How long could Clark stay in power… in the Twilight Zone?

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Days after the Greens and NDP signed a confidence and supply agreement that seems sure to bring down the Liberal government, some progressives’ exuberance has turned to doubt. The thought seems to be something like, “Our side doesn’t really get to win, does it?” Partly to try to inoculate my friends against this kind of sentiment, and partly because there are some interesting technical details to consider, in this post I’ll take a look at the most extreme option available to the Liberals if they really want to hold on at all costs.

Although Premier Clark has declared her intention to convene the legislature this month and given every indication that she will step down in the likely event that her government is defeated on the throne speech, a number of commentators have pointed out that she would technically be within her rights to delay the final reckoning for a while longer. The real deadline is supposedly at the end of September, as this is when the money authorized by the spring supply act is expected to run out. But in fact, it is theoretically possible for the government to last well into the new year, thanks to (relatively) obscure provisions in the Financial Administration Act concerning the issue of special warrants. To be clear, I don’t think this is at all likely to happen here in the real world. But it may still prove educational to take a little trip and see how the election aftermath might unfold in the Twilight Zone.

Special warrants, drawn up by cabinet and signed by the lieutenant governor, authorize government spending in excess of the amounts authorized by the legislature. They can only be issued under certain conditions. First, the legislature must not be in session. Second, the funds must either be urgently required to respond to a natural disaster, or the legislature must be dissolved for a general election. Whereas the federal law on special warrants fixes the end of the election period at 60 days after the deadline for the return of the writs, BC’s Financial Administration Act defines the general election period as ending “90 days after the first post-election appointment of the Executive Council.”

Although there’s been a lot of talk in the media (and to some extent even from politicians) about the possibility of Clark “forming government”, the fact is that as the incumbent she has no need to form government. She did that when she became the premier several years ago, and she’s been in power continuously since then. The law regarding special warrants shows why this point is not merely of interest to pedants. Because Clark and her ministers are already in government, and there has been no post-election cabinet shuffle, the 90 day countdown to the end of the election period (for the purposes of the Financial Administration Act) has not yet begun, and it will not begin until some new ministerial appointment is made (or Clark resigns and there’s a wholesale change in government). So unless Clark decides to shuffle her cabinet some time in the near future, she will still be able to request special warrants to cover the bills when the money runs out at the end of September.

Obviously this would be a gross abuse of the right to request special warrants, which are intended only to keep the government running and able to respond to public emergencies when the legislature is not available to authorize new spending. It would be the height of paranoia to suspect that the Liberals are considering anything so far-fetched. Still, it can’t hurt to get the facts right, and you never know when those facts are going to turn out to have a lot of practical relevance. To give an obvious example, for years reporters have been rolling their eyes at people who asked them not to use terminology suggesting that governments are elected. Having misrepresented the basics of parliamentary government for so long, when the BC election returned a hung parliament they found themselves scrambling to explain the system from the ground up. So, for the record, the true outer limit on the government’s ability to stall is set by section 5 of the Charter, which requires a sitting of the legislature at least once every twelve months. That means the legislature must be convened no later than March 16, 2018.

Update on June 12, 2017: This is now a moot point, because a number of new cabinet ministers were appointed today. This begins the 90-day countdown to the expiry of the authority for issuance of special warrants.

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