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UPDATED: GUEST POST – The Morning After: Valid Minority Government Options in Ontario

Late last month I attended some of the Canadian Political Science Association's annual meeting sessions and live-tweeted them. One session that was very interesting, but was in part too fast to live-tweet, was on the issue of constitutional conventions in the case of a minority government. The panel included Professor Peter Russell, former Ontario Premier Bob Rae, Professor Hugo Cyr of UQAM, and Professor Johannes Wheeldon.

I found Wheeldon's paper interesting, because it showed that not even constitutional and political science scholars agree on what our unwritten constitutional conventions are. This is why Professor Russell is now advocating that the rules for forming a government in minority situations be codified (he uses the example of "cabinet manuels" in New Zealand). Professor Cyr noted that the media's obsession with covering the horse-race during election campaigns, and their race to be the first to declare an outcome on election night ("it's a Liberal minority", "it's a Conservative majority", etc) glosses over the role that Parliament plays in selecting a government, and Mr. Rae agreed that the media needed to be much better informed on these issues. (Rae also wrote about the session at his own blog.)

In addition to supplying a copy of his research paper (linked to below), Professor Wheeldon has written a handy primer for Pundits' Guide readers on how a government could be formed in each of four theoretically possible outcomes of Thursday's Ontario provincial election.

UPDATE: Professor Wheeldon asked that the phrase "(on the advice of the Premier)" be added in two places to clarify that the Lieutenant-Governor cannot actually "call" an election, though in fairness to Wheeldon he didn't actually write that the LG would "call an election", but rather "call for an election".

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The Morning After: Valid Minority Government Options in Ontario

By Johannes Wheeldon (Assistant Professor, Norwich University, Vermont)

Johannes WheeldonOntario’s election is too close to call, raising the urgent question of what constitutional options exist in the case of a minority government. A survey of 65 constitutional and political science scholars, presented to the Canadian Political Science Association annual meeting late last month, shows the options for each possible outcome.

Q1. What if Kathleen Wynne’s Liberals win an outright majority of seats after the election?

Kathleen Wynne is the incumbent Premier and her Ontario Liberal Party is the incumbent party.

When an incumbent’s party wins an election, the government of the day continues as before. Wynne would adjust her Cabinet based on the electoral outcomes and develop a new legislative program. Following the election, the Lieutenant Governor would read the Speech from the Throne, which opens a new legislative session and summarizes what the government expects to achieve during the legislative session.

Q2. What if Wynne’s Liberals win the most – but not a majority of – seats following an election?

When an incumbent’s party does not win a majority of seats, there is a convention that its leader has the right to meet the Legislative Assembly to test its support. This is because the incumbent was the last person to hold the confidence of the Legislative Assembly.

In this case, if the Liberals were able to obtain enough support of others in the Legislative Assembly (individual MPPs or parties), they could continue to govern as a Minority Government or perhaps through a Coalition or Legislative Accord.

If the Liberals were unable to obtain such support and were defeated through a confidence vote, however, the Lieutenant Governor would make enquiries about whether another party leader could hold the confidence of the Legislative Assembly. If such a governing arrangement existed in the Legislative Assembly, Wynne would either resign as Premier or be dismissed by the Lieutenant Governor, and the leader of the other party who could hold confidence of the Legislative Assembly would be named Premier.

If no governing arrangement were possible, the Lieutenant Governor could call for another election (on the advice of the Premier).

Q3. What if either Tim Hudak’s Progressive Conservatives or Andrea Horwarth’s NDP wins a majority of seats following an election?

When an opposition party wins a majority of seats following an election, the incumbent Premier usually resigns. However, there is no constitutional requirement to do so. The Premier might refuse to resign and carry on until the Assembly met to express its confidence (or lack thereof). If the incumbent government could find the votes in the Assembly to continue, it would be able to do so. If defeated however, the Lieutenant Governor would ask whether another party could win a confidence vote.

Usually, of course, the party that wins the most seats in the election would have the opportunity to try and form a government. In this case, Mr. Hudak or Ms. Horwarth would be named Premier and would develop a legislative program. The Lieutenant Governor would read the Speech from the Throne to open a new legislative session.

Q4. What if Hudak’s Progressive Conservatives or Horwarth’s NDP wins the most – but not a majority of – seats following an election?

When an opposition party wins the most seats (but not a majority), the convention still applies that the incumbent Premier has the right to meet the Legislative Assembly to test its support. In this case, if the Liberals were able to obtain enough support of others (individual MPPs or parties) in the Legislative Assembly, they could continue to govern as a Minority Government or perhaps through a Coalition or Legislative Accord.

Wynne herself has said that she would not take advantage of this option, but she would be within constitutional conventions to do so.

If the Liberals were unable to obtain such support though and were defeated in a confidence vote, the Lieutenant Governor would ask whether another party could hold the confidence of the Legislative Assembly. If such an alternative governing arrangement existed, Wynne would either resign as Premier or be dismissed by the Lieutenant Governor, who would then call on the leader of the party who could hold confidence of the Legislative Assembly.

