A Prime Minister who isn’t in Parliament?

Mr Carney could head the Canadian government without being an MP. How does that work?

Mark Carney has entered the Liberal leadership race. His candidacy raises a question: Can he be Prime Minister without having a seat in Parliament? Yes, he can, but he would be expected to become a member of Parliament (MP) as soon as possible.

To understand why he could be appointed Prime Minister without initially being a parliamentarian, we need to look at the history of the first minister, the constitutional and legal status of the office today, and the constitutional conventions that surround the Prime Minister under responsible government. Simply put, the historical legacies of our institutions still matter and can lead to some odd situations.

As with most things Westminster, starting at the beginning is helpful. Parliament, Cabinet, and the courts all originate in the curia regis, the royal court established by the Norman following their conquest of England. The curia regis performed what we would today classify as the state's executive, legislative, and judicial functions. At the time, distinguishing them wouldn't have made much sense since it was all the King's business.

In the 13^th and 14^th Centuries, the curia regis was divided into more distinct parts. Several courts grew out of the curia regis, including the Commons Pleas and King’s Bench. A larger council of nobles, what we now recognize as the House of Lords, began convening alongside representatives of the shires and boroughs, the House of Commons, to supply and petition the King. The King’s smaller group of advisors and councillors became known as the Privy Council around this time, too. This separation between the Parliament and the Council, and the later need to bring them back together somehow, is the essential story here.

Parliament and the Council evolved according to their particular functions. Over time, the former became not only a body that funded the Crown but also the legislative power of the realm. We see this transformation most explicitly during the reign of Henry VIII when the Parliament legislated the establishment of the Church of England. That cemented the constitutional reality that the King acting on the advice and consent of his Parliament, the Crown-in-Parliament, was the supreme sovereign authority of the realm.

The Privy Council, meanwhile, was busy running England: executing the law, administering the affairs of state and the royal household, and developing what we now term policy. Henry VIII's council provides us with a good snapshot here again. As the holder of many ‘great offices of state’, Thomas Cromwell was a member of the Council and the guy who managed the realm under the King's direction (until he was beheaded.)

The early Stuarts, James I & VI and Charles I, tried to rule without Parliament in the 17^th Century. That didn't sit well with those who sat in the occasional parliaments that were summoned. Coupled with religious conflicts, the confrontation between the Crown and Parliament led to the English Civil War, which resulted in the execution of Charles I. When his son, Charles II, was restored in 1660, another attempt to marginalize Parliament was made, but it didn't last. Charles II’s successor and brother, James II, was deposed by William and Mary of Orange, who were invited to seize the Crown by disgruntled parliamentarians. Following this Glorious Revolution of 1688, Parliament established its legislative supremacy of the Crown. Governing without Parliament wasn’t feasible since the Crown could no longer get money and essential authorities without the legislature.

In the following decades, monarchs recognized the need for a minister to manage Parliament. Since getting supply was the main challenge, the First Lord of the Treasury emerged as the office held by the Crown's 'first minister'. They were tasked with organizing the informal subset of the Privy Council who did the actual work of governing: the Cabinet. As importantly, this ‘prime’ minister was expected to get the Crown's business through Parliament. Since one had to know Parliament to navigate Parliament, it made sense for this Prime Minister also to be a parliamentarian. As a practical matter, therefore, the First Lord of the Treasury was regularly held by someone who sat in Parliament. Yet the Prime Minister remained an appointment to the Privy Council and Cabinet as the First Lord of the Treasury.

In the 19th Century, prime ministerial appointments gradually ceased being made at the Crown's discretion. The expansion of the franchise and the modern party system meant that the Crown increasingly appointed leaders of factions who had the support of the House of Commons. This eventually became a constitutional requirement, what we now call the confidence convention. The Crown was, therefore, expected to appoint Prime Ministers who were best placed to command the confidence of the Commons. This led some commentators to argue that Cabinet had become the executive committee of Parliament. Formally, however, Parliament and the Privy Council remained separate institutions. The Prime Minister did not technically advise the Crown as a parliamentarian, but as a Privy Councilor.

In Canada, the distinction between the Privy Council and Parliament is provided by the Constitution Act 1867 (CA1867). As outlined in Part III of the CA1867, a Canadian Privy Council was established for Canada at confederation. Since Part III deals with the executive power, we can say with certainty that the Canadian Privy Council is separate and distinct from Parliament under the constitution. Indeed, Parliament is dealt with in the next part of the CA1867, which defines the legislative power. To ensure that the British conventions fusing the executive and legislature were followed in Canada, however, the CA1867’s preamble states that we have a constitution "similar in principle" to the United Kingdom.

Canada's Prime Minister doesn't hold a formal office like the First Lord of the Treasury. Our Prime Minister is more free-floating. Since the Constitution Act 1982 and various statutes recognize the office, we might argue that the Prime Minister is somewhat statutory and a legally defined office. Fundamentally, though, the Prime Minister is a creature of convention. The holders of the office are Privy Councilors, but unwritten conventional rules broadly define the office, including their powers over Cabinet and the wider executive.

One of those unwritten rules is that the Prime Minister should be a parliamentarian. We've discussed the origins of this rule already. When the Prime Minister first emerged, it was because the King needed his chief minister also to be able to navigate Parliament successfully. Today, the rule reflects that one of Parliament's main jobs is to hold the executive to account. As the head of government, the Prime Minister should be in Parliament to answer for the executive. This rule, however, is flexible. Since political parties may choose leaders who are not parliamentarians, and because a Prime Minister might lose their seat during an election, the rules hold that they should be a parliamentarian or working to become one. This usually involves running in a by-election at the earliest opportunity. Arguably, if a Prime Minister knows a general election is right around the corner and a by-election can’t be held, they might wait.

I've been using the term ‘parliamentarian’ thus far because a Prime Minister might sit in the upper house rather than the lower one. Many British Prime Ministers sat in the Lords in centuries past, and we've had two Senators serve as Prime Ministers in Canada. I don't think the Senate would be suitable anymore. British Prime Ministers ceased sitting in the Lords because it was unelected. This is also why we’ve only had two Prime Ministers from the Senate. Today, the convention almost certainly demands that Prime Ministers sit in the Commons. This ensures that they are elected, held to account by an elected opposition, and sit in the confidence chamber.

But we can't rule out a Prime Minister sitting in the Senate as a stopgap. Turning back to Carney, it's possible to imagine that he might sit in the upper house in anticipation of the general election. I'm unsure of which would be worse, constitutionally and politically: Prime Minister Carney sitting in the Senate or remaining outside of Parliament entirely. My sense is that it’s better to wait for an election than be appointed to the Senate, even temporarily. If this is indeed the case, it reinforces the Prime Minister should be an MP or seeking to become one, rather than a parliamentarian in the broader sense.

In sum, the Prime Minister doesn't need to be a parliamentarian because the Prime Minister is formally a Privy Councilor and, hence, an executive office. Convention demands that the Prime Minister be a parliamentarian or seeking to become one, however. More realistically, convention requires that the Prime Minister be an MP.

Should Carney become Prime Minister, we may be faced with an interesting situation: a government desperately trying to keep the confidence of the Commons with a Prime Minister who isn’t in the House. If that does happen, we can thank the particularities of our historical institutions.