Can the 41st Legislature of British Columbia Elect a Speaker?


Legislature of British Columbia

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 party which got the second largest number of seats, whether or not they could govern. But she will make that decision. And I won’t be making that request either because the decision is solely hers.

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.[1]

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.

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Notes

[1] Arthur Berriedale Keith, Responsible Government in the Dominions, Volume 1 (Oxford: Clarendon Press, 1912), 209-211.

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39 Responses to Can the 41st Legislature of British Columbia Elect a Speaker?

  1. Thank you for this very informative blog, I have a question based on Tom Fletcher’s latest column where he said:

    “The B.C. Liberals will have to provide a Speaker before they can present their throne speech, on which Clark expects to lose a vote after a few days of required debate. That Speaker would then resign to force the NDP-Green alliance to appoint their own. That individual has to come out of their 44 MLAs before they can send 43 B.C. Liberals to the opposition side.”

    My question is on the 2nd sentence that the Speaker “would then resign” after the government loses the confidence motion.

    Is a Speaker forced to resign after a loss of confidence and the Lt. Gov asks for a subsequent change in Ministry? That doesn’t seem to jive with my knowledge, but you are experts.

    Thanks!
    http://www.albernivalleynews.com/opinion/plot-thickens-at-victoria-castle/
    Chris

    • Winston Ewert says:

      Tom Fletcher seems confused on a few points.

      1) The Liberals are under no obligation to provide a speaker when they attempt to form government. Normally, a majority government elects one of their own as the speaker because they have the majority of the votes. But there is no convention stating that they have to do so.

      2) The speaker does not have to resign, but could. The speculation is that the liberals could provide a speaker who would voluntarily resign after the liberals were defeated. But this is just speculation on a strategy the liberals could use, not a requirement

      3) The NDP/Greens are also under no obligation to provide a speaker when they attempt to form government. They could elect a Liberal speaker, if the liberal in question agrees to be elected.

    • It is not reasonable to expect either the NDP to provide a speaker to allow Clark to govern or vice versa because of the seat totals. A speaker that is from the opposition when the government has a working majority is not an issue, but in this situation it is a clearly a major problem because you are asking the speaker to regularly vote and to vote against their own political views a lot of the time

  2. Pingback: The election leading..straight to another election?

  3. In case the Legislative Assembly reaches an impasse in electing a Speaker due to all parties’ refusal to nominate any of their own members, couldn’t the NDP/Green majority simply “appoint” a Liberal MLA as Deputy Speaker to act in place of the Speaker (at least until Liberals eventually give in and nominate their own member for Speaker)? Seems like that impasse would surely qualify as a “need arising” to immediately appoint a Deputy Speaker, as per the Constitution (http://www.bclaws.ca/civix/document/id/complete/statreg/96066_01#section37), and this seems a much more reasonable option than an immediate return to the polls.

    • Dan says:

      Running for Speaker is VOLUNTARY. Forcibly appointing the position? Really? Is that how the NDP wants to be perceived, after an election where they ran as all things to all people? This will be an unstable government, no matter which party forms it. Horgan’s “four years” is just more bluff and bravado. And the Libs don’t have to, and shouldn’t allow one of theirs to be Speaker. Make life as hard as possible on the usurpers!

  4. Mike says:

    If all the Liberals refuse to stand for Speaker, they might as well call the new election now. Either the Liberals or the NDP/Green coalition may be able to survive a tie confidence vote with the support of the Speaker, but neither would be capable of passing any legislation without support from the other side.

  5. Mark Roth says:

    Not knowing what the various laws are on the matter, as opposed to the conventions, I would think that:

    1) Clark’s refusal to resign (as per the modern convention) allows the NDP-Greens to agree to break other conventions, such as electing a Speaker who will simply vote with the government when allowed to.

    2) There is really nothing wrong with letting the majority govern, even if they need to rely on the Speaker’s vote. Would anyone have questioned a 44 seat Liberal majority pushing through legislation using 43 floor votes and the Speaker’s casting vote?

