to a direct vote and others that must never be. Distinguishing between the ambiguous general electoral mandate a government has, and issues requiring more specificity from the electorate, resides in the domain of statecraft. These half-dozen criteria, however, extracted from our history and experience, might help guide the exercise:
To our detriment, we’ve generally underutilized one of democracy’s rewarding, if risky, instruments of governing — getting a specific mandate about a transcending public issue through a referendum. The risk is never to the people.