Typically, the party with the most seats following the election would have the first chance to govern. In this case, either Mr. Hudak or Ms. Horwarth would be named Premier.

If no governing arrangement were possible, the Lieutenant Governor could call for another election (on the advice of the Premier).

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My research is based on the results of a survey of political scientists and constitutional scholars who had published in relevant substantive areas in the Canadian Journal of Political Science, the Canadian Political Science Review or presented relevant papers at Canadian Political Science Association Meetings during the last five years. Sixty-five of the 120 contacted responded between February and April 2014. 

For more including the conference paper and CPSA presentation (opens PowerPoint) visit http://voices.norwich.edu/johanneswheeldon/current-research/surveying-canadian-scholars/.

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Dr. Johannes P. Wheeldon is an Assistant Professor at the School of Justice Studies and Sociology at Norwich University in Northfield, Vermont. He can be found on Twitter @JusticeLawDev.

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Wheeldon’s survey revealed some significant differences of opinion amongst scholars on these questions, however:

On Elections:

Q1. How do survey participants view elections in Canada?

     33 (51%) – Governments selected based on who wins the most seats (the Flanagan view)
     30 (46%) – Parliaments are elected, then Governments are selected (the Forsey view)
     [2 (3%) – Other/NA/DK/WS/Unsure]

Q2. Does PM/Premier resign if Opposition wins majority in an election?

     31 (48%) – PM/Premier has no duty to resign
     30 (46%) – PM/Premier has duty to resign
     [4 (6%) – Other/NA/DK/WS/Unsure]

On Incumbency:

Q3. Can PM/Premier meet House following an election in which an announced coalition of parties wins combined majority in the House?

     51 (78%) – Yes
     12 (18%) – No
     [2 (3%) – Other/NA/DK/WS/Unsure]

Q4. Can PM/Premier meet House following election when opposition wins most seats (not majority) and plans to govern through unannounced coalition?

     37 (57%) – Yes
     24 (37%) – No
     [4 (6%) – Other/NA/DK/WS/Unsure]

Q5. Do benefits extend to the PM’s chosen successor who wants to test support in House following election in which Opposition wins a majority?

     36 (55%) – No
     20 (31%) – Yes
     [9 (14%) – Other/NA/DK/WS/Unsure]

On the role of the Governor General:

Q6. How should GG resolve constitutional debates when called upon to do so?

     31 (48%) – Consider fundamental principles of parliamentary democracy
     17 (26%) – Defer to the government unless it has formally lost confidence
     [17 (26%) – Other/NA/DK/WS/Unsure]

Q7. Correct course of action when PM/Premier wants successor to test support in House?

     24 (37%) – Commission leader of party who won most seats
     12 (18%) – Make enquiries to find person most likely to hold confidence
     [29 (45%) – Other/NA/DK/WS/Unsure]

Q8. Correct course of action when PM/Premier loses confidence vote in House?

     35 (54%) – Make enquiries to find person most likely to hold confidence
     24 (37%) – Dismiss PM and call on leader of party that won most seats
     [6 (9%) – Other/NA/DK/WS/Unsure]

 

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11 Responses to “UPDATED: GUEST POST – The Morning After: Valid Minority Government Options in Ontario”

  1. Paul O says:

    I agree that it is very sad that even so-called experts get it so very wrong when it comes to our (unwritten) Constitutional norms.

    Yet they are much simpler than some would suggest: looking back to Runnymede, just as King John was made the subject of the Barons, we see the authority of the Crown being made subservient to the will of the People.

    Yes, all authority is exercised in the _name_ of the Crown. But that authority is ONLY exercised on the ADVICE of the First Minister. (The only exception being certain Honours awarded directly by the Queen, Governor General, or Lieutenant Governor as the case may be.)

    If a Premier understands that they cannot regain the Confidence of the House, it is incumbent upon them to make an appropriate recommendation to the Crown, which recommendation is binding upon the Crown. The Premier may discuss the options in confidence with the LtGov, but it is not for the LtGov to “fire” a Premier. And any Premier who made extraordinary attempts to hold on to power would pay a _political_ price at the next election.

    So-called “Reserve” Powers are not powers exercised by the LtGov in the absence of advice from the Premier: rather, they are powers exercised by the Government without requiring the advice of the Legislature.

    Further to the point, if a Government loses the Confidence of the House, it is for them to regain that Confidence in a timely fashion: if they ‘win’ the next election, they are not ‘reconstituted’ but rather they *continue* as the Government, just as they did (in a constrained manner) during the election period.

  2. Wilf Day says:

    “Parliaments are elected, then Governments are selected (the Forsey view)” is also supported by being posted on the Parliamentary website, as initially commissioned by the Department of the Secretary of State of Canada.
    http://www.parl.gc.ca/about/parliament/senatoreugeneforsey/book/chapter_1-e.html

  3. Shadow says:

    What we need is a discussion around the promises leaders make during campaigns about what type of gov’ts they’re willing to enter into.

