Monday, June 07, 2010

MergerCoalitionPartnership (MCP): Jack Layton needs new political science handbooks

Jack Layton is a practised politician, well-seasoned, quick on his feet, and fierce in his defence of the helpless in our country. However, he has now revealed that he seems to lack the knowledge needed by a party leader about how our constitution works when a minority party is elected. And this could prove to be a very costly mistake for all progressive Canadians.

Harper needs a lesson, says Jack

Joan Bryden has an article for The Canadian Press discussing the reaction of the Bloc and NDP to Michael Ignatieff's speech about cooperative governance by the Liberals if voters deal the cards that way in the coming election. Both parties have reservations about Ignatieff's apparent conversion, and have adopted a cautious wait-and-see attitude.

In this article Layton had some advice for Prime Minister Harper, because he thinks Harper does not really understand how our Westminster style parliamentary system works when we have a minority government (the most likely outcome of the next election):

Layton said Harper needs to re-read his political science textbooks.

"The party with the most seats gets the first shot at forming a government," Layton said.

"That's the tradition. If they're not able to do it, then somebody else gets a shot at it. That's how the Westminster system (works), the Commonwealth countries have followed for years and years and it's done rather well.

Sound the buzzer

Not so, Jack. Take if from The Cat. Methinks you are the one who needs to buy a newer set of political science handbooks. The process is a bit more tortuous than you explained.

The party with the most seats does not automatically become the next government. It is possible for an existing government with fewer seats to remain in power, as this explanation by the Institute for Government explains (my bolding):

So if no single party has a majority and there is a hung parliament, what happens next?

If no party has an overall majority, the incumbent Prime Minister is entitled to remain in place until a new government is formed. If the party in power believe they can form a government they will have the first opportunity to do so by seeking approval for their programme in the Queen's Speech debate. Other parties will not have the opportunity to attempt to form a government unless and until the incumbent Prime Minister resigns. (See The Cabinet Manual (CM) chapter 6, paragraphs 16-20)

Doesn't the leader of the largest party automatically become Prime Minister?

No. That's a common misconception. Strictly speaking it is the party which can command the confidence of Parliament that is invited to form the government. This may be the second largest party, if it can do a deal with other parties (as occurred in 1924). Commanding confidence means being able to avoid defeat in Parliament on explicit confidence motions, and the Queen's Speech, and on matters which have always been regarded as confidence issues, in particular the passage of the annual Budget. (See CM Ch 6, para 14-15)

How is it determined who should become Prime Minister? Does the Queen decide?

No. Though, formally, the Queen invites one leader to form a Government, there is a strict convention that the Crown should not be brought into political controversy. It is for the political parties to work out who can command confidence in the new Parliament. The Prime Minister will advise the Queen whom to invite to form a government, after the political negotiations have made it clear who can command confidence.

Who negotiates this formation of government?

It is for the political parties to determine and communicate who is likely to be able to command confidence. If a majority of political parties declare in advance that they would definitely not support a particular government being formed then that party cannot reasonably claim to be likely to command confidence. The political parties will negotiate amongst themselves, but this process can be supported in practical terms by the Civil Service, on the authorisation of the Prime Minister of the Day. The Queen's Private Secretary, the Cabinet Secretary, and the Prime Minister's Principal Private Secretary all play a role in ensuring that conventions are adhered to and that developments are clearly communicated.

What is the role of Parliament in the process of forming the government?

Although the support of a majority of MPs is necessary for a Prime Minister to take office, parliament does not play a direct, formal role in the process. Parliamentary support or ‘confidence' in the PM is not explicitly tested until some weeks after the election by a vote on the Queen's Speech.

Our own experience with the LPC-NDP coalition in 2008 as an illustration of the law

We have an example of the majority of poltical parties declaring in advance that they would definitely not support a particular government being formed.

That happened when Harper tried to get too clever by half by cutting public funding of political parties and ignoring the depth of the recession staring us in the face.

The LPC and NDP entered into a formal coalition agrement (signed by every LPC and NDP MP, including Ignatieff and Layton). That coalition agreement was similar to the Cameron-Clegg model in that both parties would have had seats in the Cabinet, a fixed term was set for the agreement unless jointly renewed, and some guiding principles were set out, dealing mostly with how to handle the dire economic situation of the country, and providing for a stimulus program. The Bloc was not to be a member of this coalition government.

A written side agreement was entered into between the LPC and NDP on the one hand, and the Bloc on the other, under which the Bloc put in writing its intention to provide the minority coalition government (the LPC and NDP did not together have the 155 MPs needed to form a majority in our 308 seat parliament) support in confidence votes for a period of 18 months. The Bloc reserved the right to vote against the minority government on all legislation which did not involved confidence votes.

