The Standing Orders of Ontario’s legislative assembly have a notable flaw and this election may expose it.
The flaw is this: under section 44 of the assembly’s Standing Orders, the opposition can’t hold a non-confidence vote without the governing party’s agreement. This rule is likely meant to provide some stability, but it goes against a core tenet of responsible government: namely, that the government should hold the confidence of the elected house of the legislature. If the government has a veto over when a vote of non-confidence can be held, the executive may be able to indefinitely delay any opposition effort to make the ministry fall. This is particularly problematic during a hung parliament, when the opposition holds more seats than the governing party.
We can contemplate of a number of scenarios where this rule will cause problems once the election results are announced.
Imagine, for instance, that the Conservatives win a plurality of seats and Premier Wynne resigns on election night, before negotiating any kind of agreement with the NDP. In this context, the Lieutenant Governor would likely call upon Ford to form government.
Once that happens, the Liberals and NDP would have limited options to bring down his government and replace the Conservatives without an election. Their best bet would be to make that government fall as part of the reply to the throne speech, but it’s unclear if voting against the throne speech counts as a matter of non-confidence under the definition found in the Standing Orders.
Of course, constitutional convention would hold that defeating the throne speech or a money bill should automatically count as a confidence vote, but the Standing Orders create ambiguity that could be exploited by a government. And even if the reply to the throne speech does obviously count as a matter of confidence, this implies that the Liberals and NDP will have a short amount of time to negotiate some kind of agreement, unless they are willing to risk another election.
Were the government voted down on the throne speech, the Lieutenant Governor would likely call upon the leader of the party the second largest number of seats. Yet it’s possible that the Lieutenant Governor would accept advice to dissolve the legislature if the two smaller parties don’t have a clear plan to hold confidence, particularly if a few months have passed since the election.
In a proper parliamentary system, the opposition parties wouldn’t have to depend on the throne speech alone to defeat the government shortly after an election. Yet Ontario’s Standing Orders seem to give the opposition only one chance to get organized, negotiate a deal, and replace the government before the governing party can veto further attempts to withdraw confidence.