25 November 2011

Governments in transition – some constitutional FAQs

Some FAQs about the process of post-election government transition. If other questions arise, I'll add to the list as far as I can.

Who decides who is appointed Prime Minister?
This tasks falls to the Governor-General. It's one of the so-called "reserve powers", that is, those powers where the Governor-General is required to exercise an independent judgement, rather than merely acting on advice of the incumbent government.

(As an aside, there used to be a view – apparently still held in the UK – that it is the responsibility of the outgoing Prime Minister to advise the Queen of his or her successor. But the view properly taken in New Zealand nowadays is that, following polling day, a caretaker Prime Minister does not have the constitutional mandate, by themselves, to tender advice on who should be appointed.)

Who will the Governor-General appoint as Prime Minister?
The question of who to appoint is strictly controlled by constitutional convention and is grounded in democratic principle: "the Governor-General will appoint, as Prime Minister, the person who has been identified through the government formation process as the person who will lead the party, or group of parties, that appears to be able to command the confidence of the House of Representatives".

That's the goal. That's the be-all and end-all for a wannabe Prime Minister.

What is meant by the phrase "command the confidence of the House"?
Confidence is the life-blood of any government. It's often expressed in negative terms:

In practical terms, it means having a majority of votes on important votes in parliament:* at least 61 votes out of a House of 120 MPs. Or more if there is any overhang.

The important votes are:
- express motions of confidence or no confidence (such as is usually moved in the Address-in-Reply debate, ie the first debate of each Parliament);
- votes on Bills needed to obtain the authority of Parliament to expend money (ie budget Bills, because without approval to spend money, the government can't function);
- other votes on Bills and other matters declared by the government to raise questions of confidence.

* If it's really close, it might depend on whether the question of confidence is framed in a negative or positive way. For example, if the votes are split 60-60, a government will avoid a defeat on a motion of no-confidence, but will not have enough votes to pass a budget. Let's just say it gets a little tricky then…


How does the government ensure it commands the confidence of the House?
If one party has a majority of MPs in the House, they will automatically command the confidence of the House. Party processes and discipline mean they will always win an important confidence vote.

But we haven't had a single party majority government under MMP yet (although there is a reasonable prospect we might have one this following this election).

Under multi-party government usually seen under MMP, the way confidence is obtained and assured has become relatively settled.

One lead party, usually Labour or National, will negotiate coalition or confidence and supply agreements with other parties to ensure they have the necessary votes on matters of confidence.

From a constitutional perspective, the important term of those agreements is the one confirming the minor party's support for the lead party on matters of confidence and supply. Policy concessions and ministerial posts are nowadays provided in return for that important confirmation of support on matters of confidence.

For the current set of agreements see:

How does the Governor-General decide who should be appointed Prime Minister?
The Governor-General stays clear of post-election negotiations about the shape of government. The process is inherently political and is left to the politicians – the Governor-General does not anoint anyone or participate in the discussions. Involvement in those negotiations would undermine the Governor-General's independence and neutrality.

Once a political consensus is reached, the constitutional expectation is that the politicians will publicly announce the fact that arrangements have been settled which will see a set of parties commanding the confidence of the House. Clear evidence of such arrangements are also expectated, with signed confidence and supply agreements being the norm nowadays.

The announcements speak to both the public and the Governor-General, ensuring transparency. At this point, if the Governor-General needs to clarify any of the arrangements or to ensure that adequate evidence is provided, there may be some need to communicate with the parties involved – but this is usually done via the Clerk of the Executive Council.

How long does the process take and is there a time limit?
There's no formal time-frame for the government formation process. The time it takes very much depends on the cards dealt to the parties on election night.

But the sky won't fall if it takes a while. The caretaker convention means there is still an incumbent Prime Minister and government, albeit operating on a limited basis (see below).

The compulsory first sitting of Parliament (under s 19 of the Constitution Act 1986, 6 weeks after the day fixed for the return of the writs or, according to my maths, by 26 January 2012 at the latest) is somewhat of a milestone, but only a practical or symbolic one. The first sitting day tends to encourage the parties to ensure a deal is stitched up.

But it's not a constitutional deadline and it's not the end of world if a deal isn’t reached by then. MPs are sworn in and assume their seats (in alphabetical order, I understand), a Speaker is elected, truncated formalities undertaken, and then the House would most likely adjourn for the government negotiations to be completed.

As an aside, Belgium still does not have a government after its election in June 2010 – a world record!

What happens if a government can't be formed?

As mentioned above, there is no prescribed time-limit and the caretaker convention will ensure that a government operates in the meantime, albeit on a constrained basis.

If the position is intractable, the ultimate recourse is the dissolution of Parliament for fresh elections. The re-dealing of the cards would hopefully ensure a new political settlement and a government able to command the confidence of the House.

However, an important caveat. The incumbent Prime Minister's ability to request a new election is significantly constrained because they, by definition, will not command the confidence of the House. Any decision to advise the Governor-General to dissolve Parliament for a new election, in these circumstances is subject to the caretaker convention - therefore needing majority support of MPs in the House.


Which party gets first go at forming a government?
No party gets first shot at forming the government. With multi-party government, the ultimate goal is garnering enough parliamentary votes to be able to command the confidence of the House.

Importantly, the highest polling party does not have any special constitutional position (unless they secure an absolute majority). As Sir Michael Hardie-Boys explained:
"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. … 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."
So, there is no constitutional impediment to a Prime Minister being drawn from the second highest polling party, if that party is better about to secure agreements on confidence and supply from other parties.

I know this raises some eyebrows. But I think of it like a game of rugby.

In any game, the ultimate goal is to score more points than the other team. If you do, you win. If you don't, you lose.

