Scenarios for a Hung Parliament in October

The Globe and Mail has published a piece by John Ibbitson on what a hung parliament in Canada might look like given the recent polls showing a three-way race in the federal election this fall. Mr. Ibbitson presented a group of academics with five scenarios to discuss.  My own responses are presented at length at the end.

John Ibbitson

Five ways a hung Parliament could swing in October

Imagine this: A cold grey dawn greets the country on the morning of Oct. 20. After counts that go late into the night, it is clear that the general election of the day before has produced a hung Parliament, with no party able to command a majority of seats in the House of Commons. It turns out that the three-way race among the Conservatives, New Democrats and Liberals that emerged in late May, five months before the election, continued right up to voting day.

So what happens next?

Canadians have plenty of experience with minority governments, including two led by Stephen Harper and one by his predecessor, Paul Martin. But in 2008, the opposition parties tried unsuccessfully to create a coalition in order to unseat the Conservatives. After 10 years of Conservative government, voters opposed to Stephen Harper will be pushing the other parties to do whatever it takes to ensure he is no longer prime minister. And a genuine three-way race? We’ve never had anything like that before.

But who would replace Mr. Harper: Justin Trudeau or Thomas Mulcair? Would there be a conventional minority, or a coalition in which both parties are represented in cabinet? And would the two leaders agree to co-operate, even if the Conservatives win the most seats? The possibilities are endless.

We crafted five election-day scenarios, and consulted political scientists from across Canada on what they felt would be the most likely outcome.


Seats in House of Commons: 338

Number needed for majority: 170


What if the Conservatives have the most seats?

(Andrew Vaughan/The Canadian Press)

1. STRONG TORY PLURALITY, LIBERALS IN SECOND

In the past, such an outcome would produce a Conservative minority government, which would govern on a bill-by-bill basis with the support of at least one other major party. Since the Second World War, John Diefenbaker, Lester Pearson, Pierre Trudeau, Joe Clark, Paul Martin and Mr. Harper have all led minority governments.

But as Cristine de Clercy of Western University points out, “the government of the day forms on the floor of the Commons, rather than being ‘selected’ by voters.” Given the deep animosity that many non-Conservative voters feel toward Mr. Harper, Associate Professor de Clercy predicts, “absolutely the Liberals would try to govern with the minority support of the NDP.”

She does not believe the two parties would unite in a coalition government as the U.K.’s Conservatives and Liberals Democrats did in 2010. (The result was a majority Conservative government in the May election, with the Lib Dems virtually eliminated from the House.)

Richard Johnston, of the University of British Columbia, believes that to make a Liberal minority government “look like anything other than a naked power grab they would have to have an agreement” with the NDP on a set of policies and priorities. Bob Rae, then leader of the Ontario NDP, reached such an accord with David Peterson’s second-place Liberals in 1985. The accord provided two years of stable Liberal minority government.

While there might be no formal coalition, Prof. Johnston believes Mr. Mulcair would only grant confidence to a Liberal government led by Mr. Trudeau in exchange for a series of commitments, such as enacting the NDP’s proposed national $15-a-day daycare plan.

Allen Mills of the University of Winnipeg says that, if the Conservatives won the most seats, Mr. Harper would tell Governor-General David Johnston that he intended to form a government and that he would meet the House. If the Liberals and NDP combined to defeat the government on its Speech from the Throne, then “the Governor-General would have an obligation to see if the Liberals and NDP would form a formal or informal coalition,” he says.

The University of Alberta’s Julián Castro-Rea, however, observes that Mr. Harper has a proven record of asserting iron control over his caucus, and of co-opting opposition parties on a vote-by-vote basis. “The Conservatives will never let the Liberals or the NDP form an alternative government, and for that matter these parties would not even try,” Associate Professor Castro-Rea says. Both opposition parties would instead conclude that bringing down a Conservative minority government before it has chance to govern would render them deeply unpopular.

2. STRONG TORY PLURALITY, NDP IN SECOND

Maxwell Cameron at UBC believes that a second-place finish for the NDP could be good news for the Conservatives. “The Liberals would face a dilemma,” he says. “It would be one thing to bring down the government in a motion of non-confidence in order to form a minority government, and another to do it so the NDP could form government or to govern in coalition with the Liberals.”

