Martyn Brown: A regal resolution for responsible government in British Columbia

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      Well, now, whoever said politics was boring in British Columbia?

      We likely won’t know until at least Wednesday (May 31) which party gets the nod to form the next government, as the NDP and B.C. Liberals vie for the Greens’ balance of power.

      Sadly, Andrew Weaver’s late Friday afternoon media avail shed little new light on the issue, in part because the conference call echoed so badly. Not unlike social media, you say?

      Whatever. It seems progress is being made towards a resolution, blah, blah, blah, and the parties (which parties, Andrew?!) are on track to meet their Wednesday deadline for an agreement as the election writs are returned.

      Following that announcement, all eyes will be on Lt.-Gov. Honourable Judith Guichon, our province’s appointed chief executive officer, nominal head of state, and Queen’s representative.

      We are all about to learn a whole lot more about just how important her role is in upholding and assuring our system of “responsible government”.

      Under our model of parliamentary democracy, the government is directly responsible to the legislature, as opposed to the monarch, and it remains indirectly accountable to the people through their elected representatives.

      In the unwelcome event that the Greens decide to back the B.C. Liberals, most of the 60 percent of us who voted for a change in government would be spitting mad. Yet the lieutenant-governor may breathe a sigh of relief.

      With a 46-seat B.C. Liberal-Green alliance seemingly secured, Guichon would obviously call upon Christy Clark to form the government and let the chips fall where they may, whenever the House next reconvenes. Which under that lamentable scenario, I would expect would be soon, if only to allow Clark to win a quick a vote of confidence.

      But how would Her Honour act if the Greens opted to support an NDP minority government, backed by some form of firm commitment to pool those two parties 44 votes, for the slimmest possible majority in B.C.’s 87-seat legislature?

      Faced with that clear wish from a majority of B.C.’s elected members, how might she use her “reserve powers”, to appoint our next premier, her executive council, and our next government?

      How might Guichon use her “royal prerogative”, to the extent allowed by constitutional convention, to perhaps deny any attempt by Premier Clark to force a premature snap election? Especially if she asks for the LG to grant a dissolution, in the event that her government is revealed to have lost the confidence of the legislature?

      What would it take to demonstrate that loss of confidence in the B.C. Liberals? Or for that matter, to demonstrate the legislature’s clear confidence in an NDP minority or NDP-Green coalition government?

      Hang onto to your hats, because it promises to be a wild ride, full of unexpected and contentious twists and turns.

      Christy Clark claims the B.C. Liberals have a duty to form government, but is this really true if the Greens back the NDP next week?

      Clark grasps for power

      For a good academic primer on how the LG might be guided by constitutional convention and historic precedent, read this paper by Peter Neary, from 2012. It is quite illuminating, however much I would hope that Guichon would feel confident enough in her own judgement to make decisions that would not necessarily accord with what others have done in similar situations.

      Once again we are seeing the true power of the Viceregal’s representative in our system of responsible government. The last time it was on such display was in 1991, when former Social Credit premier Bill Vander Zalm was faced with the choice of either resigning or being fired by then lieutenant-governor David Lam.

      As history unfolds before our eyes, we are seeing the critical nature of that office to the legitimacy of any B.C. government, especially in the case of a minority government.

      Many have said that because the B.C. Liberals won the most seats, 43 to the NDP’s 41, that Clark should have the automatic right to try to form a government. As Clark herself put it, she has "a responsibility to move forward and form a government".

      That is presumptive at best, and premature at minimum.

      “NDP wins in Courtenay-Comox, leaving Liberals with minority government”, the Vancouver Sun’s headline wrongly proclaimed.

      “BC Liberals denied majority as final election count leaves government in danger”, the Globe and Mail proclaimed, basically insinuating the same thing.

      “Premier Christy Clark will likely get the first crack at forming a government, pending a massive shift in seats during next week’s count of 179,380 absentee ballots,” a Postmedia story concluded—on May 15, even before those votes were counted.

      Not so fast. The two other parties that together control the majority of votes in the legislature might have something to say about that.

      So might the lieutenant-governor, if the NDP and Greens expressly say that they lack confidence in the Clark government. And if they also say that they are committed to marshalling their combined legislative majority to maintain confidence in an NDP minority government.

      There was no “massive shift in seats” in the final vote. There was no seat shift at all. But the popular vote results did basically fall to a 40-40 tie in terms of percentage.

      In any case, in our system of government, what matters most is the ability to at all times demonstrate that the premier and cabinet enjoy the confidence of a majority of members of the legislature. Arguably, whether or not it is sitting.

      Convention holds that a government that may lack that confidence should be accorded the opportunity to dispel that notion and to demonstrate the opposite, by way of a confidence vote.

      But what if 44 members or more of the 87-seat legislature make it clear to the lieutenant-governor that they have confidence in a mutually acceptable alternative, and have no confidence in the current government?

      From that moment on, the government lacks legitimacy.

      Any action by Her Majesty’s chief executive officer to perpetuate that situation would be tantamount to a breach of public trust.

      It would be a vexing situation for Her Honour, for sure. She may feel constrained by convention to act as she might wish in the public interest.

