Friday, May 2, 2014

Talk of an early federal election

I am hearing from people to the left of the Conservatives about the potential of an early federal election.  I do not think it will happen because I think the risk of trying to call one is too high for the government.  I also do not think it will happen because the winning conditions are not there for the government at this time.

Right now we have a fixed election date within the Elections Act.  To call an early election the Governor General would have to over ride the will of the parliament as set out in the law with a clear reason for an election.

The Federal Court of Appeal heard a case in relation to the calling of the 2008 federal election.  In the end they said the Prime Minister could advise the Governor General to hold an election, what they did not do is say of the Governor General had to take the advice.  

A relevant section of the Federal Appeal Court decision:
But under our constitutional framework and as a matter of law, the Governor General may consider a wide variety of factors in deciding whether to dissolve Parliament and call an election. In this particular case, this may include any matters of constitutional law, any conventions that, in the Governor General’s opinion, may bear upon or determine the matter, Parliament’s will as expressed in subsection 56.1(2), advice from the Prime Minister, and any other appropriate matters

What is makes clear is that it is up to the Governor General to decide if there is a case for an election to held other than on the date set forth in the Elections Act.

Our constitutional and legal framework does allow for some real powers to be exercised by the Governor General or the Lieutenant Governors in the provinces.  It is the decision of the Crown when the election will be held and who will form the government.  In most cases it is clear who will be the government because of the seats each party holds after the election.   But it is not always clear.

  • In 1925 the Liberals under Mackenzie King lost the election to the Conservatives but convinced the Governor General to they should stay in power because they could count on the Progressives.   When King lost the support of the Progressives he asked for an election only eight months after the previous one.  The Governor General refused and allowed the largest party in parliament to govern.  This was the King-Byng affair and even though the Governor General acted within all the rules he was supposed to, it became a constitutional crisis.
  • In 1929 in Saskatchewan the Liberals won the most seats but the second place Conservatives formed a coalition government with the Progressives even though the Liberals wanted to continue governing.
  • In 1941 in BC Liberal premier of BC Duff Pattullo won the most seats but had a minority.   His party wanted to form a coalition with the Conservatives to govern as a majority and the Lieutenant Governor of BC removed him as Premier and appointed John Hart.
  • In 1952 in BC Social Credit won a minority government with less support from the public than the CCF.   Social Credit did not have a leader.  Social Credit elected a leader a month after the election but the Lieutenant Governor did not immediately appoint WAC Bennett as premier.   Social Credit had one more seat than the CCF but the CCF argued that they could get the support of MLA Tom Uphill.   WAC showed the LG that Tom Uphill was willing to support Social Credit and on that basis he was sworn in on August 1st 1952
  • In 1985 in Ontario the PCs won the most seats but had a minority.   Frank Miller initially tried to govern but lost a vote of non-confidence.  The Liberals then approached the Lieutenant Governor with proof they would have a stable government and they were allowed to govern.

These are some of the examples where the Crown has exercised their reserved powers in formation of a government.

The Crown can also call an election without the advice of first minister.   This happens normally when there is a vote of non-confidence in the house in the government.   Federally this happened in 1979 and 2006 most recently.   There is no do over when this happens, the sitting first minister can ask to try and form another government but in this case the advice of the first minister goes against the will of the parliament and will be refused by the Crown.   The Crown retains the right to call or not call the election but that power is constrained by tradition and constitutional precedence.

People will argue that the 2008 election was called by the PM outside of the fixed election date and that shows the PM still has the power to call an election whenever for any reason.  I do not agree and I think it is a misreading of the Federal Appeal Court decision on the issue.  

I think it was clear to the Governor General that the first Harper government did not have a functional minority government.  When Harper won the 2006 election he was 31 seats short of a majority and could only govern at all with the support of the official opposition or a party opposed to the existence of Canada.  This was not a tenable position for the government.  When David Emerson crossed the floor it was possible for Harper to seek support from the NDP and independent to govern.  Even then the government was a weak one and election was inevitable.  Only a fool of a Governor General would not have granted an election because there was no alternative government possible.

People will than raise the issue of the 2008 prorogation of parliament.  I think the decision of the Governor General at the time was the correct one because not to have done so would have put the country back into an election almost immediately.  

The suggested Liberal-NDP coalition government would have had 114 seats to the Conservatives 143.  This is not a stable government.  Only with the support of the Bloc would they have had enough seats to govern but that then opens up an issue for the Governor General - should the Crown appoint a government that relies on the support of a party that is opposed to the existence of the country?   If the Liberals and NDP had enough seats to have a majority I think it would have been right and appropriate to make them the government but the addition of the Bloc likely ruled this out as an option.

The powers of the Crown are strongly influenced by time and tradition and in Canada over the last ten years this has meant fixed election dates have become the norm where a government has a majority.   In 2008, when Harper called the election, only one fixed election had been held in Canada.     Since then we have had 11 more fixed elections.   No jurisdiction in Canada where the government has had a majority has anyone attempted to call an early election if there was a fixed election date.   This is setting a significant precedence in the country.

So what would happen if a leader of a majority government were to ask for an early election?    The Governor General could say no on the basis of the act which is the will of the parliament which over rides the simple political interests of the Prime Minister.  Also, the government has a working majority and does not need an election to be able to govern.  If the Prime Minister gets a no we have a constitutional crisis.  This constitutional crisis would be a nightmare politically.

To avoid a potential constitutional crisis the Prime Minister needs to either change the act to get rid of the fixed election date or lose a vote of confidence in the parliament, neither of which would play out well in politics.

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