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Yaroslav Baran

The B.C. Conundrum

The coming week will mark the beginning of a protracted political drama in British Columbia, with Premier Christy Clark recalling the legislature for a Speech from the Throne — presumably step one on the ill-fated road to try to establish the confidence of the legislature in her government. Many have predicted it will amount to Kabuki theatre, with an inevitable slow-motion enactment of a pre-ordained script: that the government will fall on the Speech from the Throne, and that the second-place New Democrats will be given a shot at governing, backed by the Greens, with a combined one-seat majority. A four-year deal purports to underpin the small-c coalition of NDP and Greens, suggesting a period of stability and NDP governance. 

That’s the theory. The reality is that a combination of procedure and math conspire against both a Liberal and NDP-led government, making a coalition or minority government almost impossible to sustain. Once we drill down into the rules that govern Westminster parliaments, a one-seat vote margin is structurally insufficient to govern. This means the assumed scenario is anything but certain. In fact, it is highly unlikely to pan out. It also means there are multiple possible scenarios ahead for Victoria, and the province’s political future will hinge on several weeks and months of crafty manoeuvrings hinging on the esoteric minutiae of ancient procedural conventions.

It makes sense to start by recapping the framework in which our governments are established.

First, an important principle: governments and parliaments are different beasts with different rules, cycles, mandates and even numerical identifiers for posterity. Our elections do not elect our governments; they elect our parliaments. Our viceroys (governors-general or lieutenant-governors) appoint our governments. Technically, governments continue through elections, but must always enjoy the confidence of the legislature in order to function. But whenever there is a critical impasse between the government and the legislature, one or the other has got to go: there needs to be either a new government or a new parliament.

Because our governments are not dissolved by elections, the incumbent premier always has the prerogative of trying to continue to govern by testing the confidence of the new house — this is why the existing government in BC is entitled to write the first Speech from the Throne, notwithstanding its slight numeric disadvantage vis-à-vis the John Horgan-Andrew Weaver pact.

A second important principle — one to which we bore witness in 2008 at the federal level when the Governor General granted Prime Minister Stephen Harper’s request for prorogation — is that the Queen (or governor in her place) has only one official advisor at any given time: the premier. By centuries of established convention, the Queen appoints a premier, then delegates governance authority to that premier’s cabinet. The Crown can replace its premier advisor, but it cannot have a second advisor. “Your Excellency, thank you for your trust in me. I am honoured to offer my advice, but take my advice only – as an alternative, you may fire and replace me.” There are no multiple inputs. 

The practical manifestation of this is that BC’s lieutenant governor is theoretically blind and deaf to the fact of there being a majority coalition agreement between the NDP and Greens until such time as the current BC Liberal government falls. Only then is the lieutenant governor able to receive information that there is another leader (in this case, Mr. Horgan), who can potentially form a government that enjoys the confidence of the legislative assembly.

The LG is the steward of these decisions — whether to dismiss a government or a parliament, and which potential exclusive royal advisor is given an opportunity to establish the people’s confidence in that role. Established precedent, mind you, indicates that in the current scenario, NDP Leader John Horgan would indeed be given a shot, should the Clark government fall, because he has a valid prima facie case that he can do it.

All of this, however, hinges on successfully opening the legislature. And that means electing a speaker. As the neutral referee of proceedings, the speaker does not vote, except to break a tie — and even those cases are highly restricted by convention. Given the tight seat margins in this case, neither side wants the Speaker to come from their own ranks, given the diminished voting power that would cause for their team.

In fact, if both sides of the legislature stubbornly refuse to allow one of their MLAs to take the job, it could theoretically be the first trigger of another election. If the house cannot open, it cannot operate. It’s dysfunctional, so let’s form a new one.