      If such a partnership is reached by the NDP and Greens, it should obviously first fall upon Clark to do the right and honourable thing, and immediately resign as premier.

      An Insights West poll indicated that most British Columbians want the B.C. Greens to back the NDP in the legislature.

      Government's legitimacy must take precedence

      As it is, according to new Insights West poll, some 65 percent of the public "think Premier Christy Clark should step down as leader of the BC Liberals if the party cannot form the government after all votes are counted".

      When asked how they felt about that premise, 44 percent of respondents said "definitely" and a further 21 percent said "probably". That’s a far cry from the 14 percent who said “probably not” or the 12 percent who said “definitely not”.

      The last thing she should do is to abuse her current status as our head of state’s principal “adviser” to protract a painful situation. That would only sully people’s faith in the Queen’s representative. And it would get worse, the longer it lasts.

      Then again, I would never count on Clark doing the right thing. Least of all, when her own political neck is on the line, as it now is.

      There is a reason why the governing party voted to give itself six months’ supply. It is enough to pay the bills and to spend what it likes from its proposed budget until the end of September.

      It did that in part in anticipation of an unwanted election result, be it a very slim majority government or a minority government. The Clark government did that to give itself the option of not having to recall the legislature and face a vote of confidence until perhaps four months after the election.

      It did it as a hedge against democracy. One that might create precisely the constitutional quandary we are now facing, in the event of an unwanted Liberal minority.

      Most importantly, the government voted itself six months’ supply to put time between the vote and that potential crisis of confidence.

      Time that it hoped would strengthen its hand in obliging the lieutenant-governor to reappoint Clark as premier and whomever she wanted to appoint as her new cabinet.

      Time that allows public anger to subside in her government and to seek a new voting alliance that might maintain its grip on power.

      Time to also strengthen Clark’s odds of gaining the LG’s approval in dissolving the parliament and forcing a new election, before the House is necessarily reconvened, so as to avoid a nonconfidence vote in the legislature.

      Time to try to buy her government’s way back into the public’s good graces. As she tried to do in the run-up to this past election.

      Time to show “she has changed”, á la Ebenezer Scrooge: that she is “not the woman she was”.

      All of which should give Hon. Guichon new pause for concern and reflection.

      If the NDP and Greens do form some kind of formal alliance next week, it will be incumbent on Her Honour to ensure that Clark does the right thing. Namely, to immediately face the music in the legisalture, or to resign as premier.

      Failing that, Madame Guichon should use her reserve powers to refuse to appoint a new premier or cabinet, pending an express motion of confidence in the legislature. That could be introduced and debated as a first order of business, following a perfunctory reading of a throne speech.

      In the event of an NDP-Green commitment to a stable, time-guaranteed minority or coalition government, the LG should not allow the existing Clark government to govern until September without recalling the legislature.

      To do so would be to effectively sanction a government that is not a “responsible government” in any sense.

      Her Honour could even use her reserve power of dismissal, to essentially fire Clark, if it was patently obvious that Clark’s government lacked the confidence of the legislature and yet refused to either resign or to immediately facilitate of vote of confidence.

      Under such circumstances, it would be unconscionable to allow Clark to carry on as premier, let alone as a newly reappointed premier, with a new cabinet. It would be utterly wrong to allow her to spend taxpayers’ money or exercise any executive powers that would impose new policies or important decisions on the public. They would innately lack legitimacy.

      Allowing that could provoke a massive public demonstration. It would also call into question the Crown’s conduct and repute. That alone should be unthinkable and unacceptable.

      Andrew Weaver has been careful not to signal which party leader he will support as premier.

      Situation differs in other countries

      Other parliamentary systems have rules to prevent this kind of situation from getting out of hand.

      In Italy and Thailand, for example, newly appointed prime ministers are obliged to gain a vote of confidence within a prescribed time.

      In places like Greece, a would-be first minister who wins a plurality of seats is given an “exploratory mandate” by the head of state. That person is given three days to demonstrate that he or she enjoys the confidence of parliament. If that fails, the leader with the next largest share of seats is given that same right.

      In other jurisdictions like Spain or Germany, the head of state nominates a person to serve as a prime minister, who is then submitted to parliament for its express approval before that appointment is made.

      The current situation in British Columbia highlights the need to look at all of those options and others, to strengthen our system’s capacity for truly responsible government, particularly in minority governments.

      If we do eventually adopt some form of proportional representation in B.C., we will surely need a better and clearer process for rapidly deciding who forms the government than we have today.

      Stability is a key part of that equation, as Weaver rightly noted in his comments on Wednesday.

      He said “We recognize British Columbians want stability. … I don’t think British Columbians want to go back to the polls any time soon. We have said to both parties we are willing to negotiate for the long term. … We are here to ensure that Parliament works.”

      Some people might read that as a hint that the Greens might be more open to backing the Liberals, because that would produce a 46-seat majority that might be more stable than a 44-seat NDP-Green partnership.

      I read Weaver’s comment a different way. I took it as a direct message to many audiences.

