Ontario’s Flawed Standing Orders under a Hung Parliament

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.

Government formation: formal rules, informal customs

With the Ontario election underway, we’re back to discussing the rules of government formation in Canada.

Mark Jarvis has a useful summary of the rules here.

Hugo Cyr has a comprehensive discussion of the conventions here.

In addition to these resources, I’d highlight the following points.

The Premier stays the Premier until she resigns or is dismissed by the Lieutenant Governor. This is the reason that first ministers have the right to meet the legislature first, regardless of the results of an election. The Premier can always try their chance at meeting the legislature to demonstrate or regain confidence. The Premier can even do this if they know they’re going to lose a confidence vote. Until they resign, they remain the Premier and therefore have the right to test confidence.

The Lieutenant Governor, meanwhile, won’t dismiss a Premier unless they’ve lost a confidence vote, they still refuse to resign, and there’s an alternative government that can carry confidence. (Needless to say, that’s never happened in Canada.)

Now, it’s customary for Canadian first ministers to resign after an election is another party has won a majority of seats. And it’s also customary for first ministers to resign if another party has won a plurality of seats. But it’s not a constitutional convention that a first minister must resign if another party wins a plurality of seats during an election –despite what the Supreme Court suggested. In that situation, the first minister still has the option of trying to hold confidence by working with a third party. Here again, this is not all that common in Canada, but it’s possible.

This discussion may seem academic, but it’s important. As we’ve seen already in this campaign and in the last election in British Columbia, political parties will distort how our system of government operates for political gain or survival. If the Ontario election doesn’t result in a majority, the party that has the most seats will surely declare victory and argue that the ‘will of the people’ must be respected. However, the two other parties may be able to come to arrangement that would keep the party with a plurality of seats from governing. This may not be Canadian custom, but it is entirely constitutional. 

Don’t let any partisan tell you otherwise.

 

The Supreme Court and Constitutional Change: Veto Player or Forcing Function?

The Supreme Court’s ruling in Comeau was disappointing. When offered the chance to bring some balance between section 121 and provincial powers, the Court swung hard toward the latter. In a typically Canadian fashion, the interests of governments took precedence, and will continue to take precedence, over the interests of consumers. We shouldn’t be too surprised by this. The people are absent from the Canadian constitution. We are a country of Crowns and legislatures, regions and minorities, not a state with a sovereign, unified people. Ultimately, Comeau reflects this reality.

The interpretive problems with the Comeau ruling have been addressed by legal scholars (here and here) and a political scientist who specializes in the Court and the Constitution. I’m not qualified to comment on their analyses, but they’re fairly convincing to this lay reader.

What I can comment on is the Court’s approach to institutional change. As Craig Forcese noted yesterday, it’s hard not to notice that the SCC is encasing Canadian institutions in amber. The Court is becoming a significant status quo player when it comes to institutional change. (Dennis Baker and Mark Jarvis have a great book chapter on this issue in Macfarlane’s book.) While we might hope that the Constitution could be a living tree when it comes to how we govern ourselves, the Court is basically telling us that we have to accept that it’s a dead stump.

What’s the Court trying to accomplish here?

One answer is that the SCC has an inherent status quo inclination. I could accept this if the Court demonstrated a similar inclination when applying the Charter.

Another possibility is that the Court thinks that institutional change should come from politicians, not the judiciary. If that were the case, one would expect the Court to be more accepting of incremental changes forwarded by governments and legislatures. I don’t think we’ve seen much of that.

A third possibility is that the Court is subtly telling us that we can’t avoid constitutional negotiations forever –that these rulings are meant to serve as a forcing function. Seen in this way, the SCC is saying that it won’t make the changes that should be properly negotiated between governments. Paradoxically, the Court may be using its power as a status quo player to force Ottawa and the provinces to accept that they will need to reopen the constitution if they want to address Canada’s constitutional deficiencies.

If this is what the SCC is doing, then there’s something valuable about their approach. Allowing our institutions to drift along isn’t setting Canada up for success over the long-term. Indeed, one of the biggest threats to Canadian prosperity may be the inability/unwillingness to update our institutions to meet contemporary problems. Otherwise, as Fukuyama warns us, we face the prospect of political decay and its rather serious consequences.

I’m probably wrong about what the SCC is doing. Maybe the Court is simply being craven or pragmatic. But I hold out some hope that the justices aren’t simply being veto players for the sake of being veto players.

 

The United Kingdom’s weakened war prerogative convention

So, I was wrong: Prime Minister May didn’t feel bound to hold a parliamentary vote before ordering air strikes against the Syrian regime.

I expected that, in light of the August 2013 precedent when the UK Commons voted against air strikes against the Syrian regime (see my Parliamentary Affairs article), the scope of the British convention on consulting the lower house would have included these latest air strikes.

That’s evidently not the case.

The contrast between Cameron’s failed August 2013 vote and May’s decision not to hold a vote is quite striking. Cameron proceeded with significant caution, and he backed down immediately when the Commons voted against his motion. May is accepting notable political risk by circumventing the Commons, but there’s also a good chance she won’t face any consequences.

