Wednesday, May 10, 2006

A quiet revolution

The Governor-General gave an interesting speech last night on "Our Constitutional Journey". Somewhat predictably, the Herald has focussed on a tiny bit near the end, where she talks about the need for New Zealanders to "walk together at more or less the same pace" on the Treaty - but the really interesting bit is a bit further up, where she talks about the caretaker convention and the possibility of a government losing the confidence of the House mid-term. while the exact rules differ depending on whether the caretaker administration has a clear successor, the underlying idea is that such administrations should avoid making major decisions unless they have the support of the House. What the Governor-General is saying is that that principle extends a little further than most governments would like to think:

It is well established that if the government loses the confidence of the House mid-term, the Prime Minister should state that the government will operate as a caretaker government until the political situation is resolved. The caretaker government would continue to advise the Governor-General on the normal business of government, while observing the caretaker convention.

Just as in the post-election situation, the Governor-General’s role in this kind of situation is to ensure that a government of Ministers with a clear democratic mandate is established or re-established. In doing so, the Governor-General depends on the political parties represented in the House to clarify, within a reasonably short timeframe, whether the caretaker Prime Minister can re-establish his or her support, or whether an alternative administration can be identified from the existing Parliament. During this period, the caretaker Prime Minister’s power to advise the Governor-General to dissolve Parliament and call an early election is subject to the caretaker convention – that is, it requires the support of a majority of the House.

(Emphasis added)

While seemingly obvious in an MMP environment, this is something of a quiet revolution. The Cabinet Manual states that, by convention, the Prime Minister alone has the power to advise the Governor-General to dissolve Parliament and call an election. The Governor-General has now signalled that that power is not as absolute as we might have thought. Prime Ministers will not be able to respond to a mid-term coalition collapse by rolling the electoral dice and hoping for a new mandate (or at least the elimination of troublesome former coalition partners). Instead, the will of the people in choosing their representatives will be respected, and those representatives given a chance to form a new administration. Only in the event of an impasse or a mutual desire for elections will a dissolution be granted - and even then politicians are expected to take into account the stage of the electoral cycle in judging whether elections are really necessary.

The Governor-General is sending a clear mesage that, under MMP, it is Parliament (rather the the Prime Minister) which is supreme. It will be interesting to see exactly what the Prime Minister makes of it...


I thought as much - I've emailed some others.

What it does show, I think, is that where we have undefined 'constitutional conventions', the protagonists can easily change the boundaries.

I'm sure there are many who think this is great - no doubt they'll yse the whole 'flexibility' nonsense - but IMHO this shouldn't be the case. Important issues such as who has the power to dissolve Parliament, and when, shouldn't be decided by speeches to Law societies.

Posted by Lewis Holden : 5/10/2006 11:37:00 AM

No, they shouldn't - the problem is convincing the MPs to enshrine the conventions in law...

Posted by Idiot/Savant : 5/10/2006 11:43:00 AM

Indeed. Didn't the late Rod Donald have such a Bill? I think that related to government formation, not the dissolution of Parliament... it might have been relevant.

Posted by Lewis Holden : 5/10/2006 12:11:00 PM


I went looking for a prededent where a "Westminster model" state changed governments without an election and couldn't find one (though I didn't research Canada). The nearest would probably be Churchill (1940) - with MacDonald (1931) and Whitlam (1975) there was an election within months.

For such a changeover to happen there would need to be a substantial bloc of members making a clean switch from one coalition partner to another (in the present parliament, UF and NZF would need to switch and MP would need to support the Nats on confidence). One could imagine an unstable situation where parliament could not pass either a confidence motion *or* a dissolution motion.

This of course puts the G-G in the position of having to make a decision, which is likely to be seen by one side (possibly with justification) as partisan.

I agree with Lewis & NRT - the answer is codification. One option would be to require parliament to pass either a "constructive motion of confidence" designating a successor PM or a motion of dissolution.

The trouble with codification comes in the first part of the G-G's speech. To codify without the Treaty would be rightly seen by Maori as an act of dispossession, whilst codification with the Treaty risks "running ahead" of national consensus.

Of course another option would be a piecemeal "Formation of Governments Act".

Posted by Rich : 5/10/2006 01:41:00 PM

Rich: The closest we've come in New Zealand is the short-lived administration of Thomas Mackenzie in 1912. The Liberals effectively lost the 1911 election, gaining only 33 seats to Reform's 37. Ward offered to resign, and this offer persuaded enough labour and independent MPs to back the Liberals to scrape up a tie - which they then won on the Speaker's casting vote. The government then fell apart over the leadership and Cabinet posts, a group of MPs defected to Reform, and when Parliament met again in July, it lost the inevitable confidence motion. Rather than calling new elections, Bill Massey was appointed Prime Minister, as he clearly had the confidence of the House.

And I don't see any problem with piecemeal codification; it's certainly likely to be easier than tryign to solve everything at once.

Posted by Idiot/Savant : 5/10/2006 02:25:00 PM

My problem with piecemeal codification is illustrated by the 100MP / MMP controversy. We have a situation where some parts of electoral law (including relative trivia like the design of the ballot paper) are entrenched, whilst important matters (like the actual electoral system) are not.

And I would assert that for entrenchment to be real, then it needs to be done by referendum (otherwise it's just one parliament trying to bind its successors) - and a referendum on a "technical" measure like a Government Formation Act is unliklely to attract a high voter turnout.

Posted by Rich : 5/10/2006 02:58:00 PM

Icehawk - but our situation is up in the air until a Judge decided. Indeed, most of the 'clarifications' were actually made by judges (except the caretaker principle, which was invented by Jim McLay).

At least the United States constitution is clear just who is to determine constitutional issues. IMHO it is better to have a court - the Supreme Court - making considered decisions rather than a GG, appointed by the PM of the day and able to be fired at their behest.

Posted by Lewis Holden : 5/10/2006 08:44:00 PM

I've tracked down the 1998 speech by Michael Hardie-Boys, Governing under MMP: the Constitutional and Policy Challenges, which the current G-G refers to - and there has been a fairly significant change. Here's the appropriate bit:

If the Government loses the support of the House, the Prime Minister will either indicate a readiness to resign (which means the resignation of all Ministers) or seek a dissolution. In the interim, before an alternative administration is appointed or an election held, I expect that the incumbent Government would operate in accordance with the caretaker convention.

So, he thought it really was all up to the PM. But looking at it, the change seems to be that the caretaker convention is now considered to operate from the moment the government loses the confidence of the House, rather than the moment the Prime Minister admits it.

As for convention versus codification, every constitution needs both in order to operate. What's peculiar about America is that they seem to utterly lack convention - they've turned their constitution into a giant legal game, while ignoring its purpose and spirit. We don't necessarily need to do that, and i think we can clarify a bit more without necessarily going down that path.

Posted by Idiot/Savant : 5/12/2006 09:57:00 AM