Quite dishearteningly, the leaders of the three main federal political parties have made erroneous statements regarding government formation following a hung parliament result. All three have stated that the party with a plurality of the seats gets to form the government:
In an interview with the CBC, Conservative Party leader and current Prime Minister Stephen Harper made the following comments:
Q: HERE’S THE QUESTION THOUGH. UM IS IT A CORRECT ASSUMPTION TO MAKE THAT WHICHEVER PARTY ENDS UP, IF WE’RE IN A MINORITY SITUATION, WHICHEVER PARTY ENDS UP WITH THE MOST SEATS SHOULD FORM THE GOVERNMENT?
A: Yeah that’s my – that’s I think how conventionally our system works and for good reason and that’s – that’s my position. Obviously our view is we’re going to win and we’re going to win strong. Ah but ah my position has always been if we win the most seats I will expect to form the government and if we don’t, I won’t.
Q: SO EVEN AS THE CURRENT GOVERNMENT, IS YOU’RE JUST A COUPLE OF SEATS BEHIND, YOU WOULDN’T TRY TO FIGURE OUT A WAY TO –
A: No. No.
Q: YOU WOULD RESIGN.
A: Yeah. Well I would not serve as prime minister. No I think you – you have to have the most seats in Parliament to go to the governor general and that’s – you know, in this country in our system, we have what’s called a Westminster style system, um and we don’t – we don’t, you know, elect a bunch of parties who then as in some countries, get together and decide who will – who will govern. We ask people to make a choice of a government. And so I think that the party that wins the most seats should form the government.
Liberal leader Justin Trudeau, also during an interview with the CBC, echoed Harper:
“Yes, that’s the way it’s always been, whoever commands the most seats gets the first shot at governing. Whoever gets the most seats gets the first shot at trying to command the confidence of the House.”
In an interview with Macleans, NDP leader Thomas Mulcair explained his understanding of government formation:
Q: Should the party that wins the most seats at the next election form the government?
A: Yes. The party that forms the next government is the party that has the largest number of seats. That’s our constitutional order.
Q: Let me test that with a hypothetical: If it’s the Conservatives with 130 seats, and the other two parties between you have way more than that, should the Conservatives still form the government?
A: Our constitutional form of government says that the first kick goes to the party that has the largest number of seats.
Q: “The first kick”: The Conservatives would get to test the House, and then the House would decide?
A: Not really, because the NDP is going to be forming the government, because we’ll have the largest number of seats.
It’s difficult what to make of this. We have three party leaders, each one who has a legitimate shot at ending up Prime Minister after October 19, who either a) have no clue about how our system of government works, or b) do understand how it works and are deliberately misleading the general public by repeating generally held misconceptions about our parliamentary democracy. If it’s b), why mislead? Is it simply a political ploy to discredit the legitimacy of coalition government? Either way, I don’t know which of those two options troubles me more.
So for the umpteenth time, let us go over how government formation in our system of Westminster parliamentary government actually works.
1. We do not elect governments
We do not elect governments, nor do we elect the Prime Minister. A general election is in fact a multitude of single elections held on the same day — 338 to be precise. When you go to the polls to vote, you are voting in one of those 338 elections being held simultaneously across the country — one in each riding, or constituency. You are voting for the person you want to elect as your Member of Parliament (MP), that is all.
Now, you might be using your vote for an MP as a proxy vote of sorts for the person you would like to see as Prime Minister, or at least, for the party you hope will end up being the governing party; if that is how you choose to vote, that is your right. However, you have no control over, nor can you influence in any way, the outcome of the vote in the other 337 constituencies; therefore it would make more sense to focus on electing the best person to act as your representative in Ottawa.
Those 338 candidates who end up victorious on election night will form the 42nd Parliament. And it is that Parliament which will determine the form and composition of the government.
2. Responsible Government
Our parliamentary system of responsible government rests on what is called the Confidence Convention. Simply put, a government must command the confidence of the majority of the House of Commons. This convention mattered greatly in the early days of the British parliament — in the days before the emergence of the strong, centralised political party system we now have. Because political affiliations were much looser and fluid — and many MPs simply didn’t have any — prime ministers had to work much harder to convince a majority of MPs in the Commons to support their government and policies. Now, with our strong, modern, disciplined political parties, it is much easier for a government to maintain the confidence of the House, particularly if the party from which the government is drawn holds a majority of the seats. Party discipline is such that a government knows it will survive confidence votes. That said, it is important to understand that it doesn’t matter where that support comes from — be it only from ones own party ranks, or from across the floor. As long as the government has the support of the majority, it has the confidence of the House.
