The situation of Parliament during a prolonged period of political crisis

I have previously written about the convention of caretaker government here, and here. That convention holds that during an election campaign, the ministry continues to hold office until a new ministry is sworn in. There are, however, limitations on what a minister can do during both the election campaign and the period of government formation following a general election.

For Canadians (as well as people in the UK, Australia and other countries), there normally isn’t much of a delay in forming a new government following a general election. Usually, it is known on election night which party will form the government. This isn’t always the case, however. In 2010, in the UK, it took five days of intense negotiations between the three main parties before a new government emerged, the Conservative-Liberal Democrat coalition government. During that time, the Labour party under Gordon Brown, which had been the incumbent party, acted as the caretaker government.

In countries which use some form of proportional representation rather than First-Past-the-Post, because of the need to form coalition governments, it isn’t unusual for several weeks to go by before a new government emerges. Generally, however, this caretaker period is still of a fairly short duration. However, following the 2010 parliamentary elections in Belgium, the caretaker period lasted over 500 days.

I came across a very interesting paper by Mr. H. Hondequin, the Secretary General of the Belgian Senate, prepared for a conference of the Association of Secretaries General of Parliaments, wherein he discusses the situation of the Belgian parliament during a prolonged period of political crisis. You can download his paper (it’s a docx) here, but I will summarise the main points below.

Belgium, like Canada and the UK and other countries, is a parliamentary democracy. That means that there are no elections separate from the parliamentary elections to elect a president who then appoints the government. As is the case in Canada and the UK and other countries, the prime minister emerges from the parties which end up forming the government.

As Mr. Hondequin explains, there are normally twelve parties represented in the parliament, and it generally requires six parties to agree to work together to obtain a simple majority. If a governing coalition wants to amend the constitution, this requires the cooperation of an even larger number of parties since constitutional change requires a two-thirds majority to pass. As Hondequin explains:

All these elements – the large number of parties, the search for an agreement on the institutional development of the country, and therefore, in practice, the search for a qualified majority – combined with the difficult economic situation and therefore with the importance of the socio-economic choices that had to be made, explain why the formation of the government after the 2010 elections was a real Echternach procession, or for the benefit of those who are unfamiliar with that event, a journey of two steps forward followed by one or even several steps back.  However, where the Echternach procession manages to cover its route in one day, the “Belgian” procession took a year and a half.  The government in power since 2007, resigned on 22nd April 2010 and that resignation was accepted 26th April 2010.  Parliament was dissolved on 7th May 2010 .  The elections were held on 13th June 2010.  The new government was finally sworn in on 6th December 2011, and obtained the confidence of Parliament on 7th December 2011, or 540 days after the elections and almost 600 days after the resignation of the previous government.

This does not mean that there was no government during that time. Parliament convened in accordance with the Constitution on 6 July 2010. The departing government continued on as a caretaker government. Hondequin explains that in Belgium, the concept of a caretaker administration was developed by the courts. A caretaker government is limited to covering “urgent matters where decisions cannot reasonably be postponed, acts of day-to-day management and acts which form the continuation or completion of procedures which had been started in a legitimate manner before the regime of caretaking administration took effect.” As well, minus a few very specific exceptions, the caretaker government does not take any legislative initiatives, and nor does Parliament.

A government in Belgium, as in Canada and other parliamentary democracies, stays in power because it has the confidence of the House and is subject to oversight by parliament. However, in the case of a caretaker administration, while parliament’s power to exercise oversight remains, the confidence convention does not. As Hondequin explains: “Withdrawing confidence from a government that has already resigned has no meaning or effect. You cannot kill a dead person!”

It has long been argued in Belgium that a caretaker government does not have sufficient legitimacy to introduce bills, to take position on private members’ bills, to propose amendments to these bills, or even to enact or promulgate  bills that would nevertheless have been adopted by parliament.  It was inferred that one of the branches of the legislature was unable to act and that the legislative process therefore should stop altogether.

It is true that until recently, there was no real in-depth legal reflection about this issue.  However, as the negotiations on the formation of a new government lasted longer and longer, the reflection deepened, first in academic circles, then with some reluctance, in the political world.

The newly elected members of parliament, if they had followed long-established tradition, would have been forced to face a long period of inactivity. However, as the political crisis dragged on, and this in a climate of economic crisis requiring problems to be addressed, they gave the matter serious consideration.  Both in the House of Representatives and the Senate, they consulted their legal services.

These services, basing their opinion on old and recent legal doctrine, pointed out that the figure of a caretaker government limits the scope of government action as executive power, when it cannot be politically sanctioned by parliament and that it therefore protects the prerogatives of parliament in the exercise of political oversight over the executive.

On the contrary, in the exercise of the legislative function, Parliament holds the key role.  It is parliament that votes the laws. Parliament always has the last word, whether the law emanates from a parliamentary or a government initiative.  In legislative matters, the fact that the government is a caretaker administration in no way affects the powers and means of action of the parliament, or the balance of the system of division of powers.

It is ultimately this view that prevailed.  Both during the caretaker regime of 2007 and the very long one in 2010, the House of Representatives and the Senate passed a number of laws on the most diverse subjects, resulting from both governmental or parliamentary initiatives.

Hondequin goes on to say that the laws adopted during this period were “technical” – in other words, laws which did not involve fundamental choices or major political debate, and that they were usually adopted without much debate and with more or less the unanimous support of both houses. Also, whenever the caretaker government wanted to bring forward a bill, it took great pains to justify to parliament why the bill was necessary and to consult with parliament beforehand.

He adds that another change which occurred due to the prolonged period of caretaker government was the implementation of various forms of questioning the government via oral and written questions, debates and hearings. In the past, parliament did not question the caretaker government, but as the crisis went on and on, parliament felt it was necessary to change this practice.

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