The words “Prime Minister Thomas Mulcair” could be fatal to Mr. Trudeau’s leadership of the Liberals, and to the party itself. Under the circumstances, Prof. Cameron believes that the Liberals might prefer to prop up the Conservatives for 18 to 24 months, before bringing down the government and forcing an election at a time of the Liberals’ choosing.

For Associate Professor DeClercy, however, “I fully expect the NDP would aim to govern with minority Liberal support.” The imperative among progressives to end Mr. Harper’s reign as prime minister would, she believes, trump all other considerations.

3. WEAK TORY PLURALITY

For Daniel Weinstock of McGill University, three variables determine the outcome of a hung Parliament: How far ahead the leading party is; how close the second and third parties are to each other in terms of seats; and how close the second and third parties are to each other ideologically.

Prof. Weinstock believes that constitutional convention requires the Governor-General to ask any party with a large plurality of seats to form a government. However, “I don’t think that the G-G would be bound in the same way if the three parties are very close to one another, both in numbers of seats and in share of the popular vote,” he maintains.

This is crucial. When Stéphane Dion and Jack Layton tried to oust the Conservatives with the support of the Bloc Québécois in 2008, the proposed coalition was deeply unpopular with voters, who couldn’t believe that Mr. Dion was about to become prime minister even though he’d been thumped in the election. The 1985 Liberal/NDP accord in Ontario, by contrast, was popular in part because the Liberals had come very close to winning more seats than the Conservatives. It appears that, in the minds of voters at least, the closer the second-place party is to the first-place party, the more legitimate it becomes as an alternative government.

If the result is close on Oct. 19, and the opposition parties combined to defeat the Conservative government on its Throne Speech, then “there would be even more of an obligation on the Governor-General to entertain a coalition government” under the leadership of whichever party had the second-highest number of seats, Prof. Mills believes.

Not everyone agrees. “Stephen Harper’s vicious attacks in the fall of 2008 targeting the proposed Liberal-NDP coalition, supported by the Bloc Québécois, gave coalitions a bad press, and a whiff of illegitimacy and violation of democratic standards,” maintains Associate Professor Castro-Rea. “The parties, and arguably the public, are not used to shared governments; they prefer the winner-takes-all approach. So whatever the results of the next federal election are, I would exclude the possibility of a formal coalition of any kind.”

In any case, he believes that the Conservatives would form a government no matter how narrow their plurality, by dividing and conquering the opposition.


What if the Liberals have the most seats?

(Geoff Robins for The Globe and Mail)

4. WEAK LIBERAL PLURALITY

“Liberal minority government,” predicts Jennifer Smith, professor emeritus at Dalhousie University in Halifax. If the Liberals win more seats than the Conservatives, they are certain to form a government, if only because, as Prof. Weinstock puts it, “it seems unlikely that the Conservatives and the NDP would be able to collaborate to either unseat the government or to participate in a coalition.”

This is why, for Prof. Weinstock, the ideologically compatability of the opposition parties, or the lack of it, is so important.

Would the Liberals seek to form a coalition with the NDP, in order to ensure four years of stable government? Mr. Trudeau has ruled that out, and in any case, most of those polled agreed that the NDP would be reluctant to enter such a coalition. “Coalitions are stinko in Canada,” says Prof. Smith. There hasn’t been one since the Unionist government of Conservatives and breakaway Liberals under Robert Borden in 1917, she points out, and “the recent coalition attempt in 2008 wound up being subject to ridicule.” Not only did the British Liberal Democrats suffer badly after their coalition with the Conservatives, but Bob Rae’s NDP suffered after its two-year accord with the Liberals, returning as a weakened opposition facing Mr. Peterson’s majority Liberal government.

But, as mentioned in the first scenario, the NDP might require a Liberal government to enact certain NDP priorities in exchange for any vote of confidence.


What if the NDP have the most seats?

(Chris Wattie/Reuters)

5. WEAK NDP PLURALITY

This is a scenario few had considered until very recently. But with Rachel Notley’s win in Alberta, with the NDP trending upward in the polls, and with voters in those polls identifying Mr. Mulcair as a leader they like and trust, an NDP plurality is now increasingly possible.

In which case, what would Justin Trudeau do? He would be under great pressure to support an NDP minority government, or perhaps even to discuss the possibility of coalition, in order to keep the Conservatives from power. But as we have previously observed, if the federal NDP forms a government, the Liberals’ very existence could be at stake.

