28 May 2014

Coleman, Marshall, and the Broken Chain of Accountability #nlpoli

The Telegram’s James McLeod started a story that appeared on 26 May with the following sentence:

Premier-designate Frank Coleman says he wants to run a premier’s office with fewer people, and he’s starting that already — six weeks before he becomes premier.

What neither McLeod, nor his editors, nor anyone else in the province’s news media seemed to wonder is how Coleman did that.  They’ve all treated events last Friday evening as normal.  They’ve reported it as routine.

According to NTV’s Mike Connors Frank Coleman said that he and Tom Marshall agreed to Friday’s events.  That is, they both agreed to sack all but a couple of Tom’s staff members and replace them gradually with people of Coleman’s choosing.

For his part, Tom Marshall insists that he appointed Coleman’s people and that there is only one Premier in the province.  That’s all beside the point, though, as Marshall well knows.

Tom even tried a little misleading information on Tuesday morning in an interview with VOCM’s Fred Hutton.  Marshall likened the current situation to some of the people just sacked who had worked for previous premiers.  That comparison is nonsense, again, as Marshall well knows.

In the examples Marshall mentioned,  the individuals carried on in their positions as new premiers took office.  None of them worked for the boss’ successor before the successor took office.  Indeed, in the whole of British parliamentary history for the past couple of centuries,  the whole of Canadian political history since the early 19th century, and in Newfoundland and Labrador political history you won’t find a single example of a premier who dismissed all his own staff and allowed his successor to determine who worked in the office.

You also won’t find an example of someone who has taken upwards of six months to find a seat in the legislature and that after becoming premier some time before that. In Coleman’s case,  he isn’t even the acknowledged leader of a political party yet.  He won’t get that position until early July.  Some unknown time after that he will become premier and some time after that – he has talked about “the Fall” – Coleman plans to run in a by-election and get a seat in the House of Assembly.

Authority and Legitimacy

We’ve talked before about Frank Coleman and the ideas of authority and legitimacy.  Not surprisingly, we are talking about them again.  Authority is the power to do something.  In this case, it is the power to run the government as premier.  In our political system, the way it’s been operating the last few decades, you get that authority to be premier by standing for election as the leader of the political party that wins the most seats.  The election is the way you get to exercise the authority legitimately, that is, in a way that everyone will accept.

Noted constitutional authority Eugene Forsey put it this way in How Canadians govern themselves :

When the men who framed the basis of our present written Constitution, the Fathers of Confederation, were drafting it in 1864–67, they freely, deliberately and unanimously chose to vest the formal executive authority in the Queen, “to be administered according to the well understood principles of the British Constitution by the Sovereign personally or by the Representative of the Queen.” That meant responsible government, with a cabinet responsible to the House of Commons, and the House of Commons answerable to the people. All of the powers of the Queen are now exercised by her representative, the Governor General, except when the Queen is in Canada.

Responsible government:  cabinet responsible to the legislature, in our case the House of Assembly,  and the House of Assembly answerable to the people of Newfoundland and Labrador.

As Forsey notes in several places,  the leader of the party with the most seats in the legislature might wind up without a seat of his or her own in the legislature for many reasons.  By convention,  that is, by generally accepted practice over decades, the leader without a seat will get one “very soon,” according to Forsey. A premier “may lose his or her seat in an election, but can remain in office as long as the party has sufficient support in the House of Commons to be able to govern, though again, he or she must, by custom, win a seat very promptly.”

Very soon.

Very promptly.

Other authorities might say that the first minister must get a seat in the legislature in a reasonable period.  In federal politics,  the Liberals elected John Turner as leader on 16 June 1984.  He took office as prime minister on 30 June and called an election on July 9.  In Newfoundland and Labrador,  Clyde Wells didn’t win his seat in the 20 April 1989 general election.  he took office as premier on 05 May.  Ed Joyce resigned his seat, Wells won the subsequent by-election by acclamation and then met the House as premier within 30 days of the general election.

Both of those would fit most definitions of very soon, very promptly, or even a reasonable period.

But what do those terms mean exactly?

The truth is, no one knows for certain.  There’s actually very little written in the constitution either of Newfoundland and Labrador or Canada about first ministers.  All of the things Forsey says describe the custom, as he points out.  They’re still legal requirements and they are almost certainly part of our constitution,  which means that they can’t just be changed at a whim. 

But all the rules about premiers and prime ministers are ones that people have followed along by general agreement. In Newfoundland and Labrador, as in Canada, we copied the customs of the British parliament.  We’ve followed them from 1855 to 1934 and, after the Commission Government, from 1949 to the current day.

Premiers have followed the convention about getting into office quickly because that was the only legitimate way they could do what they wanted to do.  In each case, their predecessors jealously guarded all of their powers and their prerogatives – like the one to make appointments – because they are the ones that gave the office and the individual in it the sort of influence and power needed to run a government.

If you trace back through the British tradition that we follow, you’ll also find that from the Magna Carta through the Civil War and the Bill of Rights,  the British system gradually took real power away from a monarch who ruled arbitrarily and at times in secret and gave it to a popularly elected assembly.  That’s why that responsibility chain Forsey described reads like it does:  cabinet (the government) answers to parliament and the parliament answers to the people.

No parliamentarian since 1689 and the Bill of Rights would have ever considered a situation like the one in Newfoundland and Labrador today.  They certainly would never have conceived of a situation in which a sitting premier would – in effect - delegate the authority entrusted to him legitimately as the leader of an elected, majority party to someone with absolutely no claim on that power at all.