It was necessary for the Bloc to enter into such an agreement with the other two parties as Harper, being prime minister, had the right (even though he did not a majority of seats in the House) to take a crack at forming a government. The LPC-NDP coalition and Bloc were going to vote down his Throne Speech, effectively terminating his right to continue to be Prime Minister. These three parties had the right to do this even though the Tories had won more seats than any of the other three parties, and in fact more than the LPC and NDP combined.

Wriggly Harper escapes the trap

Harper avoided this fate by asking the Governor General to prorogue parliament, which she surprisingly agreed to. When parliament resumed, Ignatieff walked away from the deal cut with the NDP and so gave Harper the chance to win a vote of confidence, which the Tories did, supported by the LPC.

Jack's Mistakes

So where did Jack go wrong in his advice to Harper?

For starters, it is not the law that the party that gains the most seats "gets the first shot at forming a government".

The sitting prime minister gets first shot at doing that, even if his party has fewer seats than any other party.

For example, should the LPC (or the LPC and NDP under a pre-election or post-election written governance or partneship or coalition agreement) gain more seats in the coming election, then they do not automatically get the "first shot" at forming a government. Harper, as prime minister, gets that shot and the Governor General will agree to give him that shot.

So what Harper will do is table a Throne Speech and later a budget which he hopes will do two things: avoid having any poison pills in it which will make the Bloc vote against his government (such as cutting public funding of political parties), and contain enough goodies for Quebec that the Bloc decides to support his government.

If the Bloc does this, the LPC (or LPC and NDP combined in some kind of cooperative group) will not get the right to form a minority government. They will only get that right if the Bloc votes against the Harper government on a confidence motion.

And it is important what happens next: Timing is all. If the Bloc keeps Harper afloat for say 9 months to a year, then if the Bloc withdraws its support, and the Tories lose a confidence motion, then Harper would probably succeed when he asks the Governor General to allow him to dissolve parliament and hold another election. If the Bloc collapses his government in the first 9 months, the GG will most likely call upon the leader of the LPC to try to form a government (a Throne Speech and all that jazz).

It is the Bloc's decision, realistically

Given the above, the decision as to who forms the next government (assuming the Tories do not get a majority of seats – over 155), will be made by the Bloc.

Not by Harper.

Not by Ignatieff. Not even if the LPC on its own wins more seats than the Tories do.

Not by Layton.

Not by Ignatieff and Layton combined (not even if a coalition agreement is entered into between these two parties before the election or immediately after the election and before the Throne Speech) and they command more seats than the Tories do.

The logical conclusion?

The Bloc needs to be enticed into doing one of two things when parliament reconvenes and before the Throne Speech is heard:

1. Enter into similar written agreements to the ones which the LPC, NDP and Bloc signed in 2008, declaring " in advance that they would definitely not support a particular government (Harper's Tories) being formed"; upon this happening, the Tories " cannot reasonably claim to be likely to command confidence" in the House and the GG will skip over Harper and call upon the leader of the LPC (or LPC-NDP coalition if one has been formed) to attempt to form a government which will enjoy the confidence of the House.

2. Sufficiently convinced by a publicly announced program set out by the LPC, and a written agreement entered into between Ignatieff, Layton and (once again around the mulberry bush) all the LPC and NDP MPs, under which the NDP agrees to support the LPC minority government for a set period in confidence votes, to decide to vote against Harper when the Tory Throne Speech is heard. This would end the Tory government and the GG would call on Ignatieff to attempt to form a government that can command the confidence of the House.

3. The important difference between courses 1 and 2 above is that in 1 the Bloc signs a writen agreement with the LPC and NDP and together these three parties terminate the Tory government at the Throne Speech, while in 2 the Bloc does not sign anything but sticks to its announced policy of supporting any minority government on a case by case basis.

As you can see, the exact mechanics of our government formation process is unwieldy and allows a prime minister lots of chances to try to work out a deal and survive, even if his party has fewer seats than another party.

The chances of Harper doing this are very high indeed.

The impact on the LPC and NDP

There will be very limited time for the LPC and NDP to get their act together to replace the Tory government after the next election, even if the Tories lose 30 or more seats and both the LPC and NDP gain more seats.

The Bloc holds all the cards.

It is up to the leaders of the LPC to make a case to the Bloc to change is declared policy of supporting whatever minority government is in power on a case by case basis, depending on the Bloc's assessment in each case of what is good for Quebec.

The danger

The danger is that loose thinking like that apparently displayed by Jack Layton in the above interview can lead to party leaders thinking they have the luxury of time to make such decisions, and ending up condemned to watching from the sidelines while Harper runs the country as a minority government for another four years.

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