According to the latest plans, the BC Liberals have agreed to let one of their own take the chair for purposes of the Throne Speech, but are refusing to keep the position after a loss of confidence. For their part, the NDP have already tried a public relations campaign to try to shame the Liberals into doing the job on an ongoing basis. Clearly, both sides recognize the high cost of losing a voting MLA.

But the problem goes deeper than that. One could imagine a shaky government where a New Democrat presides, the voting numbers are evenly split at 43-43, and the coalition governs with the Speaker breaking ties in the government’s favour. Even this seemingly logical scenario is untenable. By convention, the Speaker is only able to vote “for status quo”, and status quo is highly defined in precedent. For example, at “second reading” (the first vote on a bill – approval in principle only) a Speaker would vote to support the legislation because status quo is defined as keeping the debate going – let’s see what comes of this legislative project. At third reading, however (the final vote on the final product) a Speaker is bound to vote against legislation in case of a tie. Here, status quo is defined as the world as we know it without this new law. That means in a tie-vote environment, it would be impossible for an NDP-Green coalition to pass a budget bill. And budget bills are, intrinsically, questions of confidence.

But the troubles would arise even sooner. The BC legislature has a practice of sending legislation to Committee of the Whole rather than thematic standing committees, as is the case in Ottawa. When a parliament goes into a “Committee of the Whole House”, it means the legislature turns itself into a giant committee meeting: the Speaker leaves the chair, the royal mace comes off the table, and the Deputy Speaker (officially styled “Chair of Committee of the Whole”) presides over the committee meeting. Imagine a scenario where both the Speaker and the Deputy Speaker are New Democrats — a virtual inevitability to get to a Horgan government. With the Speaker out of the room and the Deputy Speaker as the neutral presiding officer, Christy Clark’s BC Liberals would suddenly have a one-vote advantage over the government. In short, the Liberals could ensure an NDP-Green government budget would never see the light of day: another election trigger.

Additional wrinkles: the NDP have floated a trial balloon that the first order of business would be ramming through a change to the Standing Orders (the procedural rulebook) to allow the Speaker him-or herself to preside at Committee of the Whole, and therefore eliminate the one-vote disadvantage. Possible, but constitutionalists may decry that as institutionalizing a conflict of interest, the Liberals would certainly launch a PR campaign about cooking the rulebooks, and perhaps most importantly, with a New Democrat in the chair who is bound to vote for status quo, a change to the rulebook can’t really come to pass. Status quo, by definition, means not changing parliamentary procedure.

Enter the final variable:  free agency. On any of these measures — amending the standing orders or passing government legislation at third reading — the Speaker could theoretically choose to buck the convention built on rare but delicate precedent, and break tied votes in the government’s favour. Despite the fact that this would be universally decried by constitutionalists and procedural scholars, the votes would nonetheless be valid. There is no recourse to appeal such votes, as the only court of appeal in a legislature is the Speaker him- or herself. The only actual sanction would be that scholars could decide by consensus not to enter these (albeit valid) votes in to the tomes of jurisprudential precedent. So, a rogue Speaker is another potential game-changer in this unpredictable political context.

In the end, it will almost certainly be political communication that determines what happens and who ultimately prevails. Governments and parties always use public opinion – not the actual rules of engagement – as the ultimate bar against which to test their activities. If they can push a rule or convention past its limit, they will do so, provided they can carry the public with them. That means we should expect a heavy dose of political messaging as the next days, weeks and months unfold. Christy Clark’s throne speech will be polarizing.  “If you vote against this agenda, you are voting against X, Y, and Z.”  And those will all be retail points of campaign fodder. For his part, Mr. Horgan will try the democratic legitimacy card: “60 per cent of British Columbians voted for our two coalition parties, so the minority has a moral obligation to allow this to work.”

It will be a bloody war for the minds of the public. And that war will almost certainly end in yet another election before 2017 is out.

Contributing writer Yaroslav Baran is a parliamentary proceduralist and a principal at Earnscliffe Strategy Group. yaroslav@earnscliffe.ca