Queen Elizabeth, Britain’s politicians and public know rules for its minority government because they are written – B.C.’s Lieutenant Governor, politicians and public don’t because rules are unwritten

B.C. Party leaders should agree to written rules – as British MPs did in 2010 – making it clear when the legislature can be closed, what a vote of non-confidence is, when and how opposition parties will get a chance to govern, what will trigger next election etc.

As showdown over Speaker of the B.C. legislature continues, DWatch’s proposal to change to non-partisan, non-MLA Speaker is still the best solution (would be similar to B.C.’s non-MLA ethics and information commissioners, and AG and CEO)

FOR IMMEDIATE RELEASE:
Tuesday, June 20, 2017

OTTAWA – Today, with B.C.’s legislature finally opening in two days, Democracy Watch called on the B.C. party leaders and the Lieutenant Governor to agree on public, written rules for a minority government, as more than 80% of Canadians want and as Britain’s Parliament did seven years ago with its 110-page Cabinet manual. Agreeing on and writing down the rules now (and making them law as soon as possible) will help ensure the legislature runs fairly and democratically through to the next election.

The rules should make clear: when the legislature can be closed; what a vote of non-confidence is; when and how the opposition parties may get a chance to govern, and; when and how the next election can be called before the fixed election date (See Backgrounder below for the rules).

“Queen Elizabeth, Britain’s politicians and public know the rules for its minority government because its rules are written but B.C.’s Lieutenant Governor, politicians and public don’t because its rules are unwritten,” said Duff Conacher, Co-founder of Democracy Watch. “If B.C.’s politicians don’t agree to written rules for the minority government, several constitutional crises will very likely happen with politicians, lawyers and academics having ridiculous arguments, and the unelected, unaccountable Lieutenant Governor forced to make decisions, based on conflicting opinions about unwritten rules. Meanwhile, in Britain everyone will be following clear, written rules.”

“Nobody knows for sure what an unwritten rule says, and that’s why Britain, Australia, New Zealand and most other countries have written down their key constitutional rules,” said Conacher. “It’s clearly in the public interest that the rules be written down to stop unfair abuses of power by the ruling parties that will violate the rights of the legislature and the democratic will of the majority of voters right through to the next election.”

For example, Queen Elizabeth, Britain’s politicians and public all know that the only way an election can occur before the next fixed election date under Britain’s Fixed-term Parliaments Act 2011 is if at least two-thirds of MPs vote in favour of a motion to call an early election or if a resolution is passed that states the legislature has no confidence in the government and that resolution is not reversed within 14 days. Many commentators claimed Britain’s Prime Minister Theresa May called a “snap” election – she didn’t she proposed an early election and more than two-thirds of MPs approved her proposal.

In contrast, B.C.’s Lieutenant Governor, politicians and public do not know how the next election could happen – which gives the unelected Lieutenant Governor enormous, unaccounable power. The current rules in B.C., are unclear because they are unwritten constitutional conventions – even constitutional scholars disagree what lines they draw (and, as a result, a large majority of scholars agree they should be written down). The vagueness in the rules effectively allows the elected Premier and ruling party to abuse their powers and violate the rules, as the only way to stop violations is for the unelected, unaccountable Lieutenant Governor to decide that a violation has occurred and to try to stop the elected Premier from doing what they want.

Lieutenant governors in B.C. other provinces have almost never stopped a premier from doing whatever they want, and have allowed premiers to abuse their powers by not opening the legislature after an election, shutting it down arbitrarily for months, and calling snap elections in violation of fixed-election-date laws. The Governor General allowed Prime Minister Harper to call a snap election in 2008 in violation of the (too vague) fixed-election-date law, to prorogue Parliament in a very questionable minority government situation, and to declare many votes in Parliament as confidence votes even though they were clearly not confidence votes.

In Britain, Australia and New Zealand, political party leaders and MPs agreed years ago to clear, public constitutional rules to ensure the legislature runs fairly (especially during a minority government) for all the parties, and for voters. Most countries in the world also have clear, public rules written down in laws or their constitution concerning how the legislature runs and how elections happen.

As well, a survey of more than 2,000 Canadians by Harris-Decima in November-December 2012 showed that 84% of adult Canadians want enforceable rules to restrict key powers of the Prime Minister and provincial premiers.

The Governor General also said last August in an an interview with the Hill Times that he thought these unwritten constitutional conventions should be written down.