Prof. Cameron believes that “the most natural outcome would be an NDP minority government. The Liberals would avoid entering into a coalition because minor coalition partners tend not to fare well in subsequent elections. They can position themselves to ensure the NDP governs ‘responsibly’ and wait for the right moment to go back to the voters.”

Prof. Smith agrees. “The Liberal versus NDP rivalry is too intense at this point to make for promising coalition talks. Plus, the NDP would have the wind at its back. Why squander momentum to form a coalition government, itself not a Canadian tradition?

Associate Professor Castro-Rea speculates that “perhaps the NDP leader would be forced to include one or two Liberals in the Cabinet. If the deal fails, the NDP will try to govern as a minority, but the experiment will not last long.” Voters could be back at the polls within a year.

Prof. Weinstock believes that in such a situation Mr. Harper would certainly step down, and then “the joker is whether he is replaced by a leader more – rather than less – ideologically attuned to the Liberals.” A moderate Conservative leader could co-operate with the Liberals in bringing down an NDP government. But facing a Stephen Harper 2.0, the Liberals would have little choice but to prop up the NDP.

Prof. Mills wonders whether the Liberals might back the Conservatives in any case, rather than see the NDP take power. “Justin might be so pissed off with Tom that he will support Steve!”

As we said, the possibilities are endless.

Graphics by Trish McAlaster/The Globe and Mail

 

See my complete response to Mr. Ibbitson:

SCENARIO ONE.

The first point to make about the legitimacy of a Liberal government is an obvious one, but not well understood by many voters.  In a parliamentary system, governments are formed by the party that commands the confidence of the House; elections are not necessarily won by the party with the most votes. The Conservatives would be likely to insist that the Liberals and the NDP are stealing the election and it is undemocratic to form a government without the largest party. Such claims are specious, but likely to prove persuasive to some voters. If the Liberals decide to form a minority government, it will be critical to avoid the mistakes that led to prorogation in 2009: they must call a vote of non-confidence at the first opportunity.

Trudeau has indicated that he will not enter a coalition with the NDP (“I’m unequivocally opposed to any sort of coalition”), so the likely outcome would be a minority government. The Liberals with NDP support would have to persuade voters that they are capable of representing a broader and more stable majority in government than the Conservatives could offer. The NDP would certainly prefer a Liberal minority over a Conservative one, and so would likely play along.

The difference between SCENARIO ONE and TWO is that there is especially strong “anyone but Harper” sentiment within the NDP, so there is little doubt that the NDP would seek Liberal support (either supply and confidence or a coalition) to bring down the Conservatives.  Mulcair has expressed willingness to entertain a coalition. The Liberals, however, face a dilemma. It would be one thing to bring down the government in a motion of non-confidence in order to form a minority government, and another to do it so the NDP could form government or to govern in coalition with the NDP. The experience of the LibDems in the UK is a cautionary tale for minor coalition players. The advantage of coalition over minority is mainly sharing in the perks of power; the risk is sharing responsibility for political mistakes.

The Liberals could decide they are neither ready to form government under these circumstances nor prepared to accept the blame for creating the first NDP federal government. Suppose Harper steps down and a new interim leader is chosen. Under these circumstances, the Liberals might decide to give stability to a Conservative government for 12 to 18 months and then go back to the electorate at a time of their choosing.

Militating against Liberal support for a continuation of Conservative government, however, is both the unhappy experience of 2006-2011 that Richard Johnston mentions, and the fact that the Conservatives are unattractive dance partners.  To a degree unseen previously in Canada, the Conservatives have governed with an exclusive concern for their base. As a result, parliament has become an increasingly dysfunctional institution. Between omnibus bills, repeated use of closure, stifling of committees, the refusal to accept amendments to bills, and constant attacks on the other parties, the Conservatives have made themselves toxic beyond their base.

SCENARIO THREE. A narrower lead takes the sting out of the argument that it is undemocratic for the “losers” to bring down the “winner.” It also makes it more plausible that Harper would resign (though the experience of 2009 could persuade him to wait and see if a Liberal-NDP agreement sticks).

SCENARIO FOUR. There would be an expectation that the Liberals would be invited to form government, without the (specious) legitimacy issues arising in the above scenarios. Again, Trudeau has said he would not form a coalition and I think he would hold to that in this scenario. Ironically, the “anyone but Harper” sentiment in the NDP would make them likely to support the Liberals, which weakens their leverage in terms of demanding perks and policies in return for support. That said, they might seek agreement on some core policy issues (e.g. electoral reform).

