5 November 2008

NineToNoon: The election and government formation

> RadioNZ: "NineToNoon - Legal Commentator - Dean Knight (5/11/2008) [or mp3] The post below is an expanded version of some of the things discussed with Kathryn Ryan on NineToNoon.

Background As at Saturday approaches, there's really one important matter from a constitutional perspective: the formation of the government following the election. There are four important questions we need to address: - Who is responsible for determining who the next Prime Minister and government is? - How do they determine that? - What process do they undertake when determining that? - What happens after it has been resolved (or not resolved)? The Cabinet Office has helpfully collated lots of useful information about this process, and has made it publicly available on its website: http://www.cabinetoffice.govt.nz/

Who is responsible for selecting the next Prime Minister? It may surprise some people to realise that it is the Queen herself who is ultimately responsible for selecting or appointing the Prime Minister: her most senior responsible adviser. It's one of the (Royal) prerogative powers or powers of the Sovereign.

However, unsurprisingly, the Queen steers well clear of New Zealand during election time!

That responsibility has been formally delegated to the Governor-General, Anand Satyanand, under clause 10 of the Letters Patent (one of the formal legal instruments of the Monarch). But usually the Governor-General simply acts on advice of the government? How does it work in the context where there is no government? Although the Governor-General formally makes many of our most important decisions (signing new laws and regulations, dissolving Parliament, etc), the most important constitutional convention says he must act on the advice on his responsible advisors, that is, the Prime Minister and other Ministers. That ensures decisions made have democratic legitimacy.

But when it comes to forming a new government, the Governor-General must act independently and makes his own judgement – there are no "responsible advisors" with a democratic mandate to advise him. This is what we describe as one of the reserve powers, decisions that are "reserved" to the Sovereign or their local representative to make themselves.

We didn't always think the decision about who is entitled to be Prime Minister was made by the Governor-General themselves. Historically there was some suggestion that the outgoing Prime Minister advised the Governor-General of their replacements. But this view has been properly debunked - an outgoing Prime Minister does not have the confidence necessary to advise the Governor-General on such matter.

If it's the Governor-General who decides who should be appointed Prime Minister, how do they decide who to appoint? As with many decisions in constitutional law, although the Governor-General has the power to appoint the Prime Minister and government, that power is not unfettered. There are important limitations on the exercise of that power.

Here it is fettered by constitutional convention – those fuzzy customs that are so important within our constitutional convention.

What is this the convention? And where do we find it? There's a couple of places where we can find a description of the conventions that apply and must be honoured. - First, there's the handy Cabinet Manual. It describes in summary form the basic nature of the conventions. - Secondly, there's also another quite important constitutional source: notable speeches from former Governors-General. We can add those to our taxonomy or list of sources within our "unwritten" or "customary" convention.

In particular, our first Governor-General to operate in an MMP environment – Sir Michael Hardie Boys – gave a number of speeches on the topic. There speeches are treated as being authoritative on the convention. They're thoroughly researched and carefully worded.

What does the convention say? The central point of the convention is that the selection and appointment of the Prime Minister and government needs to be done consistently with the democratic imperative.

The Governor-General is an unelected official who needs remain neutral and apolitical. The process of forming a government is political and the decision to form a government must be arrived at by politicians, in accordance with the chips dealt to them in the election. Borrowing words from elsewhere, they are "political decisions, politically arrive at".

The Governor-General's sole task is to ascertain the will of Parliament. That is, as Sir Michael Hardie Boys repeatedly put it, "to ascertain where the support of the House lies". That's the crucial phrase, and what gives the process its democratic foundation because it links the appointment of the Prime Minister to the product of the electoral system.

When acting in accordance with that test, a Governor-General can take comfort that they are acting consistently with the democratic imperative. If they deviate from it, we move into the zone of constitution crisis.