    Dion promised no coalition and then tried to build one. Wynne could very well do the same.

    Does this impact the popular legitimacy of GG decision making if they are seen to be enabling broken promises ?

    Will academics look like they are carrying water for left wing causes when they insist that coalitions are valid and fully constitutional while ignoring that people expect not to be lied to ??

    My own view is that leaders should simply say one way or the other whether they are open to collaborative governing arrangements.

  4. Malcolm says:

    The author skipped the possibility of a “Grand Coalition” of Liberals and Conservatives, which, given the close proximity of Liberal and Conservative ideologies, is actually the most logical (if not the most likely) outcome in a minority.

  5. Malcolm says:

    I think Paul O misses the possibility that the constraint on the vice-regal person acting without advice is purely conventional, and not written into law anywhere. Thus an extreme situation would (at least arguably) give a Governor General or Lieutenant Governor scope to act without advice. Doubtless there would be a political / constitutional cost to a vice-regal acting in this way, but it is not difficult to imagine circumstances where it might be justified … and might even garner broad public support.

    In Saskatchewan in 1991, as the Legislature was nearing the end of its constitutional life and the Conservative Party was plumbing new polling depths for an incumbent government, there was rampant speculation that Grant Devine might not offer the necessary advice for the Lieutenant Governor to issue the writ for an election. While we do not know what other advice Lieutenant Governor Fedoruk received, it is known that she was actively researching her options should the necessary advice not be forthcoming.

    Clearly the vice-regal person has capacity to act should a first minister render advice that is manifestly unconstitutional (or fail to render advice which would lead to an unconstitutional situation). Because such a unilateral act would be unconventional (not unconstitutional), it is unlikely that any vice-regal would choose to act without advice except in the most extreme circumstances. It is, in essence, the Nuclear Option of Canadian politics.

  6. Thomas Hall says:

    With respect, Paul O. has misconstrued the nature of the “reserve powers”. The Lt.Gov must dismiss a premier who, immediately after an election, loses the confidence of the House but refuses to resign when there is an alternative government available to assume office. Moreover, reserve powers are not exercised on the advice of the legislature, as he stated.

  7. Paul O says:

    Sad to see that one commenter chose to respond without even reading my comment, and others without doing their own research.

    Reserve powers are exactly as I have described them, though I will leave it to competent others to cite the authorities in which I rely.

  8. Shadow says:

    Well this discussion is unexpectedly moot.

    Alice have you seen any information or discussion on how Hudak fared with minority voters in this election ?

    From a distance his campaign seemed too far tilted rural and had a weird 50′s nostalgia vibe to it. On top of the foreign workers tax break diss in the last campaign.

    Harper has shown that if you want to win the suburbs you need to relentlessly court immigrant communities.

  9. Wilf Day says:

    Moot for the moment, but readers may be interested in the most unusual recent example of vice-regal discretion: the Tasmanian state election of 2010.

    In the previous legislature, the Greens had held the balance of power, but in the 2010 election both Labor (the government) and the (right-wing) Liberal opposition refused in advance to deal with the Greens if they held the balance of power again.

    So both leaders stupidly agreed that, if there was a tie in seats (as polls showed was very possible), the government would be formed by the party which had the largest popular vote.

    There was a tie. The Liberals had the larger vote.

    The incumbent Labor government therefore resigned.

    The Lieutenant-Governor, by a decision with written detailed reasons (good idea!), said the Liberal leader was not in a position to form a stable government, refused the resignation, and said he would wait for the House to meet.

    The Greens then reached an agreement with the bashful Labor Party.

    Ontario might have needed such a brave Lieutenant-Governor, if Kathleen Wynne had carried out her threat to resign as Premier if Hudak got one more seat.

  10. Paul McKivett says:

    Well, Ontario proved very interesting! I am both a Federal and Provincial Liberal here in Victoria, B.C.

    I think the above outline may prove equally worth considering when Oct, 2015 (should we make it that far) rolls around. I would think the same conventions apply. I am sure that after the federal by-elections are out of the way, we will see more analysis by Alice on what is happening vis a vis nominations, etc leading up to Oct, 2015. As she has pointed out, the Conservatives need to hold all their existing Ridings plus capture a number of the new Ridings to maintain a majority gov’t. That is going to be a serious challenge which will bring into play one of the above situations. Thanks for the Guest Post. Made for interesting reading and I am certain it will be quoted more in the days ahead.

  11. Shadow says:

    Wilf that is the worst of both worlds.

    Coalition whether you like it or not !

    Strategic voters have the right to know if policy will be tilted in a certain direction.

    Coalitions and accords are basically a blending of platform. A labour gov’t is a very different thing from a labour-green gov’t, someone might wish to vote liberal instead.

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