Lieutenant-Governor takes centre stage in B.C.

The most inconclusive British Columbian election in years looks like it is moving closer to resolution with Monday’s announcement of a deal between the New Democratic Party and the Green party. But some uncertainties persist. The Christy Clark government remains in office, but without a mandate from the people. And she now faces the likelihood that the NDP is in a position to form a viable government, with the support of the Greens, for some period of time.

There has been loose talk that the Clark government might try to sustain itself long into the fall, without a sitting of the legislature, governing through use of Lieutenant-Governor’s warrants; or that Premier Clark might refuse to hand over power to the other parties and, instead, now or in the fall, ask the Lieutenant-Governor to call another election

These possibilities are unlikely. But, if attempted, the Lieutenant-Governor should refuse them. Either manoeuvre would be a serious breach of both democratic norms and constitutional laws and principles.

The B.C. Liberals have the most seats in the Legislative Assembly — albeit one seat short of a majority — and the Clark government remains in office as a caretaker government. But it does not have a renewed democratic mandate to govern.

To gain that mandate, it has to win a “vote of confidence” in the legislature. The first opportunity for a confidence vote will likely be the speech from the throne. But for that vote to happen, the legislature has to be convened.

At this point, the role of the Lieutenant-Governor is crucial for ensuring everything goes as it should. It is her constitutional responsibility to ensure we get a government elected by the people, one that governs with the consent of a majority of our elected representatives.

If it is unclear who has support of that majority, the Lieutenant-Governor must manage the process to ensure the support of any potential government is tested in the legislature, and that a successful government (if any) is determined. If necessary, she must dismiss a government that fails to get majority support in a confidence vote.

What if the Clark government stays on as caretaker government, avoiding testing its claim to legitimacy by failing to convene the legislature in a timely manner?

In that event, the Lieutenant-Governor would be required to intervene. It is her constitutional responsibility to prevent a government from exercising the prerogatives of government without having established its mandate. She therefore must ask the government to test its support in the legislature and, if it refuses, tell the premier to step down.

There’s a precedent at the federal level. After being defeated in the 1896 federal election, Sir Charles Tupper, with no prospect of majority support in the House of Commons, tried to make a number of appointments. The Governor-General refused to accede to the appointments, stating that Tupper no longer had a mandate to make them, even though he was still prime minister of the caretaker government.

Second, what if, to avoid an alternative government establishing majority support in the legislature, Clark requests the Lieutenant-Governor to call another election?

The Lieutenant-Governor should refuse that request. She should not agree to call an election until such time as an alternative potential government has had an opportunity to gain the confidence of the legislature. Otherwise, governments that lose elections would be able to do end runs around the electorate by calling election after election. Electoral results matter.

It is clear that the options for who governs B.C. are constrained by important constitutional principles. Vibrant democracies depend upon those principles being observed. Securing their observance is the responsibility of the Lieutenant-Governor.

In our current system, provincial governments obtain a democratic mandate through two steps. British Columbians do not elect a premier directly. First, citizens vote for individual MLAs in each riding. That step has now been completed. This is the second step: A government must secure the support of a majority of votes in the legislature. This is gauged through “votes of confidence” — votes on matters that are deemed sufficiently important that they should determine whether a government commands the support of the assembly.

Joel Bakan and Margot Young are professors at the Peter A. Allard School of Law at the University of B.C.; Jeremy Webber is professor at the Faculty of Law at the University of Victoria.