That’s effectively what Tom Marshall did when he agreed to let Frank Coleman decide who will work in the Premier’s Office.  If Tom can agree to surrender that prerogative, we can legitimately ask now what else Marshall has allowed Coleman to decide.  We know that Coleman has attended caucus meetings, normally the privilege of someone sitting in the legislature.  We also know that Coleman has attended cabinet meetings.  His most recent visit – last week – was on a Thursday, the day when cabinet normally meets. What has Coleman been involved with?  What has he been directing?

A week ago,  we could accept Tom Marshall’s assurances that he was the premier of the province and that, as he said when he took office, that he intended to run the government as if he had his own mandate.  The Friday Night Massacre of his political staff also slaughtered that claim, as well. 

Marshall’s insistence on Tuesday that everyone involved in the Friday Night Massacre is working on the same team doesn’t actually change the magnitude of what is going on. Marshall quite obviously included Frank Coleman in his definition of team. Coleman understands his place in the team.  As he told the Telegram:

“We just felt that, leading up to this period now, that it was a good time to make moves and kind of have some people in place and understand the files and be fully briefed going forward, post-July 5.”

Other administrations faced with a transfer to a new premiership managed to do that without replacing one group of political staffers with another in advance of the new premier taking office.  For some unknown reason,  Coleman wanted to put his own people into positions of authority before July 5.  That is what Marshall allowed last Friday. We should wonder why Coleman needed and why Marshall agreed.

The fact remains, though, that Coleman has no legitimate claim to any political power, nor does Marshall have a moral or even a legal right to transfer – even slightly – the power of the Premier’s Office to someone like Coleman.

Court Government

The Friday Night Massacre is a sign that the Conservatives are ruling the province in the fashion that political scientist Donald Savoie has called court government.   “The chain of accountability, from voters to MP, from MP to prime minister and cabinet ministers, from ministers to the heads of government departments and agencies, and from senior civil servants to front-line managers to their employees, has broken down,”  Savoie wrote in the Globe and Mail.   SRBP readers will remember this from a post in 2008.

Those traditional centres of political power and legitimacy have been replaced by power exercised by the first minister and his court of advisors and associates.  As Savoie notes,  the first minister’s courtiers are, for the most part, unelected.  Danny Williams ruled this way with the steadfast support of his hand-picked staff as well as finance minister Tom Marshall.

It is no accident that Williams picked one of his own court – Kathy Dunderdale -  to succeed him and then worked to keep her in office as part of the first back-room deal.  Nor is it an accident that Tom Marshall, another of Williams’ courtiers,  replaced Dunderdale and that, in turn, Williams stepped back into the political daylight as part of the group who advanced Frank Coleman as their new representative.

There is too much of a similarity between Frank Coleman and everything that has gone before him for it to be a coincidence.  His messages are the same.  His egotistical complaints about answering questions are the same.  He attacks the news media in the same way.  He even uses the same hyperbole as the other members of the court.

The New Normal

What is particularly noticeable is that all the members of the court consider that their actions are normal.  It’s not just that they say that it is normal, as if it was some put-on.  They genuinely do not see anything unusual about what they are doing.

They also see no reason to explain themselves to others.  Take the Friday Night Massacre as a case in point.  Under any circumstances, even if one accepts that the appointment of Coleman’s staff were a normal thing to do,  for example, you might expect that Marshall and Coleman would have used the opportunity to mark a milestone in the political transition.

Instead, they did it quickly and, as it seems, in the belief that the whole thing would pass unnoticed.  The statement that the Premier’s Office issued eventually seemed hastily prepared.  It also didn’t contain much information. Most of the statement was platitude:  “As with any transition, there will be change…Change also brings renewal and revitalization, and the party is looking forward to the next six weeks as a productive period, culminating with our convention in July.” 

July isn’t the culmination of Coleman’s long journey to power.  He will still have to stand for election not 30 days or even three months after emerging as the eventual leader of the Conservative Party.  He will stand for election and presumably obtain the legitimate authority as Premier upwards of four or five months after he actually began exercising the premier’s powers, even if by proxy.

This is the new normal.  A group that can command a majority of the legislature can ignore the constitution with apparent impunity. Given the precedent that Coleman has set already, there would be little to stop a future group of courtiers from quietly transferring more and more de facto authority away from elected politicians to someone like Coleman who could, in theory, never take elected office. 

Before dismissing such a thing, consider the current situation more carefully.  Coleman may not run in a by-election until October or November. At that point, he could arguably refuse to call the House for a fall sitting as his new administration and newly appointed cabinet ministers, some without seats in the House themselves, take their briefings and figure out what they will do. 

We may well see the Conservatives closing the House in a few days and not answer to the public through the House of Assembly for the better part of a year.  The chain of accountability in Newfoundland and Labrador is already weakened by the way Coleman and the Conservatives are behaving.  They may well break it entirely as they indulge their sense of entitlement to exercise power without any form of meaningful accountability. 

"We should no longer tolerate court government,” Savoie wrote in 2008, “by which a political leader with the help of a handful of courtiers shapes and reshapes instruments of power at will.” Savoie also understood the obstacle to meaningful change:  those “with the power to introduce change for the better are reluctant to do so because they enjoy being able to wield tremendous power.”