Election 08: constitutional tid-bits

"Prime Minister Elect" This is an awkward term that sits awkwardly with our traditions and constitutional process for determining the head of our Executive. In a formal sense, the Prime Minister is appointed by the Governor-General under his or her reserve prerogative powers (see LAWS179: "NineToNoon: The election and government formation"). In a substantive sense, voters do not "elect" a Prime Minister. They do not vote for a Prime Minister, like they do with the President in the United States. Nor do they actually "elect" a government under MMP. Nowadays our system contemplates the indirect election of governments, that is, voters elect parliamentarians who are then charged with the function of determining a government through a process of coalition and confidence-and-supply negotiations (see Joseph, ""MMP and the Constitution: Future Constitutional Challenges"). Perhaps a better term might be "Prime Minister Designate"? Cabinet Collective Responsibility There was a comment made over the weekend that Sir Roger Douglas might not want to sit around the Cabinet table and may prefer to be a Minister Outside Cabinet, because then he would not be bound by Cabinet collective responsibility. This is incorrect. Para 2.27 of the Cabinet Manual provides:

Cabinet Ministers, Ministers outside Cabinet, and Ministers of State 2.26 ... 2.27 Ministers outside Cabinet have full legal powers as Ministers, and may be appointed to full portfolios. They have the same role, duties, and responsibilities as Ministers inside Cabinet, and are also bound by the principle of collective responsibility. (See paragraphs 5.22 - 5.28.) They do not attend Cabinet, but, with the agreement of the Prime Minister, may attend for particular items relating to their portfolio interests. They are usually members of one or more committees, attending other committees where relevant.

And, of course, both Winston Peters and Peter Dunne have been bound by Cabinet collective responsibility during their tenure as ministers outside cabinet, subject only to the "agree to disagree" provisions that their parties have been able to negotiate in confidence and supply agreements.

Constitutional transition I've addressed the timetable for transition and operative caretaker convention in an earlier post: > LAWS179: "Election 08 - the constitutional transition"