After initial rules are enacted into law, the B.C. legislature should, as the legislatures in Britain, Australia and New Zealand have, examine and enact other fairness rules to ensure the legislature and MLAs can hold the government accountable. The rules should cover the following key areas: when the legislature is required to open after an election; which party has the right to attempt to govern first after an election; what can be included in omnibus bills; the freedom and powers of individual politicians to vote how they want on resolutions and bills; how members of legislature committees are chosen; what a Cabinet can do during an election campaign period until the next Cabinet is chosen.

As the showdown over the Speaker of the B.C. legislature continues, Democracy Watch again called on B.C. party leaders to change the province’s Constitution Act (section 37) so that the legislature has a non-partisan, non-MLA as Speaker. The change would take at most a month, as the Standing Orders of the Legislature (PDF) state in section 81: “On urgent or extraordinary occasions, a Bill may be read twice or thrice, or advanced two or more stages in one day.”

Establishing a non-MLA Speaker would be similar to the non-MLA B.C.’s legislature has already established for its other Officers of the Legislature – the Conflict of Interest Commissioner, Information Commissioner, Auditor General and Chief Electoral Officer.

In the interim any MLA could serve as Speaker, even an MLA from the likely NDP-Green partnership government, as they could vote to break any ties in favour of the government without violating any constitutional convention given that conventions are vague, unwritten standards (which is why they should be written down as clear rules – see details above).

Some commentators have claimed that the legislature must also have a Deputy Speaker – in fact, section 37(3) of the Constitution Act says that the legislature “may” choose a Deputy Speaker so there is no requirement.

“Politicians shouldn’t ever be in a position like the speaker of a legislature where they judge other politicians because they are in a conflict of interest when doing so, and can easily make decisions for partisan, political reasons,” said Duff Conacher, Co-founder of Democracy Watch. “To prevent bad political decisions by the speaker of the B.C. legislature, and because of the current seat-split, it is a great time to change to a non-partisan, non-MLA speaker for the legislature.”

At the federal level, former Speaker of the House of Commons Andrew Scheer was a great example in 2014 of why you don’t want a partisan politician as Speaker when he let fellow Conservative MP Paul Calandra off the hook for clearly violating the rules concerning answering questions during Question Period.

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
info@democracywatch.ca

Democracy Watch’s Democracy Watch’s Stop PM/Premier Power Abuses Campaign


BACKGROUNDER

8 Key Rules for Minority Government

  1. Even if the leaders of parties that represent a majority of members of the legislature do not indicate lack of support for the party that wins the most seats before that party’s Speech from the Throne, if they subsequently indicate lack of support for the Speech, the Lieutenant Governor will not allow the Premier-designate to prorogue the legislature before the Speech from the Throne is voted on by members of the legislature;
  2. If a majority of members in the legislature vote against the Speech from the Throne, the Lieutenant Governor will give the opposition parties an opportunity to govern (through either a formal coalition or legislative agreement) before calling an election;
  3. After the vote on the Speech from the Throne, the only vote in the legislature that shall be a vote of non-confidence is a vote on a motion that states: “The legislature does not have confidence in the government.”
  4. If opposition parties introduce a motion of non-confidence in the governing party at any time after election day, the Lieutenant Governor will not allow the Premier to prorogue the legislature before the motion is voted on by the legislature;
  5. If a majority in the legislature votes to approve a motion of non-confidence in the governing party before the next fixed-election date, the Lieutenant Governor will give the opposition parties an opportunity to govern (through either a formal coalition or legislative agenda agreement) before agreeing to any request by the Premier that the Lieutenant Governor call an election;
  6. After the next election, until the Lieutenant Governor has communicated directly with all the party leaders, the Lieutenant Governor will not make a decision about which party or parties (through either a formal coalition or legislative agreement) will be given the opportunity to govern first (i.e. to appoint a Cabinet and introduce a Speech from the Throne in the legislature);
  7. The party that wins the most seats in the next election will be given the first opportunity to govern, including in partnership or coalition with another party, unless the leaders of other parties representing a majority of members of the legislature indicate clearly to the Lieutenant Governor that they will not support that party and that they have agreed to form a coalition government or have agreed on a common legislative agenda, and;
  8. Within 30 days after the Lieutenant Governor decides which party or parties will be given the first opportunity to govern, the Lieutenant Governor and the governing party/parties will open the legislature with a Speech from the Throne.

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