It’s not about who wins the most seats

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Canadian Liberal Party leader Michael Ignatieff issued a statement on the weekend addressing the issue of whether he would form a coalition with any other party or parties should the Liberals end up with the most seats, but not a majority, in the 2 May election.

Ignatieff categorically rejected the idea of coalition. This post is not about that.

Ignatieff’s statement contained the following claim:

Whoever leads the party that wins the most seast on election day should be called on to form the government.

If that is the Liberal Party, then I will be required to rapidly seek the confidence of the newly-elected Parliament. If our government cannot win the support of the House, then Mr. Harper will be called on to form a government and face the same challenges. That is our Constitution. It is the law of the land.

Unfortunately for Mr. Ignatieff, this is not how our parliamentary system works. Parliamentary custom and convention dictate that, in the event of a hung Parliament, the incumbent Prime Minister has the right to remain in office and attempt to form a government that will command the confidence of the House of Commons, even if his or her party won fewer seats than another party.

In the event that another party win a clear majority of seats, then the incumbent party very obviously would not be able to command the confidence of the House and usually resigns immediately.

There are other scenarios, however, where the issue is more complex. In the May 2010 UK General election, the incumbent Labour government finished second in seats to the Conservatives, but neither party won a majority. However, it was Labour’s prerogative to attempt to see if it could arrive at any agreement with other parties that would allow it to  command the confidence of the House. When it became clear that no workable agreement was possible, Brown resigned as PM, five days after the election. He did not wait, nor did he need to wait, to see if the coalition talks between the Conservatives and the Liberal Democrats would come to fruition, since it was clear to him that one way or another, the Conservatives would form a government – either a minority Conservative government, or else a coalition with the Lib Dems.

In the event that the Liberal Party wins more seats than the Conservative Party in the 2 May election, but falls short of a majority, it will still be incumbent PM Stephen Harper’s right to attempt to form a government that would command the confidence of the House. If he determines that this is not possible, then he will resign, and only then will the Liberals be asked to form the government. However, if Mr. Harper is able to work out some sort of agreement with another party, or parties, that would allow him to command the confidence of the House, it would be his right to continue to govern, even if the Liberals had more seats.

Such a scenario is highly unlikely, however. Mr. Harper has framed the concept of coalition as something very negative, and has also stated that a coalition is only legitimate if it includes the party that won the most seats.

It is unfortunate that some in the media repeated Ignatieff’s claim that the party that wins the most seats should form the government – see this column by Andrew Coyne. Coyne later admitted that he was wrong on this point.

This situation is similar to when, during the UK general election campaign last year, Lib Dem leader Nick Clegg was asked under which circumstances his party would support an attempt to form a government. Clegg stated that in his opinion, “whichever party gets the most votes and the most seats, if not an absolute majority, has the first right to govern, either on its own or by reaching out to other parties.”

Clegg’s comment was initially included in the draft version of the 2010 Cabinet Manual as a footnote. The Cabinet Manual is an account of the workings of Cabinet Government that consolidates the existing unwritten, piecemeal conventions that govern much of the way central government operates under the existing constitution. It was authorized by Gordon Brown in February 2010, and in December 2010, a full draft was released for consultation. However, the House of Commons Political and Constitutional Reform committee raised some concern that while the December 2010 Manual “provided greater clarity on the extent to which an incumbent government has a right to stay in office to see whether it can command the confidence of the House of Commons”, the “inclusion of the comments made in May 2010 by the Leader of the Liberal Democrat party may suggest that this view will carry weight in future.” Upon its recommendation, that footnote of Clegg’s comment has been removed.

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