Thursday, 15 June 2017

TIME TO CHANGE UNNECESSARY ELECTION LAW

Guest Post by Kelly Populous

Imagine a law so badly misunderstood that politicians and parties tolerate an unwanted, unpopular premier in order to avoid an election. A government without the political capital to change important public policy becomes trapped with unwanted leadership and winds up paralyzed. The public grows more apathetic or, worse, angry... and the whole province suffers as a result.

The scenario would seem crazy if Newfoundland and Labrador hadn't already suffered through it under Kathy Dunderdale. Now, with Dwight Ball flailing badly as the province’s First Minister, it seems that we have lost the ability to determine a course to provide renewal of the province's political leadership. 

It does not have to be that way.

The law everyone doesn’t understand is the one that requires an election within a year of changing Premiers, unless the timing of a general election makes the requirement irrelevant.  


Danny Williams

The current law has its roots in events starting in February 2001 when Roger Grimes won the leadership of the Liberal party and became premier of the province. In April 2001, Danny Williams won the leadership of the PC party and, two months later, took a seat in the House of Assembly becoming Leader of the Opposition. 

For the next two years, Williams taunted Roger Grimes and raged that he was an illegitimate premier. Williams justified his attack on Grimes because he had not won a mandate in a general election. In the ensuing 2003 campaign, Williams defeated Grimes and became Premier.

No precedent of any kind existed for William’s proposition that Premier Roger Grimes was an illegitimate leader, or to suggest he was not the lawful premier of the province. In fact, the Canadian Constitution and historical precedent, if any were needed, confirmed that Roger Grimes had every right to govern as Premier until the Legislature was dissolved by His Honour, the Lieutenant- Governor, who alone signs the writ of election.

That fact wasn’t good enough for Danny Williams and, as Premier, he sought to create new rules by legislative means. On November 29, 2004, the Williams government tabled an amendment in the Legislature to the Elections Act, 1991. 

The new legislation essentially made three changes: first, it set the date for the provincial general election to the second Tuesday in October every four years; second, it required an election if the sitting Premier resigned more than a year from the fixed date; and, third, it required that a by-election be called within 60 days of a member having resigned, replacing the previous 90 day limit.

The new rules have served to create several misconceptions about the permanence of fixed date elections in this province. The easiest short-cut through them is to understand that there is no way to permanently “fix” an election date, short of an amendment to the Canadian Constitution.

A provincial Statute by itself cannot immutably restrict the actions of a future government. Indeed, this very fact is acknowledged in the Act’s first clause which states that the Lieutenant-Governor may, by proclamation in Her Majesty’s name, prorogue or dissolve the House of Assembly when the Lieutenant-Governor sees fit.”

This is not a theoretical point; indeed, there is nothing theoretical in our Constitution about the role of Her Majesty, in whose name the Lieutenant-Government serves.

A similar Statute exists under federal legislation. Changes to the Federal Elections Act require that each general election takes place on the third Monday in October in the fourth calendar year after the previous poll, starting with October 19, 2009. Since November 6, 2006, there have been elections on October 15, 2008, May 2, 2011 and October 19, 2015 based on precisely the same provision invoked in the case of this province’s Elections Act.

Perhaps the point has already been made. The “fixed” election date is, in fact, not fixed at all. Governments have the ability to change any Statute. Any time a government prefers a different election date or some new rule, it can occur as long as the maximum constitutionally prescribed period between elections is honoured. The only other requirement is the approval of the House of Assembly.  

Public misconceptions about the election of a new premier also derive from the notion that the fixed election date is inviolate. In this case, too, the idea that an election must be called within a prescribed period after a new First Minster has been sworn-in has no constitutional underpinning. Such novelties can be altered or obliterated as long as the House of Assembly concurs. 

I would argue further that the election rules promulgated under the Williams Government have no value, and that they actually work against the best interests of the province.