Certainly, when a party wins a majority of the seats in a general election, the question of the government having the confidence of the House is a rather moot point. The importance of the confidence convention becomes more apparent when no single party holds a majority of the seats. In a hung parliament,1 where no single party has a majority of the seats, then the matter of who can command the confidence of the House becomes more interesting and complicated. The party which thinks it can garner the number of votes needed from MPs from other parties to pass a budget or survive any other vote on a matter of confidence (be it explicit or implicit) can claim to have the confidence of the House, regardless of which party has the most seats. This support can be worked out on an ad hoc basis, from vote to vote, or parties can seek to form more coherent working arrangements, such as a formal agreement of confidence and supply between two or more parties (see Ontario 1985), or even the formation of a coalition government (as occurred in the UK in 2010).
But how do we determine who gets the first attempt at forming a government?
3. Incumbency matters, not seat count
Contrary to what all three of the party leaders stated, it is not number of seats won which dictates who gets the first shot at forming a government, it is incumbency. This is a bit more complicated, but bear with me — it should all make sense in the end.
During the election campaign, the incumbent Prime Minister and ministry remain in office because there must always be a government. Under the caretaker convention they cannot make decisions which would bind the hands of a future government. So they cannot make new policies, public appointments or let important government contracts, but they remain in place as the government. You may be wondering how and why the PM and ministry remain in office, especially since those individuals who were MPs are no longer MPs during the election campaign – and this would include the members of the government as well. If they are no longer MPs, how can they still act as PM or a Minister?
This is so for two reasons: first, there is no requirement that one be an MP to be named Prime Minister or a member of the Cabinet; and two, the members of the executive have sworn the Oath of Office. That is why even if a minister loses his or her seat in an election, he or she remains as minister until the ministry resigns or another individual is appointed in their place.
Which bring us to the matter of government formation. The default position is that the incumbent PM has the right to remain in office and meet the new parliament to test if s/he can still command confidence. It is because of the office he or she holds — that of the Crown’s first minister — and not the number of seats the party has, that the incumbent PM has the first shot at forming a government which will command the confidence of the House. If the incumbent PM can command that confidence, they will remain PM. If they cannot, they cannot remain as prime minister.
Some incumbent PMs, on election night, will decide then and there to announce their resignation as Prime Minister, thus clearing the way for the Governor General to appoint someone else Prime Minister. This is not an ideal situation. As explained above, there must always be a government. If it is clear to the incumbent that he or she cannot command the confidence of the House, it would be better if he or she refrained from tendering their resignation until it was clear that another government could be formed. For example, if two of the other parties are in the process of exploring some sort of governing arrangement — be it coalition or something else — then the incumbent ministry should remain in place (in their caretaker role), until it is clear an alternative government will emerge. In other words, the incumbent Prime Minister has not only the right, but I would argue, a duty, to remain in post while negotiations on who will be able to form the next government are taking place. As well as the incumbent Prime Minister, other ministers remain in post during the caretaker period. There is no requirement for caretaker Ministers to remain as MPs (or to be MPs) in order to continue acting in this role.
As a number of journalists and political commentators have pointed out in recent days, it is incumbency, not the number of seats, which determines who gets first go at forming a government following an election which results in a hung parliament. But what I have not seen addressed anywhere is that the incumbent PM and ministry not only have the right to remain in office, but also a duty to do so. As the UK House of Commons Political and Constitutional Reform Committee recommended in their report, Government formation post-election:
33. Should the outcome of the 2015 election result in a House of Commons with no overall majority, the public and media should expect to see the incumbent Prime Minister remain as Prime Minister, (…), even if there is little prospect that he will be able to form an administration. The incumbent Prime Minister should remain in office until it is clear that a new administration is in a position to form a Government which will command the confidence of the House of Commons. Indeed we consider that there is a duty on him to stay in place until such a time.
37. Following the 2015 election, in the event of a House of Commons with no overall majority and an extended negotiating period, the public should expect to see Ministers who have lost their seats in the House continuing in their ministerial roles until a new government has been formed.
1I would ask that we all stop using the term minority parliament as too many people confuse it with minority government, which is not the same thing. Better terms are hung parliament or balanced parliament.