    • Mike says:

      1) Clark is acting according to modern convention; her party won the most seats (even though not a majority), so she has the opportunity to seek the confidence of the Legislature.

      2) The usual course of action on winning a 1-seat majority is to elect a member of the opposition to be Speaker, effectively creating a 2-seat majority.

      • Winston Ewert says:

        Is there precedent for a one seat majority electing an opposition speaker? I haven’t found any so far.

        • Benny says:


          https://polldaddy.com/js/rating/rating.jsActually, in 2003 NB election, Bernard Lord won a bare majority (44 PC-42 Lib-1 NDP) and was able to govern for 3 years despite no opposition member putting their name for speaker: https://en.wikipedia.org/wiki/New_Brunswick_general_election,_2003. How this actually worked I don’t know because I can’t find much information on that legislative session online. There is a bit more history in the outline of the 2006 NB election: https://en.wikipedia.org/wiki/New_Brunswick_general_election,_2006

          • Winston Ewert says:

            From looking at the votes in the legislature, it looks like in the first year the opposition consistently had one of its members fail to cast one of their votes, allowing the government’s agenda to pass. By the third year, the opposition was no longer doing this, and most votes came down to ties. The speaker appears to have often ruled in the government’s favor, arguing that maintaining the government’s agenda was the status quo.

        • Alex Sloat says:

          Liberal Peter Milliken remained Speaker federally through both of Harper’s minorities. Harper did have larger minorities than Horgan does, but the 39th Parliament (2006-2008), in particular, was a really closely balanced one, where certain combinations(Con+NDP+1 Ind. vs Lib+Bloc) could have resulted in tied votes.

        • Alex Sloat says:

          In a similar vein, the speaker for Joe Clark’s reign of error was a Liberal, in a House with 142 PC+Socred vs 140 Lib+NDP. If the Liberals hadn’t taken the Speakership, then a single defection would have flipped power.

          Also, Dalton McGuinty’s minority of 2011 in Ontario was 53 Lib vs 54 PC+NDP. A PC MPP almost ran for Speaker until everyone pointed out that he’d be giving the Liberals a working majority and he backed off. It never came to a vote, but it was widely understood that the Liberals would have elected him happily.

          • Winston Ewert says:

            In other words, Mike was wrong.

            Its not the usual practice for a one-seat majority to elect an opposition speaker.

  6. Shoshana says:

    More likely though is that someone who wants to retire in 4 years with a minister’s pension steps up to the plate and crosses the floor to support the government.

    • Dan says:

      While theoretical, it’s not likely. Recall legislation almost ensures that any MLA that tries that will be forced out within two years

  7. Shoshana says:

    I put forward the NDP and Greens are hooped if they do and hooped if they don’t.

    If they put forward a speaker, she wins the confidence of the house as speakers always vote confidence in the government.

    If they don’t put forward a speaker and a Liberal is elected, then with a 1 seat majority coalition, a Liberal calls the votes to order, and one person in the loo too long brings down the NDP/Green house.

    • Alex Sloat says:

      > speakers always vote confidence in the government.

      Milliken’s precedent from 2005 was set on a second reading, and his speech at the time was made quite explicitly on the basis of continuing the debate within the House, not of continuing the House per se. It is not binding on third readings, at least when taken at face value. I know of no instance where a Speaker had a casting vote on a final reading of a confidence motion, though I’m sure James will inform me if I’ve missed one.

  8. Kim Poirier says:

    Am I wrong in thinking that matters of Confidence must be given 24 hours notice?

  9. David says:

    Nice, except the BC legislature has an odd number of seats. All 87 members are allowed to vote for a Speaker, which is done by secret ballot. It would have to be an extremely well-engineered plan, with everyone sticking to the script, for some oddball outcome to occur. I’d also be surprised if the NDP-Greens didn’t include discussions about electing a Speaker during their negotiations.

    I think it’s extremely unlikely there’ll be any problems electing a Speaker.