Come Monday, May will likely argue that she’s still acting within the parameters of the convention that gelled from 2003 to 2013-2014. There’s very little the opposition can do to punish her if they disagree, so her interpretation will stand.

(Update: May argues that her actions fell within the convention, given that the operation consisted of an emergency.)

But that doesn’t mean the convention has been left unchanged.

Looking back at Cameron’s statements from 2014, this one stands out: “it is important that a Prime Minister and a Government reserve the right to act swiftly without consulting the Commons in advance in some specific circumstances—for instance, if we had to prevent an immediate humanitarian catastrophe or, indeed, secure a really important, unique British interest.”

In explaining her decision, May echoes the exceptions Cameron highlighted:

“The speed with which we are acting is essential in co-operating with our partners to alleviate further humanitarian suffering”

“I have done so because I judge this action to be in Britain’s national interest.”

May is framing her action as a response to chemical weapon use, a humanitarian catastrophe, a British national interest, and an emergency. In that sense, she might be said to be acting within the narrow limits that Cameron outlined in 2014.

Yes, the convention will still apply to the deployment of ground forces on combat operations or long-term air/sea combat missions. But its hard to see how future governments could not use this precedent to avoid a vote on limited air strikes or strikes from the sea.

Canadian Government: A Pedantic Style Guide

Governments don’t have mandates, they hold confidence.

Governments aren’t directly elected in Canada, they’re formed or continue governing based on their ability to hold the confidence of the elected house of the legislature.

 

Governments don’t have terms, they have parliaments/legislatures and length of ministries.

The life of governments is determined by their ability to hold or regain the confidence of the elected house of the legislature. A government can thus span multiple parliaments and a single parliament can have more than one government. First ministers can also dissolve the legislature pretty much at will. Equally important, governments only end when the first minister resigns or is dismissed by the Crown. So, an election doesn’t begin a governmental ‘term’, nor does a dissolution of the legislature end it.

When speaking of how long a first minister led the government, we should speak about the duration of their ministry, or if they’ve headed more than one government, ministries.

 

Prime Ministers and Ministers don’t sit (i.e. sitting Prime Minister), they serve.

Ministers are servants of the Crown. This is a capacity distinct from the seat they hold in the legislature.

 

There are no interim Prime Ministers, only interim party leaders.

Interim implies that someone who is temporarily holding an elected position and that they themselves were not elected to that position. They’re holding it in anticipation of an election. Prime Ministers are appointed.

 

There is no Prime Minister-elect or Premier-elect. The technical term is Prime Minister-designate or Premier-designate

Since first ministers are not elected, but appointed by the Crown, we use designate to mean that the Crown has commissioned them to form a government but that they have not yet been sworn to office (h/t Richard Berthelsen).

 

Ministers are accountable to Parliament for their responsibilities, they are not responsible to Parliament.

Ministers are responsible for the exercise of executive powers and are accountable to Parliament for decisions and actions that fall under their responsibilities.

 

The Governor General is not the head of state, the Queen is the head of state (if you absolutely must use that term.)

The Queen personifies the state in law. She is the legal personality of Canada. In that sense, she holds the highest office of the Canadian state, what we would call the head of state, or more simply ‘the Sovereign’. As the Queen’s representative, the Governor General is always one rank below the Queen and thus not the head of state.

 

Parliament is not synonymous with the House of Commons. 

Parliament comprises the House of Commons, the Senate, and the Queen. The House of Commons, the elected lower house, is one part of Parliament.

 

The Crown does not dissolve a legislature without advice. 

Although the Crown’s power is required to dissolve a legislature the Governor General or a Lieutenant Governor will not do so without the advice of a first minister. As a result, it is incorrect to imply that the Crown will force a new election if no party can hold confidence or parties can’t get along, etc. The Crown must wait for a first minister to advise dissolution.

 

Supreme Court justices are appointed, not nominated. (h/t Emmett Macfarlane)

Supreme Court justices are appointed by the Governor General on the advice of the Prime Minister. While they may go before a committee of parliamentarians before their appointment is formalized, this is not akin to the legislative nomination process where the committee can exercise a formal veto on the Prime Minister’s choice.

 

Parliament does not ratify treaties. 

The power to sign and ratify treaties belongs with the executive. The House of Commons may be asked to express its support for a treaty through a vote and Parliament is often required to legislate to give effect to a treaty. But it is the executive that ratifies the treaty.

 

Refer to parliamentarians as parliamentarians or legislators, rather than lawmakers. 

Crafting legislation is only small part of what parliamentarians do. And for the most part, parliamentarians have limited influence over government bills. Private member’s bills, moreover, account for small portion of Parliament’s legislative agenda. Legislation is crafted by the executive, with parliamentarians scrutinizing bill tabled by the government. Describing parliamentarians as lawmakers distort who is crafting most laws.

 

Should we refer to a government, administration, or ministry?