What's meant by the phrase "support of the House"? This means the government needs to enjoy the confidence of the House. That's the target for any prospective Prime Minister. With it they are entitled to govern. Without it they're obliged to resign and act in a caretaker capacity until a new government is appointed. It's the lifeblood of a government.

As our parliamentary guru, David McGee, says "strictly speaking, confidence is a negative and somewhat circular concept". A government retains the confidence of the House "for so long as it can avoid defeat on important parliamentary votes – those votes that involve confidence".

What votes involve confidence then? The basic point is that it's not every vote that the government needs to win. They can, and occasionally do, lose some votes on some bills and procedural matters.

Again, the question of what votes are confidence votes involves a degree of political judgement, but we basically know what we're looking for.

First, there might be an express vote of confidence or no confidence in the government or Prime Minister. That is, where the motion says something like "the House has no confidence in the government".

Secondly, there are implied votes of confidence. Those votes which relate to the "supply" of money to fund the operation of government. The Budget and the granting of imprest supply. Without parliamentary authorisation of expenditure, the machinery of government cannot operate. Hence we hear the term "confidence and supply".

Finally, the government can "declare" any vote on any Bill or issue effectively a vote on confidence.

In this context, an express vote of confidence or no-confidence will be one of the first hurdles of any new government.

Historically, no confidence votes were more common. No confidence votes are usually moved as an amendment to another motion before the House. But nowadays, under MMP, its been more common to see a positive motion of confidence in a government being put. There's no real difference between the two (apart from when the vote is tied where the effect of the vote can be a bit more tricky to work out).

Under the standing orders, there are only a few debates which are broad enough to allow for a motion of no confidence: the Address in Reply (the first debate of the Parliament), the debate on the Prime Minister's Statement (the first debate of each year) and the Budget date etc. But the Prime Minister is usually appointed before the House is reconvened? Essentially the Governor-General's task is to ascertain, as conclusively as he can, which parliamentary grouping will survive that vote of confidence. And he will probably be called on to do so before that House reconvenes and the vote actually happens. Subsequently, that first confidence will act as the "check or balance" on the Governor-General's judgement – it should confirm his assessment of where the support of the House lies.

He will be looking for statements from the political parties confirming that they can command the support of the House. Things like signed coalition or confidence and supply agreements. Clear and unequivocal public statements of support, etc.

There are a range of coalition or governance arrangements which can ensure that a grouping can maintain the support of the House. You might think of them in terms of a spectrum: - a formal coalition agreement, like Progressive has, where the support party has a Minister at the Cabinet table; - a confidence and supply agreement, like NZF and United have, with or without Ministerial positions, where the support parties agree to support the government on confidence and supply; - co-operation agreements, like the Greens have now, where the support party agrees to abstain on votes of confidence; - other more innovative arrangements (there's been some speculation that the Maori Party might seek governance arrangements we have not yet seen before).

As we've heard recently, government formation is much more complicated that one main party getting more seats than the other. Being able to construct or garner a coalition that commands the support of the House is more important.

What about this claims circulating that there is a "convention" that the largest party in the House gets first chance to form a government or is legally or morally more legitimate as a government? From a constitutional or legal sense, there's no basis for such claims. This suggestion was specifically rejected in one of the Sir Michael Hardie Boys' early speeches on government formation under MMP (1997 Harkness Henry lecture):

"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."

Quite simply, there is no such constitutional convention. Quite the opposite. The potential arrangements being queried are consistent with the democratic imperative; they ensure the government reflects the majority of votes expressed in terms of MPs. And, in my view, this claim has no more foundation when expressed in terms of "moral" legitimacy. We know what the ultimate target is: commanding the support of the House. That's just an attempt to influence the nature of government formation by trying to change the terminology.

I sometimes make an analogy between the race for PM and a Ranfurly Shield match. My team, Wellington, would play Canterbury and would often score lots of tries. But in the way they often do, the Canterbury team would convert their pressue into points through lots of penalties, and occasionally a drop-goal or two. And much to my disappointment, they'd get more points on the board at the end of the day.