    • Dan says:

      Any and all tools, by the constitution, will be employed, including all strategies possible, including “Who is the Speaker”? It would explain why Christy was subdued, that wasn’t the day to fight, there will be better opportunities later to be strategic. And, it turns out, the MLAs have to officially file to not be Speaker, although I don’t see why they can’t resign either. We will be back at the polls very soon, likely 6 months at the most. Bank on it

  10. Grant Penton says:

    Can Linda Reid be enticed to stay in her position as were LPC MPs Peter Milliken and James Jerome by PC and CPC administrations? Could she be effectively bribed by promises to upgrade her residence and office?

  11. Winston Ewert says:

    It seems to me that if we follow that precedent:

    1) The Liberals are still in government and recall the legislature.
    2) Neither party is willing to provide a speaker, so no business can be conducted.
    3) The lieutenant governor asks the NDP to form government.
    4) The NDP is then willing to provide a speaker, who votes with the status quo supporting the newly formed government.

    Of course, that still results in a rather untenable government since they cannot pass any legislation.

    • That scenario is certainly possible. But it would, as you suggest, be unstable as well.

      It would take the absence of only one NDP or Green MLA, against the full complement of Liberal MLAs, to trigger the government’s defeat!

      • E.J. James says:

        Would that not also be an extreme measure by the LG to dispose the ministry without having input from the legislature. Seems to me a deadlock does not equal non-confidence in the ministry. And acting outside of the legislation would be a breach of responsible government.

        • Winston Ewert says:

          My assumption was that between steps 2 and 3, Clark resigns as premier. In that case, it is certainly within the prerogative of the LG to ask Horgan to form government. I believe, if Clark refused to resign she could continue to govern until the fall when she would be forced to pass a budget to stay in power. I don’t think that’ll happen because it would be a terrible PR move.

    • Andrew Bore says:

      If no speaker is selected, no business can be conducted. You can’t get from 2 to 3 without a speaker. “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. … 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.”

  12. Steven says:

    Let us presume that the Liberals refuse, to a man, to be Speaker.

    In that case, with an NDP or Green Speaker chosen, the vote of confidence would (presumably) be tied, and Clark would remain premier unless the Speaker defied convention and broke the tie in favor of no confidence. On that, the Speaker could at least argue that convention did not apply under these circumstances, because it was not an ordinary vote of confidence, but the first post-election one involving a party that lost its majority.

    But then we come to the fact that as part of the deal to support an NDP government, the Greens have demanded the adoption of PR by statute. And assuming that held up on party lines, a 43-43 vote, with the Speaker traditionally obliged to maintain the status quo. And how legitimate would it be considered by anyone for the Speaker to defy the status quo convention in order to not just pass a law, but substantially alter the method by which members are elected?

    In short, do we have a case where the Greens have struck a deal with the NDP to form a government, but that deal cannot be upheld without the consent of at least one member of the Opposition?

    • The answer to your question could very well be “yes”, in the practical sense. That is indeed a very unusual situation!

      I shall watch with great interest how this plays out over the coming days.

      • E.J. James says:

        Can we play that scenario out a little because I am very interested in the outcome but I am at a loss to explain the situation. What would happen if the Speaker was NDP/Green and voted against the government Speech from the Throne thereby breaking the status quo convention? How would Clark address that concern. The legislature being beholden to itself would be stuck in a deadlock regardless. Would not then the LG be compelled to dissolve as well because the work of the government could not advance normally? Heck, even if the scenario played out where the legislature in a committee of the whole scenario judged the conduct of the Speaker, if it fell along partisan lines, it would be a deadlock.

        • Mike says:

          The Speaker acting in a partisan manner would run against literally centuries of Parliamentary precedent.

          Unless a Liberal is made Speaker, or an MLA switches sides, I think BC will be headed back to the polls almost immediately.

          • Dan says:

            Is it a stretch to see the Greens or the NDP Speaker act totally partisan? Imagine if Weavers deal, was to elect him Speaker? And when it comes to any of his far left enviro agenda, he casts the deciding vote ” for the good of the earth” or some such. I wouldn’t put it past either of these ideological left parties to do that. Weaver’s Schlick us to break with tradition. Just watch

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