SCENARIO FIVE.  Here, again, I think the most natural outcome would be an NDP minority government. The Liberals would avoid entering into a coalition because minor coalition partners tend not to fare well in subsequent elections. They can position themselves to ensure the NDP governs responsibly and wait for the right moment to go back to the voters.

— Max Cameron

Do we need a school for politicians?

If you want to be a doctor, lawyer, teacher, nurse, firefighter, entrepreneur, soldier, accountant, or engineer there are schools that provide the knowledge and skills necessary to serve in these professions. But if you want to go into politics, no practical training is necessary. None is available.

This is puzzling. Why do we turn over the management of the biggest and most complex enterprises in our society—municipal, provincial, and federal governments—to amateurs?

Candidates increasingly refer to elections as “job interviews.” But a study by Samara found that few politicians could offer a coherent description for the work they do.

We think it is time for politicians to raise their game. This year, UBC’s Centre for the Study of Democratic Institutions will run its third annual Summer Institute for Future Legislators. It is a program that draws on the expertise of wise former leaders to provide aspiring politicos with the knowledge and skills they need to be better practitioners. We call it “boot camp for politicians.”

Our political wannabes learn about parliamentary practices and procedures, lawmaking and representation, relationships and ethics. They have the chance to hone their skills through role playing and simulations. The highlight is a model parliament session conducted in the BC legislature. Having practiced the art of the legislator, they have personal knowledge of the job they seek.

Some past participants have decided that the political life is not for them. It is better to realize this before entering politics. Others have seen how hard politics is and have become even more enthusiastic about the challenge.

Is it elitist to train people for politics? On the contrary, our goal is to admit anyone who is interested, regardless of their background or qualifications. The only criteria for admission is that applicants must have a desire for public service in elective office.

Our main challenge is how to teach people to be good politicians. It is true that politics is learned on the job. As a practical skill, it requires trial and error. Since there are harsh penalties for making mistakes in public life—just ask Mike Duffy or Pamela Wallin—it may be wise to hone the practice of politics in an environment in which experimentation is possible.

When aspiring politicians are given a context for learning experientially, among peers, and with inspiring mentors drawn from across the partisan spectrum, they can explore different styles and approaches.

They can replicate existing practices—falling back on party discipline, reading from talking points, and refusing to answer questions—or they can explore ways of working across partisan lines, building coalitions, and fostering meaningful dialogue.

They can change the rules to enable more free votes. They can run question period differently. They can experiment with the confidence convention. In short, they have a chance to think about what parliament was designed to do, and to imagine how it might work in the future.

We want our practitioners to imagine models of what democracy could be, not copy what it is. Better politicians means a better democracy. If we want to change politics, we have to change the practice. And to change the practice, we have to improve the practitioners.

Bill C-51 Weakens the Rule of Law

The following remarks were delivered in a panel discussion on Anti-Terror Bill,  C-51, organized by the Institute for the Humanities, Simon Fraser University on 3/24/2015.

Video of the entire event is available here.

Bill C-51 threatens the foundation of our legal system. It weakens the rule of law and the separation of powers which underpins our democracy. It will make our political institutions not only less democratic, and less robust as guarantors of our rights and freedoms, but also weaker—less capable of responding the threats we face and less capable of mobilizing collective action toward desired ends.

Our political system is based on the rule of law. That means nobody is above the law, the actions of all must comply with the law, and no person should be the judge of his or her own cause. Whenever the rules are made, implemented, and enforced by the same person or group of people, we find ourselves in a situation that is the very definition of tyranny.

800 years ago the tyrant King John was forced to sign the Magna Carta, which affirmed “No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, expect by the lawful judgment of his equals or by the law of the land.”

Bill C-51 amends the Canadian Security Intelligence Act to allow CSIS to respond to threats to “the security of Canada” by means of measures that contravene rights and freedoms guaranteed in the Canadian Charter of Rights and Freedoms. It also allows them to break Canadian law. That is, this is a law that explicitly authorizes law-breaking and violations of the Charter by our intelligence service.

What would the barons at Runnymede have thought of the idea of a judge-issued warrant to “enter any place or open or obtain access to any thing,” “remove or make copies or record any information, record or document,” or “install, maintain or remove any thing”? Such sweeping powers were precisely their target.

