A Hung Parliament and Revival of 19th-Century Norms
British Columbians went to the polls on 9 May 2017 and appeared to elect a hung parliament. Elections British Columbia had to conduct some mandatory recounts and count absentee and other ballots before certifying the results in some constituencies. On 24 May, Elections British Columbia certified that the Liberals had won a plurality of 43 seats (one short of a majority), and that the New Democrats had won 41 seats. The Greens hold the balance of power, with 3 seats.
On 29 May 2017, the leaders of the New Democratic and Green parties announced that they had come to a formal supply arrangement, whereby the Greens agreed to support a New Democratic ministry on confidence matters for the full four-year parliamentary term. The Liberals have governed British Columbia since 2001; the Greens want leverage in a new government. The parallels between Ontario in 1985 and BC in 2017 are lost on no one.
Premier Clark responded to this development on 30 May. She announced that she will stay on and advise the Lieutenant Governor to summon the first session of the new legislature shortly, yet she also acknowledged that her ministry would almost certainly lose the vote of confidence on the Address in Reply to the Speech from the Throne.
Constitutionally, Clark is within her rights to test the confidence of the new legislative assembly, especially considering that British Columbians just elected a hung parliament wherein the Liberals and New Democrats both possess strong pluralities. But, politically, Clark’s decision seems strange because she has acknowledged that the new assembly will almost certainly not sustain her government. It might be perceived as making her look desperate and clinging on to power.
To her credit, however, Clark also confirmed that if her Ministry loses that crucial vote, then she would offer her resignation and expect that the Lieutenant Governor would call upon John Horgan, the leader of the New Democratic Party, to form a new ministry. Clark ruled out the notion that she would advise dissolution — which, at any rate, the Lieutenant Governor would quite rightly reject, and thereby dismiss Clark.
Should my government not meet the test of confidence in the House — which I think is likely — then she [Lieutenant Governor Judith Guithon] would, I think, go and ask the NDP, as the second which got the second largest number of seats, whether or not they could govern.
As Phil Lagassé pointed out, it hinges upon whether one favours parliamentary democracy versus popular democracy, or, to put it another way, whether the Crown or the assembly should have first say on who governs.
Above all, Premier Clark is hewing closely to the standard practices of Responsible Government from the 19th century, when the norm was that incumbent ministries carry on in office until they suffered defeat on a vote of confidence in the assembly. The transition of power between ministries would then take place mid-parliament. In the Province of Canada, this is how the Baldwin-Lafontaine Reform ministry formed government. The Reformers had won a parliamentary majority in the general election of January 1848, but the incumbent administration led by Henry Sherwood and Denis-Benjamin Papineau remained in office until meeting the new legislature in March 1848. The Sherwood-Papineau ministry lost a vote of confidence, and Governor General Lord Elgin promptly appointed Baldwin and Lafontaine to take their place. In the United Kingdom, this old convention began to decline in the 1870s with the all the Disraeli-Gladstone alterations — which is precisely when the Liberals and Conservatives were becoming more cohesive parties in the Mother Country. Here, this old convention did not survive the Province of Canada. (The only exception in the 19th century occurred when Macdonald resigned in disgrace admist the Pacific Scandal in November 1873). Even by 1896, Governor General Lord Aberdeen thwarted Charles Tupper’s attempt to revive it. After the Liberals had won a parliamentary majority in the election of 1896, Tupper advised Aberdeen to appoint new judges and summon new Senators; Aberdeen refused on the grounds that Laurier would have to form a new Liberal ministry in the new parliament, and Tupper thereby resigned, since Aberdeen had refused his advice, instead of staying on to meet the new parliament.
But I would argue that a more “interesting” (for political scientists) and pressing question looms: will this 41st Legislature be able to elect a Speaker? Because if it cannot, then the Clark government will not even be able to test the confidence of this new assembly.
Forget Sustaining the Clark Government! What About Electing a Speaker?
In some ways, the vote on electing the new Speaker might be more interesting than the confidence vote on the Address in Reply — if only because the new assembly must first elect a new speaker before undertaking any additional business. Standing Order 11 and section 37 of British Columbia’s provincial Constitution Act both stipulate that the assembly must first elect a Speaker.
In the Legislative Assembly of British Columbia, the Speaker is elected through secret ballot by all MLAs, and, normally, from amongst the ranks of the governing party. But this 41st Legislature is particularly unstable, with 43 Liberal MLAs opposite 44 New Democratic and Green MLAs. Under this custom, the assembly would elect as Speaker either a Green or New Democratic MLA, which, in turn, would put the New Democratic-Green grouping and Liberals with 43 MLAs each. The Speaker would have to routinely intervene to cast the deciding ballot under Standing Order 10. Therefore, in this 41st Legislature, it would be best that the Speaker be a Liberal MLA, which would drop the regular Liberal numbers down to 42 versus 44 New Democrats and Greens.
