It seem this is the election that just won’t quit. The latest thing keeping us all in suspense is the issue of electing a Speaker of the Legislative Assembly. Electing a Speaker is the first order of business for a new legislature; until this task has been completed, no other business can be conducted. If no Speaker can be elected, then, the legislature will be unable to function. This would be grounds for dissolving the legislature and calling a new election. The problem is that the Liberals will not want to put forward one of their own members and for election, because this would bump up the NDP and Greens’ razor thin majority at a time when every seat counts. And the NDP and Greens will not want to put forward one of their members for election, because this would cost them their combined majority over the Liberals. Moreover, the Speaker is, by convention, required to break ties to continue debate whenever possible, in favour of the government on matters of confidence and supply, and in favour of the status quo on all other matters. As J. D. R. Brown has pointed out, this means a Speaker elected from the Green or NDP ranks would have to support the Liberals’ throne speech and keep the government alive; Brown refers to this as “the Milliken Gambit.” If no Liberal stands for election, the NDP and Greens would have to choose between a deadlock resulting in a new election, or face the prospect of having one of their own members sustain the Liberal government in power.
From a political standpoint, I think it would be foolish for the Liberals to use this tactic to try to remain in power or force another election. And I don’t think the Liberals are foolish. If they intended to pursue this course, Premier Clark would not have signalled so strongly that we should expect a change in government following the throne speech, and no new election. I also think it’s unlikely that all 43 Liberal MLAs will be able to resist the lure of the Speaker’s office, especially now that their prospects of drawing a ministerial salary have declined so sharply. But it’s still worthwhile to consider the hypothetical, remote as it may be — especially in an election that has already been so full of surprises.
I don’t think the problem is as serious as Brown makes it out, though. Recall that conventions are non-legal rules, adjudicated and enforced by political actors (a category that includes you and me) rather than the courts. Recall also that conventions are observed for a specific purpose: to promote responsible government as a form of democratic rule. If observing a convention would subvert the purpose for which that convention was established, then one is at liberty to break with convention and argue that it ought not to apply under the circumstances. If the relevant political actors agree with this judgment, no one can be penalized for the breach of convention. And because Brown’s scenario depends on the validity of the convention that binds the Speaker to break ties on key votes in favour of the government, it’s important to ask whether the convention is in fact valid under the circumstances, given the purpose the convention is supposed to serve.
My view is that the convention is not valid under the circumstances. The office of Speaker exists to facilitate the functioning of the Legislative Assembly as a democratic lawmaking body and confidence chamber. This is also the purpose for which the convention exists. The question, then, is whether the Speaker can facilitate the functioning of the Legislative Assembly as a democratic lawmaking body and confidence chamber while observing the convention. So first, let’s consider the political context of the incoming Legislative Assembly.
Clearly a majority of incoming MLAs do not have confidence in the incumbent government. They have expressed this by signing an agreement to defeat and replace the Liberals in government, if possible. There is every reason to expect that the combined NDP and Green majority will follow through on their agreement to defeat this government if they have the opportunity to do so. Of course, it’s very important to remember that this form of expression carries no constitutional weight. Confidence can only be won or lost in the legislature. However, the agreement does carry considerable political weight.
The agreement between the two parties represents a successful compromise between officeholders from parties supported by 57 percent of voters in BC, whereas the Liberal caucus represents a failure to compromise by officeholders from a party supported by around 40 percent of voters. Again, the concept of “popular vote” does not figure in our constitution. Moreover, it would be a mistake to assume that just because around 40 percent of voters supported NDP candidates and around 17 percent of voters supported Green candidates, 57 percent of voters must support an alliance of Green and NDP MLAs. Nevertheless, it seems politically significant that MLAs from parties supported by an overwhelming majority of voters were able to come to a mutually acceptable deal, while the incumbent governing party — having lost seats, and with the narrowest plurality of seats and votes — was not. It’s also fair to say that while the concept of “popular vote” does not figure in our constitution, it is an important part of the political culture in which the constitution is embedded, and by reference to which various features of the constitution must be justified.
With this in mind, let’s return to the Milliken Gambit. To avoid dissolution before the legislature has a chance to do anything at all, the Greens and NDP are forced to elect a Speaker from their own ranks. The Speaker then follows convention and supports the Liberal government by casting a tie-breaking vote in its favour any time a matter of confidence comes up. However, he or she abstains from any vote where the government’s survival is not at stake.
So, in this case, would the Speaker’s observance of convention facilitate the functioning of the legislature as a democratic lawmaking body? Clearly not, because the legislature would be deadlocked on all ordinary legislation. In order to pass any law, the government would need the reach a compromise with at least one opposition party. But the Liberals have already failed to reach such a compromise with the Greens (that’s the only reason why the Speaker’s role has come up!), and they’re hardly more likely to reach a compromise with the NDP. So it’s reasonable to expect that the legislature will not be able to pass any ordinary legislation as long as the Liberals are in power.
Would the Speaker’s observance of convention facilitate the functioning of the legislature as a confidence chamber? Again, I think the answer is clearly no. It is beyond doubt that a majority of MLAs do not have confidence in the government. The scenario we’re considering is an attempt to prevent a majority of MLAs from expressing their want of confidence in the government. In other words, it amounts to deploying convention against the purpose for which it was instituted.
If all Liberals refuse to stand for the position of Speaker, then, there is at least a prima facie reason for a Speaker recruited from the Green or NDP caucuses to break convention and — at the very least — vote against the incumbent government’s throne speech. This would be sufficient to defeat the Milliken Gambit.
Although the choice to break convention in this case is justifiable, I think, it would not be without cost. As Phillipe Lagassé points out, for the Speaker to consistently break ties in the NDP’s favour would harm the expectations of impartiality attached to the office. It is therefore to be hoped that the Liberals choose not to put the Speaker in this position.