In fact, a likely unintended consequence of the requirement for an election when a Premier has been replaced mid-term, is that it encourages unwanted or unpopular premiers to stay in Office longer than they should. In so doing, they prevent much needed Party (and possibly wider political) renewal.

Politicians are not optimists; they are opportunists. If a government caucus one having political difficulties thinks that replacing an unpopular Premier will trigger an election they may lose, they will have no incentive to hasten their own defeat. They will endure the unwanted leadership, and take no action to replace the failing incumbent. The Members will stay in office for as long as possible, rather than for just the one year period current legislation affords.

Roger Grimes
Many, possibly including Danny Williams, have forgotten that under the British parliamentary system premiers are not elected. The electorate votes for individual MHAs. The selection of a leader is the role of the political party. The party that has the confidence of the House of Assembly often but not always the one with the largest caucus becomes the government. Its leader, in turn, becomes the Premier. 

Since the public doesn’t directly elect premiers, the legislation promulgated in the Williams era is a peculiar solution to what is essentially a non-problem. 

The people, having voted in an election, select their party of choice. As long as that party retains the confidence of the Legislature, it ought to govern for the period to which it is constitutionally entitled. The idea that the departure of one MHA who happens to be the Premier should force an entirely new general election is presumptuous, unnecessary, and inconsistent with the processes of parliamentary government.

And the practice is not in the best interests of the province.  

22 comments:

  1. Gotta sit and wonder how this blog starts with the Crap from Dunderdale.... Dunderdale didn't Jockey and Manipulate the Cost Numbers for Muskrat Falls to make it look like it was Financially Viable for the province when it was already known prior that the cost would be upwards of 8.5 billion to possibly over 10 billion. How fast some of us want to forget... This was started before Dunderdale.. The failure of Holyrood through the neglecting maintenance on the facility (Maintenance that had been done in the past by Nalcor and only stopped during construction of Muskrat Falls) also started while King Danny was Premier.

    Time to change unnecessary election law? No... Time to uphold the law, charge and put in jail those who lie, manipulate, cause death through criminal negligence and let's not forget willfully stealing from the public.

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    1. Past and current Govs do not want to open Nalcor to the public in regards to MF because it will make the entire lot look as helpless fools that were either swindled by the falsified numbers or were outright part of its deception.
      NL needs new MHAs if we want to change how we are governed. If any of Ball, Gerry, Davis, Kent, LM or Earle are elected our next Premier in 2019 NL is up Churchill Falls without a paddle, WMA AND taking on water at the same time.

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  2. Ball would have no motivation to change this law as this is probably the only thing keeping him in the premiers chair. Last year this law protected Ball as he received 90% approval so as not to trigger a leadership convention followed by a election within a year of a new leader. Ball may not have this protection this year if they can stretch out the leadership contest plus the one year following for a new leader. This would give the Liberals a chance to put someone better in leadership and give some time to build up some credibility prior to the next election. We can only hope it occurs!!!

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  3. This is a good article. Thanks. Grimes was a legitimate premier and a good one. We have had at least one good Liberal premier and at least one good PC premier since 49. AC makes an excellent point - if any one of the current bunch becomes the next premier we are doomed - Ball, McCurdy, Kent, Davis, etc. And Ches Crosbie, God forbid that could happen! NL politics hasn't been pretty - ever! It's a dog's breakfast at the best of times. We need a new leader to lead a new approach to governing. But are we too broken to allow a new leader to govern in a different way? Or will the usual demands and strains of failing infrastructures, bankrupt government aid programs, unemployment schemes and expectations, and crippling geography prevent any future governments from doing it right? I am afraid our glass is always half empty!
    JDW

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    1. What about Frank Coleman, wouldn't he make a good leader?

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    2. The most bizarre political episode in recent times. And the PC party including Kent and Davis were supportive.

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  4. What was it that the "known critics" called it again? The Spiteful Act?

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    1. Muskrat Falls was a spiteful act, wasn't it?? and look at the deal it is for us all!!!???