You might have a team scoring several tries being beaten by a team which scores none but gets more points through penalties and drop goals. But the way the points are scored, doesn't matter.

The team scoring the tries might say they're a better team and claim a moral victory. But they don't get to raise the trophy at the end of the match.    

How soon can a new Prime Minister be appointed?
It depends. It depends on how confident the Governor-General can be that a party or a group political parties can command the confidence of the House.

Government formation negotiations have usually taken a little bit of time. Sometimes special votes might influence those negotiations and the agreements have often not been signed and confirmed under after the formal declaration of the election result.

However, there's no reason to wait for the formal declaration of election results (as was the case in 2008). For example, if it's clear that a single party has more than 50% of the seats, regardless of specials, or an coalition deal means that the outcome of specials are immaterial, then a new Prime Minister can be sworn in forthwith.

What's the significance of the swearing in of the Prime Minister?
The ceremonial marks the constitutional.

The act of swearing in a new Prime Minister signals the commencement of the new government. Once the Prime Minister is sworn in, the cardinal constitutional convention that the Governor-General acts on the advice of his or her responsible advisors (ie Ministers of the Crown) re-commences.

The Prime Minister is then able to advise the Governor-General who should be sworn in as Ministers and the Governor-General duly obliges. The caretaker convention lapses at this point as well, as the warranted Ministers then have the democratic foundation to act because they, as a government, are able to command the confidence of the House.

Strictly speaking, if the incumbent Prime Minister is able to form another government that is able to command the confidence of the House, then no ceremony is needed because they are already warranted as Prime Minister. Instead, the caretaker convention would magically lift when the Governor-General is satisfied that the Prime Minister has the continuing right to govern. However, previous governments have – properly, in my view – taken the view that the ceremonial marker is important and a returning Prime Minister has been re-sworn into office, even though it's not legally necessary.

One last thought. The last government was sworn in at Parliament, due to renovations taking place at Government House. I hope this tradition continues. The ceremony where the new government is installed seems more appropriate in the setting of the place of people. (At least, thank goodness, we don't engage in the ridiculous "Kissing Hands" ceremony that takes place in the UK.)

What happens to MPs after polling day?
A little quirk of our system is that, for a number of days after the election, we have no MPs!

Under s 54 of the Electoral Act, MPs reign until the "close of polling day". However, new MPs don't come into office until the day after the return of the writ (the formal advice to Parliament of the outcome of the election by the Electoral Commission). That's not scheduled to take place until 15 December.

In between those dates, we don't have any MPs (although Ministers still retain their ministerial warrants (see below).


What's this caretaker convention?
After an election, an incumbent government loses the democratic mandate to govern, unless and until they can satisfy the Governor-General that they can command the confidence of the House.

However, they can't just vacate the Beehive while a new government is formed.* The figure-head Governor-General can't be left without responsible advisors – Ministers are still required to ensure the business of government keeps ticking over.

The constitutional compromise is the caretaker convention.

The incumbent government remains in power with lawful executive authority to act. However, under the caretaker convention, their ability to act constrained:
- if we know who will take over as next government, the government will only act on advice of the incoming government even though that incoming government has not been formally sworn into office;
- if we don't know who will take over, the government will avoid making significant decisions – and, if one must be taken, they will only act after consultation with other political parties to ensure that the course of action has majority support.

The caretaker convention therefore ensures that any decision made during the transition period has a democratic mandate.

* Section 6 of the Constitution Act deals with the situation where an existing minister does not stand or is not re-elected (and the appointment of successful candidates as ministers before they are formally declared elected). Again, a point of detail for the geeks and public law students.


Where do we find these conventions?
These conventions have evolved and been amplified over time. The arise from existing practice and the belief that they're important to continue to follow.

There was a big stock-take about the protocols for the formation of government in anticipation of MMP coming into force and the expectation of minority and coalition governments.

The conventions or protocols about government formation and transition are recorded in important constitutional speeches of the Governor-General (there are now a number of them) and also in the provisions of Cabinet Manual.



Anonymous said...

Very interesting post, I especially liked the rugby analogy (Roosters for life).

Out of interest, do the minor parties give confidence to the Prime Minister, or their party? For instance, if National couldn't form a government and the only way Labour could would be to involve either NZ First or Mana, but neither of them would give confidence to Phil Goff, could Labour be forced to change their leader to form a government? (Sorry that's incredibly poorly worded but I think you get the picture) Or am I just nit picking?


Steve F said...

Here's a scenario, I'm not sure if it's fanciful or not but it popped up over at Pundit

The specials are counted. national looses a seat. The Greens gain a seat.
The speaker is a national member. After many huis and much hoo ha the Maoris decide not to go with National. The speaker, at least at the last time I looked , votes as an ordinary member. So that leaves us with a 60 to 60 split......


Do we take lessons from across the ditch on a hung Parliament or look forward to the most entertaining TV in the past three years with Winston in the lead role !!!

Dean Knight said...


Overhang (thankfully) means it won't arise. With 121 seats in the House, there cannot be a tie (as you say, the Speaker's vote goes with his or her party).

Anonymous said...

yes but ...
what if National selects a speaker from 'the other side' viz Winston Peters?

... what if Maori Party do not enter the coalition and Key asks either Tariana or Pita to be Speaker?

There is a precedent to this when Labour selected National's Dr Bruce Tapsell as 24th Speaker from 1993-1996.

but .. the previous MOU is bilingual .. and why would they co-leaders want to adopt or to be seen as being different from other MPs with the title you suggested?

They would suffer enormous and unnecessary criticism from everybody and their desire to achieve their objectives would be reminiscent of Babel.

Interesting post though.

Dean Knight said...


Just to be clear. Appointment as Speaker does not affect the numbers. The Speaker's vote continues to be cast with the party.

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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