Such abrogation of the law or the constitution are to be given a fig leaf of legality, which only makes matters more obnoxious. Law-breaking is to be authorized by a warrant from a judge. Except that a judge may not authorize specific illegal activities that are explicitly exempted: CSIS shall not cause death or bodily harm, obstruct or pervert the course of justice, or “violate the sexual integrity of an individual.” What is wrong with this?

We cannot put a judge in a position of saying “the law says you must do X, but notwithstanding that you have my permission to do Y.” Permission on what basis? When a judge issues a warrant it is to guarantee—that is the origin of the word warrant—guarantee the legality of the actions of the police. It is not to find exceptions. It is not to exercise discretion with respect to what is the law. As Paul Ricoeur puts is: “The most fundamental limitation juridical argumentation meets has to do with the fact that the judge is not a legislator, that he applies the law, that is, that he incorporates into his arguments the law in effect.” It is the job of the judge, strictly, to say what is the law—neither more nor less. The very idea that a judge might counsel an illegal act is inimical to our rule of law tradition. It strikes at the very heart of our system of justice.

These provisions undermine the principle of the hierarchy of laws. This principle requires that when a higher law conflicts with a lower law, the higher law shall prevail. Constitutional guarantees cannot be trumped by statutory law; statutory laws cannot be abrogated by municipal ordinances; municipal ordinances cannot be negated by contracts between individuals.

Bill C-51 uses statutory law to interpret which guarantees contained in the Charter of Rights and Freedoms can or cannot be abrogated by a judge. It essentially creates two classes of constitutional guarantees—those which can be abrogated by a judge and those which cannot, and it does so in legislation that ranks below the constitution. Who gave the parliament of Canada the right to reinterpret our constitution and to decide that there are two tiers of guarantees?

To reinterpret the Charter through ordinary legislation makes nonsense of our entire legal system and our constitution. It makes nonsense of the separation of powers.

As Roach & Forcese have said: “For the first time, judges are being asked to bless in advance a violation of our Charter rights, in a secret hearing, not subject to appeal, and with only the government side represented.” The Canadian Bar Association says C-51 “brings the entire Charter into risk, and is unprecedented.” The BC Civil Liberties Association claims: “The role of the court in our constitutional system is to ensure that both the executive and the legislature act in accordance with the law. To ask the court to authorize constitutional violations is simply offensive to the rule of law…”

The separation of powers requires that legislatures legislate, judges judge, and executives execute policy. There is a purpose to organizing the powers of the state in this manner. It is because no law, no matter how carefully written, is unambiguous or free from multiple interpretations.

Take a term like “terrorism.” What does it mean? We could argue all night about the intrinsic meaning of the word, but the reality is that law demands that we take general rules and apply them to particular cases.

To get the best results, you don’t write sweeping legislation and then leave it up to administrative agencies to decide how to best implement the law. You need to build in checks and balances, not to hinder the functioning of government as a whole, but to guarantee its consistency by ensuring that actions by government officials are deliberate, implemented effectively, and enforced impartially.

And the best way to accomplish this is by creating branches of government that are specialized in distinctive activities and that work together to generate authoritative interpretations that guide collective action in accordance with the public interest.

The sad truth is that our parliament has been emasculated to such a degree that it is no longer a meaningful deliberative body. We have omnibus bills that are so complex and comprehensive that their effects can hardly be understood by the MPs who pass them. These bills are rushed through committees that no longer do meaningful work, passed without amendments, following closure to cut off debate.

Among the weaknesses of our parliamentary system is the lack of parliamentary oversight of the intelligence service. Such oversight is absolutely necessary to ensure that the implementation and enforcement of the law is compatible with the rule of law and the public interest.

Many people will object to Bill C-51 because they fear it will excessively enhance state power at the expense of the citizen. That is a real danger. My objection, however, is to the way that this Bill weakens our political institutions.

It will do this not only by making them vulnerable to the abuse of power and to the loss of legitimacy that this will entail.

It will also do so by making it harder to mobilize the resources in our society that enable effective collective action in response to threats. It will create confusion over what intelligence agencies can and cannot do, what constitutes legitimate dissent, the role of the courts, and deliberative quality of our legislative institutions.

Elements of Bill C-51, if passed, must be disobeyed. By whom? By our courts. I expect that this legislation will set up a major conflict between the executive and judicial branches of government. The courts must strike down this legislation as inimical to the Charter.

Canada cannot and should not mark the 800th anniversary of the Magna Carta by tossing key principles from it in the dust bin.