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  6. While off topic some, the topic being election law, let me comment about another aspect of the law: policing.
    Justice Barry will soon hand down his report on the Dunphy killing by the RNC.
    This story raised eyebrows when Judge Reid stated that the officer acted like a cowboy, and that Dunphy was likely dead before the second or third or forth bullet was fired.
    Patty Daley on VOCM said recently that police should be required to wear body cameras. This seems logically, overdue and one of the most important recommendations that Barry could recommend.
    The RCMP last year decided against wearing body cameras.
    For sure, without cameras, inquiries such as this one is much difficult to obtain facts of what happened, and allows police to make fantastic assumptions and rationale to claim their actions were necessary, so no finding of fault.
    The RCMP here operates at the request of the provincial government. A recommendation that RNC wear body cameras should be mandatory for RCMP as well.
    How many readers of this blog are aware that the RNC officer used "mushroom bullets"? These are designed so that they do not make a small wound, but essentially explode inside the body to do maximum damage. This seem fine if you want to kill a moose, but to use this on a human seems inhumane.
    I had not read of this type of bullet being used in reports by the Telegram or CBC or NTV reports, but happened to attend the last sitting of the inquiry and heard , I believe, Capt Wilfred Bartlett, state it, and it was not contradicted. It seems that it is standard equipment for police officers. Imagine the damage of 4 mushroom bullets! If you use such deadly weapons, surely body cameras should be mandatory.
    Winston Adams

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    1. RCMP get to decide if they wear body cameras? no they are public employees not the judiciary or legislative branches of Gov. For an organization plagued with an bad image you would think they would want to clean up their act, not act like petulant children thumbing their noses at their employers.
      Refuse to wear body cams while on active duty to be held accountable, don't let the door hit your ass on the way out of the RCMP.
      Time for General Rick Hillier to be made the new RCMP Commissioner and to reform the organization into something respectable.
      Police wearing bands in support of an officer involved in an ongoing homicide case? And they wonder why there is such widespread mistrust of the police forces.
      Spying on citizens, Don Dumphy, accessing private information from workers comp sans warrant - charges should be laid on all offenders that trample citizens rights and take the law into their own hands.

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  7. NL Tories, (Liberals), aren't the only provincial government who have run the Hydro mega project into debt.

    Watch closely how the more progressive regime deals with cancelling lucrative contracts on the Site C.

    https://thetyee.ca/Opinion/2017/06/16/NDP-Faces-Mess/

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  8. Two Telegram items of interest:
    Muskrat is still a bit further behind than predicted last year, and has incurred costs of 6.5 billion so far. Minister Coady says "knowing what assumptions were used to justify the project, and why costs were not accurate must be clearly understood"..........which leaves to question why she has not called for a forensic audit..........even Beatrice Hunter has called for that.....lets make Beatrice the Energy minister and we'll get results on some of that.
    And Nfld power announced a birthday present for 150th of Canada..........a residential power rate hike of 8.1 percent, and right on Beaumont Hamel day, July 1.
    But not to worry, their CEO Perry says, because their Take Charge program is there and their FOCUS is to identify opportunities for efficiencies that benefit their customers, with practical ways with their programs and rebates.
    One practical way, as done for 100,000 families in Nova Scotia is rebates for mini-split heatpumps.
    Just how good are they at saving on heat? One day last week I measures a COP of 5.3, about 82 percent reduction as compared to baseboard heat.......although yearly average for heat would not be that high.
    82 percent reduction for a cold June is NOT PRACTICAL it seems , so there is no focus on that by Nfld Power for customers. Now 2 percent savings .........WOW.......that is the stuff they focus on. Wonder why.
    Lets look at the Telegram item of June 27, 2016. It quotes James Feehan in the item titled LOCKE SHOCKED BY MUSKRAT UPDATE (then at 11.4 billion). Feehan is quoted as saying if rates go too high "that may lead people to invest in heat pumps"..........
    Any wonder no rebates for heatpumps.....or that Feehan was appointed to the Oversight Committee.....perhaps he can help Coady understand why heatpumps were not considered in the assumptions used as an alternate to Muskrat.......if only they focused on energy saving measures for customers that was PRACTICAL we should ask.
    JAMES JOB SEEMS TO BE TO HELP DISCOURAGE HEATPUMPS.... which means business as usual for Take Charge...........but rather late .....the word is out......heatpumps is NOT JUST PRACTICAL, BUT THE MOST PRACTICAL WAY. Even Russell at the Telegram, saw the light, and installed mini-splits recently.
    Winston Adams

