Column: Grey Area After Crockwell’s Resignation

July 7, 2016

[Opinion column written by Larry Burchall]

Shawn Crockwell’s resignation from the OBA on Friday, takes Bermuda into interesting political and Constitutional waters.

There seems to be a ‘grey area’ in the Bermuda Constitutional Order, 1968 [BCO1968]. This ‘grey area’ deals with the exercise of powers that are the preserve of the Governor himself. They are areas where the Governor can and may ‘act alone’ and is not specifically bound by detailed sentences and clauses set out in BCO1968.

The Situation

Commencing sunrise on Saturday 2nd July, the current Premier can now only command the votes of 18 MP’s [his own + 17 others]. The Leader of the Opposition can only command the votes of 16 MP’s [his own + 15 others]. There is, by tradition and custom, a non-voting Speaker of the House and now, one Independent MP.

With the support of one Independent MP, the L/Opp would only command the votes of 17 MP’s [his own + 15 others + 1 independent]. this is not a Parliamentary or voting majority. It is still a minority when compared to the 18 still controlled by the Premier. The Speaker of the House stays aloof.

However, one more MP formally rejecting the ruling party’s whip means that the Premier would then only command 17 votes [his own + 16 others]. This is not a majority of the House. However, the L/Opp can still only command 16 votes [his own + 15 others] because the two Independents might abstain. So the existing Premier would carry on.

However, if both Independents agree to remain as Independents but to support the L/Opp, then the current L/Opp would then be able to command or deliver 18 votes [his own + 15 others + 2 Independents]. The L/Opp would therefore be able to deliver a voting majority, though not a Parliamentary majority made up of his party members.

That could enable the L/Opp to tootle off to Government House and ask the exercise his reserved powers Governor and act in accordance with Section 49 of BCO1968.

That single paragraph 49 does not spell out reams of picky details. Much seems to be left to the judgment of the Governor which is why I describe it as a ‘grey area’.

Three Options

In what can be a quick, furious, and ruthless national political in-fight, here are three possible courses of actions:

Course One: The Premier can use his still existing majority to call a General Election and do so before anything else changes.

Course Two: With just one more defection, the Leader of the Opposition can speed off to Government House and ask the Governor to canvass the House and confirm that he, the L/Opp, now commands a majority of the votes in the House. The Governor could be loosely bound, by Westminster custom and tradition, to accede to this request.

If it transpires that the current L/Opp can, in fact, guarantee and show that he has a majority of the votes, then the Governor can ask him to form the ‘government’.

Thus a change in national leadership without a General Election. But this would only hold until the existing five year mandate ends in December 2017.

Course Three: The current Premier hangs on to 17 or 18 votes. The L/Opp can only command 16 votes. Any Independents refuse to promise or guarantee their support to either party. This leaves the current Premier to struggle on and try and pass bills with his 17 or 18 votes.

That state of untidy affairs can carry on until the point arrives where the Governor judges that the ruling party is not bringing in and passing legislation; or is not calling for the House to sit; or is otherwise trying to circumvent the normal Parliamentary process.

If the Governor arrives at that judgment, he has two options.

Option one, ask the L/Opp if he can provide a majority of votes. If the L/Opp can, then the L/Opp becomes Premier and tries to get legislation passed in the House. If that doesn’t work, then the Governor can dissolve Parliament and order a General Election.

Where we are today.

In laymen’s terms, that’s where Bermuda is on this day and going forward this week. However, today’s situation can change as rapidly as it changed on Friday 1st July 2016. In this highly fluid situation, I certainly will not forecast into next week.

- Larry Burchall

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Comments (11)

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  1. Brainiac says:

    Thanks Mr Burchall for giving me a clear cut understanding fully on how the Westminster system works.

    • Today it is Real says:

      SPOT ON …..MR. BURCHALL INTERESTING INDEEDY AS BETTY WOULD SAY

  2. Trisha says:

    Well after this upsetting news.
    Bermuda immigration needs to really go and catch any elligal activity. Show respect to Bermuda and it’s people.

  3. LostinFlatts says:

    Knowing this certainly puts Mr. Crockwell’s decision into context. He has unilaterally decided to put the country onto an uncertain path, I’m quite sure he understood this.

    Obviously none of us know precisely what it is he is feeling, but I do hope he realises the gravity of his personal decision. It is not about him, the individual, but because of the system he has chosen to be part of, it becomes about the entire country and its future.

    Given his record and background in politics, one imagines he can’t be a fan of the current opposition. And yet, he may have just given them back the country. One they spent a good 14 years ruining.

    He either didn’t realise the ramifications of his actions, or perhaps worse: didn’t care.

    • PBanks says:

      Possible third reason (and some may feel it’s only an extension of the second reason) is he felt that he couldn’t in good conscience stand with the OBA, regardless of the chances of Parliament being in limbo.

  4. San George says:

    Long story short – the PLP were very successful by ensuring that there will never be a super majority in the House of Assembly again – during what some call their failed 14 years. Not a failure if you ask me! The political party in power will now have to govern properly or they are gone; they will have to consider the opinions of their very bright MP’s Mr. Crockwell bein one. That means financial prudence and justice for all. Quo Fata Ferunt

  5. Brainiac says:

    People better be careful denigrating Shawn Crockwell!! People are still looking for answers to JETGATE and other questionable practices……and Shawn Crockwell might have all the answers!!! Be very careful!

  6. I'm just sayin... says:

    A true “Lame Duck” Premier!

  7. Coffee says:

    Shawn has certainly squeezed the UBP/BDA/OBA/UBP ‘s sack . Only thing is this , that governor on the hill will only listen to one set of awful people !

  8. Sid says:

    The Premier continues in office until he resigns. He must resign if he loses a confidence vote in the House.

    If the Premier decides to stall votes in the House to avoid losing a confidence vote, he may do so. The only requirement in the Constitution Order is that the House must sit at least once per year. If the Premier wanted to stall for 11 months, that would be very silly but constitutionally valid.

    • Larry Burchall says:

      Hi Sid,

      “…stall votes in the House … sit at least once per year … that would be very silly but constitutionally valid.”

      Those points are all taken, understood, and accepted. But they presume that the party-in-power is operating in a power vacuum. That is not so.

      Two critical facts.

      ONE – There is a viable Opposition that can apply pressure on the Governor; and the Governor is obliged to listen to them. He may decide that the situation that you posit – one sitting a year – requires his intervention. The ‘grey area’ allows that.

      TWO – There is that irregular but disciplined crowd who, in March, took over Parliament Hill for five days. That kind of crowd action would mandate that the Governor act immediately. What would drive the Governor’s intervention is that any further deepening of the ‘very silly’ position that you posit might result in his having to invoke the “Emergency Powers Act 1963.”

      That would then have Bermuda in double-grey.

      Your idea might have been viable fifty years ago. But not now. Not today.

      Larry Burchall

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