I know my team, Wellington, was the more enterprising and scored many more tries. But the other team scored more points. A "moral victory" for my team? Not really. And, in any event, that's not going to be enough to bring the Shield home.

Returning to the question of how the Governor-General determines who has the support of House, practically how does this happen? Again, this is governed by the need for the Governor-General to be neutral and apolitical. At least in the first instance, the Governor-General will leave the parties engage in their negotiations. Importantly, the Governor-General does not actively facilitate negotiations. (Unlike, say, Denmark where there's a "Queen's Round" where the parties have an immediate audience before the Queen and negotiations facilitated by a Royal Investigator.)

If the Governor-General does anything on Sunday, it will simply be to reiterate these principles.

Once a party considers they have the necessary support, it is expected that the parties will announce that fact and provide the necessary confirmation. Again, the need to avoid perceptions of bias or interference means the Governor-General has decreed that such announcements should be done publicly.

Following any announcement, there may be a need to the Governor-General to communicate with the party leaders to ensure that he has sufficient information to satisfy himself that he can appoint the Prime Minister. If there is any need for communication, this will be undertaken through the Clerk of the Executive Council (who is also the Secretary of Cabinet), who provides official, independent support for the Governor-General during this time.

If the situation continues to be unclear after negotiations, the Governor-General may need to communicate with the leaders of all political parties; at this point, there may be some need for more active facilitation of negotiations by the Governor-General - but to date this has not been needed.

If it's still not clear, the support of the House may be tested on the floor of the House in votes of confidence. There's no constitutional need for the position to be settled before the Parliament must be reconvene, although it sets an incentive or informal deadline (in 1999, the government wasn't formed until the eve of the opening of Parliament).

And, of course, if the Parliament remains hung and no-one can command support, the House may need to be dissolved by the Governor-General and fresh elections called. What are the key dates? 9 November 2008: Election 22 November 2008: Official results declared 27 November 2008: Return of the writ (Chief Electoral Officer reports the election results back to Parliament) 28 November 2008: Declaration of list members elected 8 January 2009: Parliament must be summonsed (Commission opening of Parliament, followed by state opening of Parliament and Speech from the Throne the following day).

Who is in charge while this all takes place? During this period of government formation, Helen Clark will continue as Prime Minister, along with her Ministers, but subject to the caretaker convention which prevents any significant decision-making without cross-party consultation.

So what happens when the Governor-General has determined who has the support of the House? An announcement will be made by the Governor-General. A formal swearing-in ceremony will follow quite quickly, even if the government is the same as before.

Once the Prime Minister is appointed, the Governor-General once again has a responsible advisor and we revert to the convention where the Governor-General acts on his or her advice. This allows the Prime Minister to then advise the Governor-General about what other Ministers ought to be appointed and to what portfolio.

Can the decision to appoint a Prime Minister be challenged in the courts? The Governor-General's decision is what we describe as being "non-justiciable" and not able to be challenged in the courts.

Here we have some recent authority from the courts. Although the circumstances were a little different, the Fiji High Court considered this very question in a legal challenge to their President's decision to dismiss and appoint a new Prime Minister following the 2006 coup (Qarase v Bainimarama). It ruled that the courts were not entitled to review the decision.

REFERENCES: - Cabinet Office, "Election 2008" - Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand's Constitution and Government (2004, OUP, Oxford) - Philip A Joseph, Constitutional and Administrative Law in New Zealand (3 ed, 2007, Brookers, Wellington) - David McGee, Parliamentary Practice in New Zealand (3ed, Dunmore Press, Wellington, 2005) - Sir Michael Hardie Boys, "The Role of the Governor-General under MMP" - Sir Michael Hardie Boys, "The 1997 Harkness Henry Lecture: Continuity and Change" - Sir Michael Hardie Boys, "Governing under MMP: the Constitutional and Policy Challenges"

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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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