Westminster parliamentary precedent shows that if an assembly fails to elect a new Speaker, then the Governor must dissolve the legislature (on the incumbent premier’s advice) in order to break the deadlock. This has to do with the interplay between some core rationales of our system of government. As stated, any legislative assembly must first elect a speaker before it and the government can proceed with other necessary matters — like the Speech from the Throne, the Address in Reply, and tabling a budget and key policy bills — and thereby fulfill its primary duty of carrying out the Queen’s business. And the Governor General and Lieutenant Governors, in turn, must guarantee, as their first duty, that there is always a duly constituted Ministry is able to carry on the Queen’s business. In our system, there is always only one ministry at a time. Only the Lieutenant Governor of British Columbia can dissolve the legislature, on the advice of the Premier. Therefore, the inability of a legislative assembly to elect a speaker is legitimate grounds for the Premier to advise an early dissolution and a new general election — even only mere weeks after the last general election.
This is why the real clash between the Liberals and New Democratic-Green grouping might come upon the election of Speaker, rather than on the vote on the Address in Reply. It would be in the Liberals’ best interest to forego the norm of nominating one of their own as Speaker and instead vote to elect a New Democratic or Green MLA to the post, which would give Clark the chance, however small, of engineering an early dissolution.
And it just so happens that a precedent within the Commonwealth bears some similarities to what British Columbia might now face and illustrates the principle that the assembly’s failure to elect a speaker is grounds for early dissolution.
Precedent from Newfoundland in 1908-1909
In 1908, the Liberal Party of the incumbent Liberal Premier of the Dominion of Newfoundland, Sir Robert Bond, won 18 seats. The People’s Party (formerly the Tory Party) also won 18 seats. The incumbent Liberal Premier, Sir Robert Bond, remained in office and met the new assembly — which could not elect a new speaker. It could therefore not transact any business. Bond advised Governor Sir William MacGregor to dissolve the assembly; MacGregor refused, and Bond therefore resigned because the Governor did not follow his advice. Governor MacGregor then commissioned the leader of the People’s Party, Sir Edward Morris, to form a new ministry. But when the Morris ministry met the assembly, it still could not elect a new speaker. Morris then advised dissolution, which MacGregor granted. Morris’s People’s Party went on to win a decisive parliamentary majority in the general elections of 1909.
Perhaps a similar fate will befall the 41st Legislature of British Columbia, except that Clark would stay on in a performance worthy of Francis Urquart. Or, perhaps I’m wrong, and the legislature won’t have difficulty electing a speaker. But in either case, this question of electing the speaker is at least just as interesting as whether the assembly will sustain Clark’s Liberal ministry.
Conclusion: A Possible Solution
Only if all parties agreed that a Liberal MLA should be elected as Speaker would the immediate crisis be averted.
Presuming that all the New Democratic and Green MLAs vote as a block and that all Liberal MLAs vote a block, the best outcome, from a legal-constitutional standpoint, would be if the assembly elected a Liberal MLA as speaker from the outset. Then the Clark government would almost certainly lose the vote of confidence on the address in reply (which is why I suspect that the Liberals might be hesitant to accede so quickly to this idea). The Liberals would stand at 42, which means that the 44 New Dems and Greens could defeat the Clark government without forcing the Speaker to cast the tie-breaking vote. At that point, Clark would have to resign because a viable alternative government exists with this assembly, and the Lieutenant Governor would then ask Horgan to form a government. The Liberal MLA would remain as speaker and would then at least not have to cast the tie-breaking vote on all confidence bills of the new Horgan government as a matter of course.
In principle, forcing the Speaker to break tie votes on all confidence measures should not become the norm — or the necessity — because the Government’s capacity to command the confidence of the Assembly excludes the Speaker. Our system of Responsible Government depends upon a neutral Speaker, so the Speaker should not be forced to break tie votes on confidence matters as a matter of course, and thereby ensure that the Government survives solely because of his tie-breaking vote. At the federal level, Speaker Milliken had to break a tie vote in 2005 in favour of one of the Martin government’s supply bills — and it was unprecedented. That was only one incident, so constantly relying on the Speaker to do this would also be unprecedented and fundamentally corrosive to our system of government.
But electing a New Democratic or Green MLA as speaker would still set the 41st Legislature up for failure in short order. If the Speaker is a New Democrat or a Green, then the remaining New Democrats and Greens would account for 43 seats, and the Liberals would account for 43 seats. The New Democratic or Green Speaker would have to break the tie vote on the Address in Reply to the Speech from the Throne.
If a New Democratic or Green Speaker voted in favour of the NDP-Green Opposition, then the Clark government would fall. Based on her previous statements, Clark would then resign and make way for the Lieutenant Governor to appoint Horgan as Premier. But then the New Democratic or Green Speaker would have to continue to cast tie-breaking deciding votes in the Horgan government indefinitely. So if only one of the New Democratic or Green MLAs is away, or if a Green MLA breaks rank with the Horgan government, then it would fall. At that point, an early general election would be the only viable option. If the New Democratic or Green Speaker voted in favour of the Clark government on the Address in Reply, the he would also have to continue casting a tie-breaking vote in the Clark government indefinitely, or the Clark government would fall.
The 41st Legislature will be on a knife edge.
- Summary of My Panel at the Constitution at 150 Conference
- My Discussion on Government Formation at the University of Ottawa
 Arthur Berriedale Keith, Responsible Government in the Dominions, Volume 1 (Oxford: Clarendon Press, 1912), 209-211.