      First and foremost, it was a message to all citizens that the Greens want to be responsible and are looking for a partnership that avoids another quick election, one that can prove the merits of minority governments. Stability is obviously critical to that goal.

      Second, I interpreted it as a smart message to Her Honour that the Greens mean business and are looking for a longer-term deal. Most likely, with their ideological allies, the NDP.

      With a potential combined one-seat majority, the LG will want to have a measure of confidence herself that putting her trust in a Green-backed NDP minority will not be misplaced.

      Without that confidence, Her Honour might be inclined to simply accede to Clark’s potential demand for another election, if the Liberals cannot convince the Greens to back their bid for government.

      Third, I took Weaver’s comments about the need for stability as a direct message to Green members and supporters: they need to be patient in achieving the things they voted for.

      NDP Leader John Horgan isn't eager to permit proportional representation without the citizens' consent in a referendum.
      Stephen Hui

      Horgan demonstrates a backbone

      With a stable NDP-Green partnership, it might well be possible to ban big money, stop Kinder Morgan, perhaps revisit Site C, and make all sorts of material progress on other social priorities like childcare, education investments, and the elimination of MSP premiums.

      A stable multiyear partnership is obviously also critical to putting proportional representation in place. It would give the parties the time they need to agree upon a suitable model of proportional representation, to pass it by way of a referendum, as the NDP proposes, and to still put PR in place before the next election.

      I was very buoyed by John Horgan’s firm position on that issue on Thursday’s Jon McComb show, on CKNW. It is certainly worth a listen.

      In that interview, Horgan said this:

      “I do believe we need to take the temperature of the public. … My plan, assuming a positive outcome [with the Greens], would be to develop a question, put it to the public, and campaign in favour of it. And I can’t think of a better way to demonstrate that minority governments can be a good thing than to have Andrew Weaver and I and our teams working on the issues that matter to people, right now.”

      To which McComb responded: “But he wants to do it right now. He says ‘forget the whole referendum, it takes too long and people don’t understand it anyway. Let’s just bring it in.”

      Horgan answered, “Well, I don’t agree with that. We’ve been talking about our differences on that question. I think that if a government is going to change how people choose their government, they should ask the people about that. That’s a hard position for me to get off. … For me, it’s critically important that the public support the initiative.”

      Here, here! That is precisely the type of leadership I voted for in supporting Horgan’s party. And as I have repeatedly said, I sure hope he sticks to his guns on that position.

      The Insights West poll also found that 63 percent of those surveyed said that “a change in the current system should be put to a provincewide referendum”.

      There might be other ways as well to strengthen the NDP-Green alliance in the interest of a stable minority government that could possibly last for four years.

      Believe me, if Clark is sent to the opposition benches, the knives will quickly be out for her ouster. If that happens, the Liberals will not be in any hurry to force an early election either.

      If Clark is forced to resign, or even undergo a leadership review, it will be messy. The party would need time to regroup and to potentially pick a new leader before going back to the polls.

      Beyond that, don’t discount the possibility that one or more Liberals could either sit as independents, quit, or even cross the floor to sit as New Democrats. In fact, I would bet on it.

      The ink was not even dry on the returned writs in the 2006 federal election when then-Liberal MP David Emerson jumped ship to sit in Stephen Harper’s cabinet.

      Deposed former B.C. Liberal leader Gordon Wilson quickly abandoned his nascent PDA party after the 1996 election, to sit as a New Democrat in Glen Clark’s cabinet. Former B.C. Reform MLA Richard Neufeld also happily crossed the floor after that election to join Gordon Campbell’s Liberals.

      It happens, folks.

      Smart parties that need the added strength of numbers that those floor-crossers can give them should throw out the welcome mat for their disaffected opposites. That is, to the extent that they can enthusiastically support their would-be new parties’ agendas and ideals.

      The most honourable way to do that is through a by-election, which is always preferable. Then again, one or more Liberals might just choose to sit as independents.

      “No way,” they will all say now.

      But when the you-know-what hits the fan, there might be at least one or two Liberals who decide, enough is enough. They may want to be free to vote for NDP-Green priorities that make sense and not be bound by party discipline. Especially if Clark tries to fight back with more dirty tricks that further alienate her party’s own supporters, many of whom voted for the Green party.

      Point is, when a government that has been in power for 16 years or longer falls, it usually falls hard.

      Friends fall out as fools rush in to maintain their grip on power, which was essentially lost for the Liberals with this past election.

      This is responsible government: a government that is at once responsive to the people’s wishes and also responsible to a majority of the people’s elected representatives.

      A regal resolution is at hand, if the NDP and Greens can bridge the minor differences that stand in their way.

      And I have every confidence in the world that the lieutenant-governor will do her part in facilitating that new government, in the interests of Her Majesty’s loyal “subjects”, whatever constitutional challenges that may pose.

      Martyn Brown was former B.C. premier Gordon Campbell’s long-serving chief of staff, the top strategic adviser to three provincial party leaders, and a former deputy minister of tourism, trade, and investment. He also served as the B.C. Liberals' public campaign director in 2001, 2005, and 2009, in addition to his other extensive campaign experience, and he was the principal author of four election platforms. Contact Brown at