Technically, first ministers lead Her Majesty’s government. In the United Kingdom, in fact, it’s not uncommon to refer to the executive as Her Majesty’s Government. The vast majority of the executive, moreover, is comprised of public servants who are non-partisan employees of the Crown. During the Harper years, this led to consternation about the term ‘the Harper government’.

Since the first minister heads the government as the Crown’s highest ranking servant, it is acceptable to say ‘Harper government’ or ‘Trudeau government’. While public servants are non-partisan, they are expected to loyally implement the policies and directives of the Crown’s ministers.

What about administration? During the colonial era, one could speak about the ‘local administration’ to differentiate colonial officials from the government in London. Today, administration is more likely used because that’s how we refer to American presidencies. (Also, in the United States, the government does not refer to the executive alone, but to Congress and the courts, too.) Accordingly, administration should be avoided.

Another reason to avoid administration is that there is a better term: ministry. A ministry is the group of ministers led by the first minister that advises the Crown. If one is looking to avoid using government, then ministry is the correct term, and preferable to administration.

 

Will the Commons vote on Mali?

Canada is sending helicopters to assist the UN mission in Mali.

After the Trudeau government announced the mission, members of the Conservative opposition demanded that the operation be put to a vote in the House of Commons.

I’ve written about why holding military deployment votes is a bad idea here. I’ve also shown that, in Canada, the practice of holding these votes largely benefits the executive. And, in an article comparing Canada and Germany, Patrick Mello and I have shown that the votes do lead to less debate and deliberation in Parliament, particularly in Canada.

Leaving all that aside, though, there is the question of whether holding a vote on Mali would be in keeping with the practice followed by the Harper government.

Based on the Harper record, and the Trudeau government’s record thus far, it would not be breaking with the practice since 2006 to deploy the armed forces to Mali without a vote. From 2006 on, the Canadian practice has been to hold vote on combat missions. Although the Canadian helicopters that will be deployed to Mali will include armed Griffons, this does not seem to meet the criteria of a combat mission. Indeed, this helicopter deployment is far less likely to involve combat than the deployment of Special Operations forces to Iraq in August 2014 on advisory and assistance mission, which was not voted on by the Commons. (For those with short memories: the Harper government deployed the SOF in August 2014, then held a vote when fighter aircraft where deployed to the conflict in a role that explicitly involved a combat role.)

So, if the issue is respect the practice that has been followed since 2006, the deployment of helicopters to the UN mission in Mali shouldn’t require a vote.

 

Canada’s constitutional cowardice

I was pleased to see this Konrad Yakabuski op-ed in the Globe today.

As readers of this blog and most of my op-eds over the past five years know (see here, here, and here, among others), Canada’s approach to royal succession has been an obsession of mine.

My underlying concern with the royal succession case are well-articulated by Yakabuski: Canada’s handling of this question betrays a willingness avoid the constitution at all costs, even if that means breaking with past precedent, fudging the distinction between the Crown in right of Canada and the Crown in right of the United Kingdom, and sowing the seeds of future controversy around the pre-eminent institution of the Canadian state.

As someone who studies institutions and how they change, though, I realize that Canada’s handling of the monarchy has always been political and shaped by institutional constraints.

From the end of the First World War to 1978, Liberal governments used the Crown to advance a nationalist agenda. The Crown was progressively Canadianized and cast as a separate institution from the British monarchy. Like the flag and other national symbols, it was important to forge a distinctly Canadian Crown to advance the idea of an independent Canada.

After the constitution was patriated in 1982, however, there was no more need to use the Crown to push Canadian independence. Canada’s standing as a wholly sovereign state was provided by the Canada Act, 1982. That project was now complete and the Crown was no longer needed as a vanguard of Canadian sovereignty.

Instead, the Crown became something to be diluted or downplayed. The Constitution Act, 1982 included a Charter of Rights and Freedom and constitutional amending formula that threatened to make the Crown a source of misery for the federal government. Charter challenges involving the Queen were one headache (see the recent challenges to the citizenship oath), but the bigger problem has been that changes to the monarchy require the unanimous consent of the provinces. In the royal succession case, the Canadian government and federal Parliament decided that it was better to deny that Canada has any laws for determining its head of state rather than risk having to ask the provinces to approve change to that law. (For those who deny that Canada ever thought it had laws of royal succession, what law of succession was Bill C-60 of 1978 referring to when it said the Queen’s sovereignty would be passed down according to law?)

Simply put, the federal government will twist and contort the meaning of the Crown in whatever way necessary to avoid a conflict between monarchy and the Charter, or the prospect of having to engage in constitutional negotiations with the provinces.

The courts have gone along with this strategy since 1982 and I don’t expect them to stop anytime soon. Judges aren’t politicians, but they’re politically aware. I doubt any of them will force Canada into a unanimous constitutional amendment over something as inconsequential as ending male primogeniture in the laws of royal succession.

Still, as Yakabuski notes, there’s something pathetic about our inability to confront our constitution. If we can’t even debate who should be our national figurehead, how are we going to handle larger constitutional problems down the road?