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    1. Looked up the GJ Cahill website. They certainly have developed technical expertise, based on the fossil fuel industries, and are being extolled by Professional Engineers conference as the leading M & E Engineering firm, with the future well in hand, in the East. Could not find any Renewable Energy projects in their resume though. Pity.

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    2. "Nalcor will provide a cost and schedule update in June 2017. Analysis of that update will be provided in the next oversight committee quarterly report"
      From the Evening Telegram today. Was this just a Friday buried news item?
      What is the forecast cost to complete estimate and commissioning schedule? etc.? We shall watch with interest.

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  9. Keep an eye on the new Minister of Energy in NS.

    https://energy.novascotia.ca/sites/default/files/Electricity-Plan-Summary.pdf

    Cute little diagram on energy sources. No direct link shown to NL though. How "Renewable" will NL supplied power be? Does NL have a similar diagram of energy sources for 2015-2040?

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  10. Where does NL future Energy Strategies relate with certain realities? Beothuk Energy may be on the right track.

    https://www.bloomberg.com/news/articles/2017-06-15/solar-power-will-kill-coal-sooner-than-you-think

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  11. Thanks Robert for the info on NS Electricity Plan 2015 -2040,45 pages......seems generally what ever they do , which works , we do the opposite.
    So they expect no rate increases from 2015 to 2019, while we go through shock rates and double the cost for electricity.
    Winston

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  12. Below shows the kwh used for heat for week of June 4-10, Sunday to Saturday.

    June 4 ... 5 .... 6 ..... 7..... 8.... 9.... 10
    5.14 ... 33.79...23.43.. 4.43..3.97. 2.85.. 3.94
    8.4C ... 3.7C ...5.5C .. 5.3C.. 6.5C..15.3C..10.1C

    Monday and Tuesday, the high numbers I switched to baseboard instead of the mini-split heatpump. Temperature constant indoors at 73 F. The temperature is outdoor daily mean temperature, however the compressor unit of this mini-split is in the attic, and benefits from higher temperature from solar gain.
    Tue and Wed were similar days , with some sun. Baseboard used 5.3 times more energy on the daily basis. At about 11am, the ratio was about 6.5 times.
    Newer more efficient units could do a bit better, but who complaining.
    This time of year with the sun at its max angle, attic solar gain is at its best, boasting efficiency, giving house heating electricity reduction 81 percent on a day with some sun. There is solar gain through the black shingles, aiding the heatpump efficiency throughout the year, and savings generally not less than 65 percent. Why would Nfld Power promote this or inform customers of its potential for savings?
    Winston Adams


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    1. The night time low temperatures were:
      3.1, 2.0, 1.1, 0.0, -0.1, 8.0, 7.2C
      So, near the freezing mark for the first 5 nights.
      WA

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  13. Placing the compressor of a minisplit in the attic seems like a very logical option in this climate. It keeps the freezing rain off it, benefits from the heat on the black shingles and heat coming up from the house below through the insulation, keeps the wind off it and even improves the aesthetics. It would probably not deliver as much efficiency for air conditioning but that is not a factor for me because I can handle to the 3 or 4 days per year where it might be needed.

    All the above being said, the Internet advises against putting it in the attic and I'm not sure why. Is there condensation that must be piped away? Would the attic need a lot more than the standard ventilation? Are there other factors?

    Thanks
    GP

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    1. GP, see my reply on UG post of June 18
      WA

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