28 October 2008

The "right" to form a government

A lot has been said over the last few days about whether the party that wins the most votes but does not achieve a majoirty in its own right has the "right" (legal or moral) to govern. Others have chipped in on this debate from a number of angles. I'll be discussing the constitutional issues associated with the government formation process and the role of the Governor-General on Nine To Noon next Wednesday morning (5 November). In the meantime, though, one brief contribution on the topic. From a consitutional perspective, the relevant conventions about government formation are described in the authoritative speech of Sir Michael Hardie Boys given in 1997, following the first MMP election. The speech specifically addresses - and rejects - the myth that the largest party has the (first) right to form government. Rather, the Governor-General's obligation is to appoint the leader who has the "support of a majority of the House", that is, the leader of the party able to survive a confidence vote in Parliament. As others have pointed out, to date under MMP, that leader has been the leader of the largest party - but it should not be assumed that is the only option. See Sir Michael Hardie Boys, "Continuity and Change: the 1996 General Election and the Role of the Governor-General" (1997) 5 Waikato Law Review 1:
IV. THE CORE PRINCIPLES Through this public speaking and writing I tried, in essence, to make clear a few simple points: 1. The formation of a government is a political decision and must be arrived at by politicians. 2. My task as Governor-General is to ascertain where the support of the House lies. In an unclear situation, that might require me to communicate with the leaders of all of the parties represented in Parliament. 3. Once political parties have reached an adequate accommodation, and a government is able to be formed or confirmed, the parties could be expected to make that clear by appropriate public announcements of their intentions. At that point it might be necessary for me to talk with some party leaders. I would then expect to have sufficient information to be able to appoint a new Prime Minister, if that were required. 4. Throughout this period of negotiation, the incumbent Prime Minister remains in office, governing in accordance with the caretaker convention. The second of these points is the nub of the matter. In a parliamentary democracy, the exercise of my powers must always be governed by the question of where the support of the House lies. It is this simple principle which provides the answer to those who sometimes suggest that in situations like that encountered by New Zealand after the last election, the head of state should simply call on the leader of the largest party to form a government. Size alone provides no reason to prefer a party if its leader does not appear to have the support of a majority of the House. It is better to wait for negotiation among the parties to produce a majority. This principle is also the answer to those who regularly write to Government House suggesting that the Governor-General dismiss the government and call another election, based on perceived public sentiment, dissatisfaction with particular actions, or opinion polls. To repeat: in a parliamentary democracy such as ours, the exercise of the powers of my office must always be governed by the question of where the support of the House lies. If that is unclear, I am dependent on the political parties represented in the House to clarify that support, through political discussion and accommodation.

1 comment:

Anonymous said...

Thank you Dean for providing a calm and reasoned overview of the conventions. I'll admit I'd confused the practice with the principal and had not read this speech.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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